The Litigator

THE LITIGATOR

Commentary on Law Affecting Business

The Litigator
AGM :: Affleck Greene McMurtry LLP

THE LITIGATOR

Affleck Greene McMurtry LLP
365 Bay Street, Suite 200  ·  Toronto, Canada
416 360 2800  ·  info@agmlawyers.com  ·  www.thelitigator.ca

The letters rogatory that got away

Last fall, the Ontario Court of Appeal overturned an order enforcing a request for (also known as letters rogatory) that sought to compel a former executive of a Talisman Energy Inc. subsidiary to be deposed in a U.S. action. to the U.S. court was refused on the basis that the request was overly broad and sought not relevant or necessary to the issues in the U.S. litigation. [1]

The request had been issued the U.S. for the Southern District of New York in a civil action brought against Canadian oil company Talisman by residents and former residents of . They claimed that Talisman, which has oil exploration and extraction operations in , aided and abetted Sudanese government acts of genocide, enslavement, torture, rape and other violations. Notwithstanding a lengthy process in the U.S. that had seen 21 Talisman executives already deposed, the New York plaintiffs also sought to examine Ontario resident, Richard Rybiak, who is a former manager with Talisman’s Dutch subsidiary.

Interestingly, the Canadian government had previously delivered a diplomatic note to the United States in January 2005 expressing concern over the New York litigation against Talisman. Among other things, the Canadian government opposed the U.S. court’s assertion of extra-territorial jurisdiction over Canadian individuals in relation to alleged activities taking place entirely outside the U.S.

On the initial application, Ontario Superior Court Justice Romain Pitt enforced the U.S. court’s request and ordered Mr. Rybiak to testify. Mr. Rybiak appealed.

In overturning the order of Pitt J. and refusing to enforce the U.S. court’s request, the Ontario Court of Appeal did not accept that the diplomatic note by the Canadian government meant that the U.S. court’s request was somehow improper or against public policy. However, the Court of Appeal did find that Justice Pitt had erred in enforcing the U.S. court’s request without addressing whether Rybiak’s evidence was relevant and necessary to the issues in the U.S. litigation and without considering whether the sought-after evidence was otherwise obtainable.

On behalf of a unanimous appeal panel, Goudge J.A. cautioned that, “without some showing of relevance, the court may be sanctioning a fishing expedition…” and found that an evidentiary record comprised of “bald assertions” of relevance by the plaintiffs’ New York lawyer did not meet that onus. Further, the New York court’s request sought evidence that went well beyond the matters at issue in the U.S. litigation and that was, in any event, available through other channels. In the circumstances, the order enforcing the U.S. District Court’s request for assistance could not stand.

This case illustrates that, notwithstanding the principles of international that call upon to give due regard to other ’ decisions and the trend toward increasing international judicial co-operation, Canadian enforcement of foreign letters of request is not a rubber stamp. in Ontario and elsewhere in Canada will be loath to enforce a foreign request that is not shown to meet Canadian standards of relevance, is overly broad, or seeks to obtain evidence that is available elsewhere. Parties seeking Canadian judicial assistance in support of foreign proceedings must put forward real evidence that addresses these issues or they risk having judicial assistance denied.

Published June, 2007
 

 

 

[1] For the full September 2005 decision of the Court of Appeal in Re Presbyterian Church of Sudan, link to:
http://www.ontariocourts.on.ca/decisions/OntarioCourtsSearch
_VOpenFile.cfm?serverFilePath=D%3A%5CUsers%5COntario%20Courts
%5Cwww%5Cdecisions%5C2006%5Cseptember%5CC44057%2Ehtm

Other Relevant Articles

Court of Appeal stays Ontario action in favour of the Iranian courts
by Kenneth Dekker 23/09/2006

Appeal court finds that “non-final” U.K. order should be enforced in Ontario
by Kenneth Dekker 14/06/2006

Hollywood studios successfully enforce breach of copyright judgment against Ontario website operator
by Kenneth Dekker  12/04/2006

Foreign litigants beware: A single piece of paper can force you to litigate a foreign-based action in Ontario
by Kenneth A. Dekker  14/11/2005

Does world wide web mean world-wide liability for cyber libel?
by Michael Osborne   02/11/2005

Should a foreign non-monetary judgment be enforced in Canada?  
by Angela Yadav  13/07/2005

Top Ontario court opens the door to recognition of foreign class action judgments binding Ontario plaintiffs   (Currie v. McDonald’s Restaurants of Canada Ltd.)
by Kenneth A. Dekker  02/03/2005

Canada’s Top Court Highlights the Perils of Ignoring Foreign Actions   (Beals v. Saldanha)
by Kenneth A. Dekker  01/05/2004

article keywords: letters rogatory, conflict of laws, courts, comity, enforcement, foreign, international, human rights, judicial assistance, Sudan, Talisman, , discovery, relevant, relevance, evidence, , District Court, New York, letters of request

Sonny Ingram
Affleck Greene McMurtry LLP

Sonny Ingram

Sonny Ingram is a former associate of Affleck Greene McMurtry LLP

Contributor's Archive