In the United States, letters rogatory or letters of request in seeking a foreign court’s assistance are codified in 28 U.S.C. § 1782 and 28 U.S.C. § 1696. These sections provide the legal authority and procedures in response to a foreign court’s request for assistance in civil and criminal discoveries. However, in Canada (outside of Quebec), the law on letters rogatory is defined by the common law.

For international colleagues — whether American attorneys accustomed to the statutory avenues of the US system, or British and French lawyers navigating the procedural nuances of the Commonwealth and civil codes—the Canadian landscape presents a distinct jurisprudential architecture. While the United States has adopted a modern, codified approach that streamlines the provision of evidence for foreign tribunals, Canada relies on the rich and evolving tapestry of federal and provincial evidence statutes interpreted through the doctrine of comity.

This distinction is not merely academic; it dictates the strategy a foreign litigant must employ to successfully secure evidence in Canada. A request that might be routine in a U.S. Federal Court may face scrutiny in a Canadian Superior Court if it fails to align with the specific substantive and procedural safeguards established by Canadian jurisprudence.

This article elucidates the current state of the law regarding letters rogatory in Canada, anchored by the Supreme Court of Canada decision in Pro Swing Inc. v. Elta Golf Inc. and the instructive cautionary tale of the British Columbia Court of Appeal’s ruling in Liu v. Zhi.

The Principle of Comity: The Gateway to Judicial Assistance

The enforcement of letters rogatory in Canada is fundamentally an exercise in international comity—the deference and respect one sovereign nation affords the judicial acts of another. It is the recognition that in an increasingly globalized commercial environment, rigid adherence to territorial borders must occasionally yield to the necessities of justice.

However, comity is not an absolute obligation. It is a discretionary power exercised by Canadian courts, serving as a gatekeeper to ensure that foreign requests do not infringe upon Canadian sovereignty, public policy, or the fundamental fairness owed to individuals within its jurisdiction.

As the Supreme Court of Canada noted in Pro Swing, the modern realities of international commerce and the mobility of assets require a reappraisal of traditional common law rules. Yet, this modernization does not equate to an automatic endorsement of foreign procedures. The Canadian court retains its sovereignty, ensuring that its judicial machinery is utilized only when specific, rigorous criteria are met.

The Pro Swing Evolution: Expanding the Horizons of Enforcement

To appreciate the modern Canadian approach to letters rogatory, one must first examine the jurisprudential shift signalled by Pro Swing Inc. v. Elta Golf Inc. While the primary issue in Pro Swing concerned the enforcement of a foreign non-monetary judgment (specifically, a U.S. consent decree and contempt order), the Court’s reasoning profoundly influenced the philosophy of judicial assistance.

The Shift from Monetary to Equitable Relief

Historically, the common law rule limited the enforcement of foreign judgments to those for a fixed sum of money. In Pro Swing, the Supreme Court recognized that this traditional rule was an “outmoded conception” in an era of global commerce. The Court signalled a willingness to enforce foreign non-monetary judgments, such as injunctions, provided they met the requirements of finality and clarity.   

While the Court ultimately declined to enforce the specific contempt order in question—due to ambiguities regarding its extraterritorial scope and its quasi-criminal nature—the decision underscored the importance of selecting the appropriate mechanism for judicial assistance.

Letters Rogatory as the Preferred Alternative

Crucially for foreign counsel, the Supreme Court in Pro Swing highlighted that the appellant might have chosen the wrong procedural vehicle. The Court observed that instead of seeking to enforce a complex and potentially penal foreign contempt order, the litigant’s “letters rogatory should have been considered”.  

The Court affirmed that letters rogatory are the established method to “obtain evidence in the form of testimony, statements or documents for use in proceedings before foreign courts”. By identifying letters rogatory as a “less burdensome” and more appropriate avenue for assistance in that specific context, the Supreme Court reaffirmed the vitality of this mechanism as a primary tool for cross-border litigation support.   

The Test for Enforcement: Moving Beyond Form

While the United States operates under the statutory framework of § 1782, Canadian courts apply a multi-factor test derived from the common law to determine whether to give effect to a letter of request. This test ensures that the request is not merely a procedural formality but a substantive necessity for the foreign proceeding.

