Canada

• Pages: 139-166

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CHAPTER VIII

CANADA

A. Introduction: Assistance in Obtaining Evidence in Canada

1. Legislative and Treaty Context

In Canada, a number of federal, provincial, and territorial statutes

allow for judicial assistance in obtaining evidence for use in proceedings

outside Canada.1 Canada is not party to the Hague Evidence Convention,2

to which the United States is a party. Thus, that Convention is not available

to U.S. litigants seeking to obtain evidence in Canada. Canada and the

United States are parties to an Agreement Regarding the Application of

Their Competition and Deceptive Marketing Practices Laws, entered into

on August 1, 1995,3 the purpose of which is to promote cooperation and

coordination between American and Canadian competition authorities.

1. The following is a list of the federal, provincial, and territorial statutes:

Federal–Canada Evidence Act, R.S.C. 1985, c. C-5, Part II, §§ 43-51;

Alberta–Alberta Evidence Act, R.S.A. 2000, c. A-18, § 56; British

Columbia–Evidence Act, R.S.B.C., c. 124, § 53; Manitoba–Evidence Act,

C.C.S.M., c. E150, § 82; New Brunswick–Evidence Act, S.N.B., c. E-11,

§§ 30-32; Northwest Territories–Evidence Act, R.S.N.W.T. 1988, c. E-8,

§ 72; Nova Scotia–Evidence Act, R.S.N.S. 1989, c. 154, §§ 70-73;

Ontario–Evidence Act, R.S.O. 1990, c. E.23, § 60; Quebec–Special

Procedure Act, R.S.Q., c. P-27, §§ 9-20; Saskatchewan–Saskatchewan

Evidence Act, S.S. 2006, chapter E-11.2 § 65; Yukon–Evidence Act, R.S.Y.

2002, c. 78, § 65; and Nunavut–Evidence Act, R.S.N.W.T.(Nu) 1988, c. E-

8, § 72. Two provinces (Prince Edward Island, Newfoundland and

Labrador) have no laws authorizing such assistance. There is no need to

resort to statutory procedures if the witness is prepared to testify and/or

produce documents voluntarily. Subject to the discussion of blocking

statutes below, this is not a violation of Canadian law or sovereignty.

2. Convention on the Taking of Evidence Abroad in Civil and Commercial

Matters, 23 U.S.T. 2555, T.I.A.S. No. 7444, 847 U.N.T.S. 231, reprinted

in 8 I.L.M. 37 (1969).

3. 1995 Can. T.S. No. 15. The Agreement replaced an earlier instrument,

entitled “Memorandum of Understanding as to Notification, Consultation

Obtaining Discovery Abroad

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2. General Principles

Although Canadian courts have not been uniformly liberal in

responding to requests for assistance from abroad, the current trend of

judicial authority is clearly in favor of responding positively to requests

for judicial assistance. Generally, Canadian courts have demonstrated a

willingness to apply their process to assist parties to civil litigation in

foreign tribunals to obtain evidence “out of respect for the comity of

nations and deference to decisions of foreign courts,”4 provided that the

request for assistance meets certain reasonably well-defined criteria. “In

addition, the court is required to balance two broad considerations in

deciding whether to exercise its discretion to enforce the Letter Rogatory.

Those considerations are the impact on Canadian sovereignty and whether

justice requires the taking of commission evidence.”5

The criteria that a request for assistance must meet can be summarized

as follows: (1) the request must come from a court or tribunal of

“competent jurisdiction;” 6 (2) there must be “mutuality of purpose”

and Cooperation with Respect to the Application of National Antitrust

Laws,” which was entered into between Canada and the United States in

March 1984. Canada and the United States are also parties to a Treaty on

Mutual Legal Assistance in Criminal Matters, which applies to criminal

antitrust proceedings and provides for cooperation in investigation,

prosecution, and suppression of offenses. 1990 Can. T.S. No. 19,

implemented by the Mutual Legal Assistance in Criminal Matters Act,

R.S.C. 1985, c. 30 (4th Supp.).

4. Zingre v. Queen, [1981] 2 S.C.R. 392, 401 (Can.) (“It is upon this comity

of nations that international legal assistance rests. . . . A foreign request is

given full force and effect unless it be contrary to the public policy of the

jurisdiction to which the request is directed . . . or otherwise prejudicial to

the sovereignty or the citizens of the latter jurisdiction.”) See also Maverick

LNG Holdings v. Teekay Shipping (Canada) Ltd., 2009 B.C.S.C. 1538,

para. 22-23 (Can. B.C. S.C.). The general principle of comity of nations

and deference to foreign courts’ decisions is not discussed in the paper but

is cited as a general principle in much of the case law.

5. Connecticut Ret. Plans & Trust Funds v. Buchan, [225] O.A.C. 106, para.

7 (Can. Ont. C.A.). “Commission evidence” is a term used to describe

evidence taken pursuant to a court order enforcing a letter of request or

letters rogatory from a foreign court. See also Ontario Pub. Serv. Emp.

Union Pension Trust Fund (Trustees of) v. Clark (2006), 270 D.L.R. 4th

429, 434-435 (Can. Ont. C.A.); Fecht v. Deloitte & Touche (1997), 32 O.R.

3d 417, para. 30 and 48 (Can. Ont. C.A.) (citing France v. DeHavilland

(1991), 3 O.R. 3d 705, 718 (Can. Ont. C.A.)).

6. King v. KPMG, 2003 CanLII 49333, para. 6 (Can. Ont. Super. Ct.).