Tuesday, 16 February 2016

Why does Canada not Want the Benefits of the Hague Evidence Convention?

          The Hague Evidence Convention* is a valuable tool for litigators.   If in one country a need arises for evidence (testimony of parties or witnesses, documents, audits of accounting records, among other things) from a foreign country, the courts of the first country can authorize a request be made to the courts of the second country, and that second country can use its coercive powers to compel such evidence on behalf of the court of the first country.   The Convention also provides for requests for other forms of judicial assistance.   The Convention is in force in fifty eight countries, including the U.S., the U.K., many western European countries including France and Germany, the People’s Republic of China, the Russian Federation, India, Brazil, Argentina and Mexico.   It has been in force in many of these countries since the 1970’s.  However, Canada has yet to sign, let alone ratify, the Convention. 
            If a litigant in any other country needs evidence from Canada, Canadian law provides for our courts to assist.  They can apply under the Canada Evidence Act R.S.C. 1985 ch. C-5 (s.46) or the Ontario Evidence Act R.S.O.1990 ch. E.23 (s. 60) for a Canadian court to give effect to a Letter of Request from a foreign court.  It matters not what country that Letter of Request originates from, even if that country would never honour a Letter of Request from a Canadian court.   Canadian courts will review the request and although they have discretion to accept or reject it, in whole or in part, they will generally accept the request.
However, if a litigant in Canada needs evidence from a foreign country, and submits a Letter of Request from a Canadian court, outside the Hague Evidence Convention, that request may not be accepted.  France and the Peoples’ Republic of China are examples of countries that will not accept any request except pursuant to a treaty such as the Hague Evidence Convention.   Some countries, such as Germany, South Korea and the Ukraine, will accept requests made outside of the Convention but they require the requests to be submitted via diplomatic channels, which tend to be a lengthy process.    
It comes down to this:  Ontario and Canada are generally helpful to foreign litigants seeking evidence, but do not take sensible steps to ensure Canadian litigants can get the same assistance from as many foreign countries as possible.   We already freely provide the assistance the Hague Evidence Convention would require if we joined it, but we miss out on the assistance we would gain.    Canada does have bi-lateral treaties with some countries, but not as many as are part of the Hague Evidence Convention. 
In fairness, it should be noted that there are some countries such as the United Kingdom and India that are receptive to requests even outside of the Hague Evidence Convention, if the request is made by a court (i.e. a letter of request).  Unfortunately, few provinces enable their courts to submit a letter of request, so they miss out even on assistance from these countries, but that is a story for another day.   Fortunately, the United States does not require a Letter of Request from a court.  Section 1782 of Title 28 of the United States Code empowers the federal district courts to compel testimony and/or production of documents upon the request of an “interested person”, even without a Letter of Request from a Canadian or other foreign court. 
The main take-home message:  Canadians are missing out on access to evidence in many other countries, because we have not joined the Hague Evidence Convention. 

*Its exact name is Convention of 18 November 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters.

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