LETTERS ROGATORY
OBTAINING
EVIDENCE FROM
CANADA: ENFORCING
LETTERS ROGATORY
NORTH OF 49
Detailed communication between American
and Canadian counsel and early coordination
help to enforce letters rogatory in Canada
By Stephen Antle and Michelle T. Maniago; Borden Ladner Gervais LLP
OFTEN IN LITIGATION, parties need to obtain evidence from a witness
outside the jurisdiction where the litigation is ongoing. When that witness is uncooperative
and resident in Canada, parties to foreign lawsuits can use letters rogatory (sometimes called
letters of request), which can result in the witness being compelled to produce documents and
be examined under oath. The resulting evidence can then be used in the foreign trial. While
this article focuses on letters rogatory in the American context, the principles discussed here
are also generally applicable to letters rogatory from other countries.
LETTERS ROGATORY: Judicial Requests for Assistance
A letter rogatory is a written request for help by one court to another, in this case by a foreign
court to a Canadian court, asking it to order that a witness in Canada provide evidence for
use in a lawsuit in the foreign court. Such requests are necessary because, under Canadian law
at least, foreign courts have no jurisdiction in Canada. So, for example, a standard American
witness or document subpoena has no effect in Canada and Canadian witnesses will generally
ignore them.
32 | LEXPERT • December 2013 | www.lexpert.ca
