Yes. Subject to certain blocking statutes (as discussed below), there is no general prohibition in Québec against foreign litigants taking evidence from a willing person in foreign civil proceedings. Parties to foreign proceedings may arrange to depose a willing witness in Québec 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 a Québec court must be sought by way of an application for rogatory commission.

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.

In Québec, the procedural rules and the requirements for obtaining evidence in aid of foreign litigation are found in the Code of Civil Procedure (Arts. 499-506).

Yes. A court order enforcing a letter of request is required in order to compel a witness in Québec to give evidence or produce documents in aid of foreign litigation. In Québec, such requests are typically made by way of an application to the Superior Court of Québec. The applicant must meet the conditions found in Code of Civil Procedure (Arts. 499-506) and those developed by case law, which include establishing that the evidence sought is relevant, necessary and not otherwise obtainable, as well established that the order sought is not contrary to public policy in Québec, identifies the evidence sought with reasonable specificity and will not be unduly burdensome on the witness.

The types of evidence that can be sought include examination of witnesses under oath (either orally or through written questions) and the production of documents.

The burden of showing whether a privilege applies is borne by the person asserting this privilege, typically the witness.  However, a Québec court must, ex officio, take measures to protect certain types of privileges, such as solicitor-client privilege. Moreover, the burden of showing that a privilege applies may benefit from a presumption in certain circumstances. For instance, when a client has given a general mandate to a lawyer, all communications between the client and the lawyer will be presumed to be privileged, thus shifting the burden to the party seeking to obtain evidence.

Even if a court grants an order giving effect to a foreign court’s letters of request, the Code of Civil Procedure permits 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 Québec, or when an issue of fundamental rights or one raising a substantial and legitimate interest is at play.

Yes. An application for a rogatory commission brought in Québec by a foreign party or authority will typically include the order from the foreign court requesting this rogatory commission. Additionally, in exercising their discretion to enforce the letter of request, Québec courts will consider whether the evidence is relevant and necessary for the foreign proceeding. In doing so, Québec courts will generally give deference to the determination of the foreign court in accordance with the principles of international comity.

Yes. A deposition may be conducted remotely by consent of the parties or by order of the court.

Both Québec 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, Québec courts may 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 Québec, the Business Concerns Records Act prohibits sending or removing certain specified Québec-based business records outside Québec pursuant to an order issued from another jurisdiction. This prohibition is subject to certain exceptions.

Persons residing in Québec 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 Concerns Records Act.

An arbitrator, or a party with leave of the arbitrator, may request the assistance of a Québec court to compel a witness to testify or produce evidence by making an application pursuant to the Code of Civil Procedure (Art. 634). This procedure is rarely used, but we would expect a Québec court to apply similar conditions as those applicable to letters of request.