The Ontario Court of Appeal in reasons released on September 13, 2010 in j2 Global Communications, Inc. v. B.C. et al . 2010 ONCA 594 refused to enforce letters rogatory to require the respondents be examined in Ontario in order to provide evidence for a civil action commenced in California.

The Court confirmed the six criteria to enforce request for international judicial assistance (letters rogatory), which were established in Presbytarian Church of Sudan v. Rybiak 2006 CanLII 32746 (ON CA) by the same Court as follows:

(1) the evidence sought is relevant;
(2) the evidence sought is necessary for trial and will be adduced at trial, if admissible;
(3) the evidence is not otherwise obtainable;
(4) the order sought is not contrary to public policy;
(5) the documents sought are identified with reasonable specificity;
(6) the order sought is not unduly burdensome, having in mind what the relevant witnesses would be required to do, and produce, were the action to be tried here.

The court upheld the application judge’s finding that the party seeking the order failed to establish at least two of those factors – “whether the evidence was otherwise obtainable and necessity”.

Citation: j2 Global Communications, Inc. v. M.A., 2010 ONCA 594

Masha Loftus M.A., J.D.

Brief informational summaries about commercial litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.