The Lexpert Guides to the Leading US/Canada Cross-Border Corporate and Litigation Lawyers in Canada profiles leading business lawyers and features articles for attorneys and in-house counsel in the US about business law issues in Canada.
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LETTERS ROGATORY request is contained in validly issued letters rogatory, it will not necessarily be enforced by the Canadian court. The request must meet the considerations outlined above, and may be modified by the court in any way it sees fit, bearing in mind the issues of international comity and the burden placed on the proposed witness. The court may also impose restrictions on how the evidence may be used in the American proceeding, including destruction requirements. In certain circumstances, counsel may need to coordinate and obtain American confidentiality or sealing orders, or provide other assurances to the court that sensitive information will be protected and not used for any purpose other than the American proceeding. her. Once served, the witness will have 21 days (in British Columbia) to respond to the petition. The American parties will have 35 days; 49 if they are international (again, in British Columbia; other jurisdictions in Canada may impose different timelines). An application to enforce can be heard soon after the time for everyone to respond has expired or all parties have waived the period for response. Be sure to consider any discovery cut-offs in the American lawsuit, and allow enough time to enforce the letters rogatory and examine the witness. Sixty days from the issuance of letters rogatory to the examination is a good rule of thumb. Shorter timelines may be possible in true emergencies. Timing is a Key Consideration Once the letters rogatory is issued by the American court, Canadian counsel must file in Canada a petition, supported by affidavits, to enforce it. If Canadian counsel has worked alongside American counsel from the outset preparing the letters rogatory materials, there should be little delay between the issuance of the letters rogatory and the filing of the petition. Canadian counsel will then serve the filed petition and affidavits on the witness and the other American parties. If the address of the witness is unknown, it may take some time to find and serve him or Detailed Communication Ideally, the terms of an examination under letters rogatory will be resolved through negotiation with the witness and the other American parties. However, if this proves impossible, American counsel must make sure that they are in the best possible position to enforce the letters rogatory in Canada by application to the Canadian courts. This is best done through detailed communication between American and Canadian counsel from the beginning of the issuance process, and by filing complete materials in both courts. Stephen Antle Borden Ladner Gervais LLP Tel: (604) 640-4101 Fax: (604) 622-5901 santle@blg.com Stephen Antle is a dispute strategist. He is a senior partner in Borden Ladner Gervais LLP and a Chartered Arbitrator. Stephen is an expert in preventing and managing all kinds of commercial disputes and, if necessary, resolving them through negotiation, mediation, arbitration, administrative proceedings or litigation. He has a broad range of experience, emphasizing strategic corporate governance advice, domestic and international commercial arbitration, contract troubleshooting and international dispute resolution issues (including letters rogatory). Stephen advises and represents corporations and individuals involved in a wide variety of businesses. He has appeared as counsel before mediators, domestic and international arbitration tribunals, administrative tribunals, all levels of court in British Columbia and the Supreme Court of Canada. Martindale-Hubbell AV® Preeminent™ 4.5 out of 5 Peer Review Rated. Michelle T. Maniago Borden Ladner Gervais LLP Tel: (604) 640-4139 Fax: (604) 662-5562 mmaniago@blg.com Michelle T. Maniago is a senior associate in the Commercial Litigation Group of Borden Ladner Gervais LLP's Vancouver office. Her practice focuses on commercial and corporate disputes, including corporate rectifications, corporate plans of arrangement, shareholder and director disputes, enforcement of foreign letters rogatory, banking and secured transaction disputes, and complex and complex contract disputes. She has acted as counsel or co-counsel in class actions, trials and appeals, and in domestic and international arbitrations. She has appeared before all levels of court in British Columbia. She also has experience in preparing complex legal opinions for clients and regularly provides advice for individuals and boards of directors. Before her Bar admission, she was a law clerk with the British Columbia Court of Appeal. www.lexpert.ca | LEXPERT • December 2013 | 35