Friday, 22 April 2016

Proposed reforms would help in obtaining documentary evidence from abroad

The law of Ontario does not properly provide for obtaining documentary or physical evidence from outside Ontario, or for the inspection of property abroad or for medical examinations abroad.  As in the case of compelling testimony from people outside the province, one must arrange for assistance from the courts of where that evidence is located.  To do that, one must move for an order for the issuance of a letter of request (also known as letters rogatory) to go to the foreign court.   However, the relevant rules in Ontario’s Rules of Civil Procedure speak mainly to obtaining testimony, not documentary or physical evidence, inspections or medical examinations. 

Here is a condensed version of the submissions I recently made to the Civil Rules Committee.  
Rule 34.07 (2) (a) provides for the issuing of a commission for the “taking of evidence”, but the commission itself (form 34C) says nothing about obtaining documentary evidence.  
Rule 34.07 (2) (b) addresses the need to examine witnesses outside Ontario, by way of a letter of request to the foreign court to compel such witness to attend for examination, but it is silent about physical evidence, medical examinations or inspection of property. As for production of documents, that is mentioned only in the court form for a letter of request (form 34D), not in the rule itself.  That form includes a request that a witness be compelled to produce specified documents at an examination.  However, this does not by itself clearly confer power on the Ontario court to seek assistance for the production of documents outside Ontario.   The wording in the form goes beyond the scope of the rule and thus the legality of the form is in question.
Even if Form 34D validly creates power to request production of documents, some problems remain.  The first is the form says that the nature and date of the document must be specified.   The litigant seeking the documents may not know what documents exist, or if he/she does know, he/she may not be able to specify dates and other particulars. The rule ought not prevent a more general request.    The second is that a party may prefer to separate their requests for documents and for an examination of a witness.  A party may want to review documents before an examination, in order to plan the examination, or for that matter to determine whether testimony from that witness is even necessary.  The Rules ought to allow litigants more latitude for their requests.  The foreign court may or may not grant all the assistance requested, but it is quite unlikely to grant assistance not set out in the Letter of Request.
Documents that are located outside Ontario and which are in the possession of a party are caught by Rule 30.02, which says that parties must disclose “every document relevant to any matter in issue” in their “possession, control or power”.   This obligation is not expressly limited to documents inside Ontario, and a party that resists disclosure and production risks sanctions such as an order striking out his/her defence (rule 60.12).  However, there is a need to be able to request assistance from a foreign court to obtain that document, for the same reason that there is a need to be able to request such assistance to obtain testimony from a party outside Ontario.  Moreover, Rule 30.02 does not extend to documents in the possession of non-parties, and Rule 30.10 (production from non-parties) says nothing about documents outside Ontario.
Rule 36.03 – examinations outside Ontario for taking evidence before trial is also silent about seeking assistance for anything other than compelling testimony.   
The Courts of Justice Act is silent on this matter.   Ontario’s Evidence Act  R.S.O. 1990, Ch. E-23, s. 60 and the Canada Evidence Act, R.S.C. 1985 C-5, s. 46 each confer power on courts to grant assistance requested by foreign courts, including the production of documents,  but not to make requests to foreign courts.
            My review of the case law turned up two instances where courts ordered the issuance of letters   of request to compel production of documents, but in neither case did the court address the issue of whether the court has power to request a foreign court’s assistance other than to compel testimony.  In LG&E Natural Canada v. Energistics Group [1997] O.J. No. 1662 Gans J.  issued an order requiring a non-party in Alberta to produce certain documents and attend for examination, and for the issuance of a letter of request “as is necessary to compel [the non-party] to attend and be examined”.  Gans J’s reasons state that “a question was raised at the outset as to the jurisdiction of the court to entertain a motion of this nature, which was, in any event, not objected to by counsel for [the non- party]”.   Thus the court did not delve into whether its powers extend to the production of documents.  
            In Mendlowitz & Assoc. v. Korea Data Systems [2009] O.J. No. 3857, Marrocco J. issued an order for the issuance of a letter of request to the courts of Hong Kong for assistance in the preservation, production and authentication of documents.  The reasons do not indicate that the court’s power to do was challenged at all. 
            Courts in many foreign countries would entertain a request for assistance in compelling inspection and/or production of documents and physical evidence.  However, a Letter of Request from an Ontario court is required.   Courts in the United Kingdom can, under the Evidence (Proceedings in Other Jurisdictions) Act, 1975, assist with the production of documents, inspection and preservation of property, and medical examinations, if there is a Letter of Request from a foreign court.  Courts in countries that have ratified the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters   respond to a fairly wide range of requests, including for the inspection of documents or other property, real or personal, or for other judicial assistance, which might include medical examinations of persons abroad (see Articles 1 and 3), again provided that those courts receive a Letter of Request.   The United States is one jurisdiction where an Ontario litigant can potentially obtain judicial assistance without a Letter of Request. 
It is unfortunate and ironic that while Ontario courts tend to be fairly receptive to requests from foreign courts, Ontario litigants cannot obtain the same assistance themselves, from many countries, due to the state of our Rules.  This problem would persist even if Canada became a signatory to the Hague Convention.

The Committee is considering the matter.  Comments, anyone?

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