Yes. Subject to certain blocking statutes (as discussed below), there is no general prohibition in Ontario against foreign litigants taking evidence from a willing person in civil proceedings. Parties to foreign proceedings may arrange to depose a willing witness in Ontario without permission from federal or provincial authorities. However, where the witness is unwilling to testify, or a blocking statute prohibits the production of documents, the assistance of an Ontario court is generally required.

Canada is not a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”) but has entered into about 25 bilateral Conventions on Legal Proceedings in Civil and Commercial Matters, which provide for the taking of evidence on a reciprocal basis between Canada and the states concerned. The conventions prescribe the manner of transmission of letters of request (also referred to as letters rogatory) to the competent Canadian authority and the information to be provided therein. Typically, the conventions provide that the judicial authority to which the request is addressed must give effect to it by the same compulsory measures as are used in the execution of a commission or order of the authorities in its own state. These conventions generally do not preclude reliance on the procedures available under the federal and provincial statutes discussed below.

In the absence of a convention between Canada and the requesting state, federal and provincial statutes govern the taking of evidence in aid of foreign litigation. In Ontario, the Canada Evidence Act and Ontario’s Evidence Act (together, the “Evidence Acts”) govern the enforcement of letters of request for the taking of evidence in relation to foreign litigation.

Yes. A court order enforcing a letter of request is required in order to compel a witness in Ontario to give evidence or produce documents in aid of foreign litigation. In Ontario, such requests are typically made by way of application to the Ontario Superior Court of Justice.

Ontario courts will generally give deference to letters of request in accordance with the principles of international comity, although an applicant must meet the statutory preconditions for enforcement under the Evidence Acts. Ontario courts also retain the discretion to decline to enforce letters of request where these conditions are met. In doing so, they will generally consider, among other factors, whether the request and/or evidence sought are relevant, necessary, proportionate and consistent with principles of Canadian public policy.

The types of evidence that can be sought include oral examination of witnesses under oath, examination by interrogatories (written questions), and the production of documents.

The ultimate burden and onus to satisfy the requirements for the enforcement of letters of request lie on the party seeking their enforcement. This includes satisfying the court that the request is not contrary to Canadian public policy, which will typically involve an assessment of whether the request violates domestic privilege laws. Where the specific evidence sought is presumptively privileged, the party seeking that evidence will bear the burden of rebutting that presumption. By contrast, where the presumption of privilege does not apply, an evidentiary burden to show a possible contravention of the law of privilege may, as a practical matter, rest on the party opposing enforcement of the letter of request.

Even if a court grants an order giving effect to a foreign court’s letters of request, the Evidence Acts permit witnesses giving evidence for foreign proceedings to refuse to answer any question or produce any document that the witness could not be compelled to answer or produce at trial in Ontario.

Yes. Under the Evidence Acts, obtaining the evidence in question must be duly authorized by the foreign court. Additionally, in exercising their discretion to enforce the letter of request, courts will generally consider whether the evidence is relevant and necessary for the fair determination of the foreign proceeding. The foreign court’s determinations in this regard will generally be accorded deference provided that the enforcement application adequately sets out the factual context and allegations involved in the foreign proceeding. Ontario courts may require a clear indication that the foreign court has given due judicial consideration to the relevance of the evidence sought.

The Canada Evidence Act permits a witness providing evidence in a foreign proceeding to testify by videoconference. Ontario’s Evidence Act also empowers Ontario courts to direct the form and manner in which evidence may be given for use in the foreign proceeding. Ontario courts will generally permit witnesses to give evidence in foreign proceedings remotely, including by videoconference.

Both Ontario and Canada have enacted blocking legislation that may apply to limit the extent to which certain documents may be provided as evidence in foreign proceedings. In deciding whether to enforce letters of request, Ontario courts will generally consider whether doing so would contravene the provisions of these statutes.

The federal Foreign Extraterritorial Measures Act empowers the Attorney General of Canada to prohibit or restrict the production, disclosure or identification or records where in their opinion the jurisdiction or powers of the foreign tribunal are, among other things, likely to be exercised in a manner that may adversely affect significant Canadian interests in relation to international trade involving a Canadian business or infringe Canadian sovereignty.

In Ontario, the Business Records Protection Act prohibits taking, sending, or removing certain specified Ontario-based business records outside Ontario under the authority of order, summons, or other judicial direction from another jurisdiction. This prohibition is subject to certain exceptions, including where the removal is provided for by Ontario or federal law. An order by an Ontario court enforcing a foreign court’s letters of request would likely fall within this exception.  

Persons residing in Ontario may voluntarily give evidence in a foreign proceeding, subject to any prohibition order served upon the person under the Foreign Extraterritorial Measures Act and the applicability of the Business Records Protection Act.  

Ontario courts will not enforce letters of request issued by a foreign private arbitrator. However, courts may enforce letters of request issued by a foreign court for use in private arbitration. In considering whether to enforce such letters of request, courts will generally apply the same criteria as applicable to letters of request for use in a court proceeding.