As synthesized in the jurisprudence, including the Liu v. Zhi decision, the factors a Canadian court will consider include:

1. Relevance: Is the evidence sought relevant to the issues in the foreign litigation?
2. Necessity: Is the evidence necessary for the trial, rather than merely for discovery?
3. Availability: Is the evidence not otherwise obtainable from sources within the foreign jurisdiction?
4. Public Policy: Is the order contrary to Canadian public policy?
5. Specificity: Are the documents or topics of examination identified with reasonable specificity?
6. Undue Burden: Is the order unduly burdensome, considering what a witness would be required to do in a local action?

Among these factors, the definition and application of “relevance” often present the most significant divergence between U.S. and Canadian approaches, a distinction that proved fatal in Liu v. Zhi.

Liu v. Zhi: The Primacy of Relevance

The 2019 decision of the British Columbia Court of Appeal in Liu v. Zhi serves as an essential case study for foreign counsel. It illustrates that a letter of request, even when validly issued by a foreign court, will not be enforced if it fails to demonstrate a clear nexus between the evidence sought and the pleaded issues.

The Disconnect Between Pleading and Discovery

In Liu v. Zhi, a California Superior Court issued letters of request seeking the examination of non-parties residing in British Columbia. The underlying California action involved allegations of a sophisticated fraud, but the specific claim relevant to the request was a debt claim: an allegation that the plaintiff had loaned $6 million USD to the defendant for an immigration investment project, which she failed to repay.

The letters of request, however, sought to examine witnesses regarding the defendant’s alleged immigration fraud—specifically, whether she had forged employment records or made false statements to U.S. immigration authorities.   

The British Columbia Court of Appeal refused to enforce the request. The Court found a fundamental disconnect: the fact that the defendant may have committed immigration fraud was irrelevant to the plaintiff’s claim that she owed a debt. Proving that she lied to immigration authorities would not advance the claim that she failed to repay a loan.   

The Prohibition Against “Fishing Expeditions”

The Court in Liu v. Zhi invoked the prohibition against “fishing expeditions”—a principle with significant weight in Canadian civil procedure. In Canada, the scope of discovery is narrower than the “train of inquiry” standard often applied in U.S. jurisdictions. Evidence must be relevant to matters actually in issue, not merely matters that could be in issue. 

The Court emphasized that without a demonstrated link to the pleadings, requiring a non-party to submit to examination constitutes an unwarranted intrusion. The foreign litigant bears the burden of proving this relevance; it is not sufficient to rely on the foreign court’s issuance of the letter as proof of relevance, particularly where the foreign court may not have scrutinized the underlying pleadings in depth.   

Navigating the Public Policy Exception

Another critical dimension discussed in Pro Swing is the “public policy” defence. Canadian courts will not enforce foreign orders that violate fundamental principles of Canadian justice or that are penal in nature.

The Distinction Between Civil and Criminal Contempt

In Pro Swing, one of the barriers to enforcement was the nature of the U.S. contempt order. The Supreme Court noted that while the United States often distinguishes between civil and criminal contempt, Canadian law views contempt orders as having a “quasi-criminal” character because they involve the “public law” element of defying the court’s authority.

Because the U.S. contempt order in Pro Swing carried potential penal consequences (imprisonment or fines intended to punish rather than purely compensate), the Court held it could not be enforced in Canada.   

For counsel drafting letters rogatory, this distinction is vital. A request for evidence must be strictly civil in nature. If the evidence is sought to support a foreign proceeding that is penal—or if the order enforcing the request would expose a Canadian resident to penal consequences incompatible with Canadian constitutional protections—the court will decline assistance.

Strategic Considerations for Foreign Lawyers

To navigate the Canadian common law framework effectively, foreign counsel should consider the following strategic imperatives when drafting and presenting letters rogatory.

1. Draft for the Canadian Judiciary

While the letter of request is issued by the foreign court, its audience is the Canadian judge. Avoid relying solely on the broad discovery rules of the home jurisdiction. Instead, draft the request to satisfy the stricter Canadian requirements of specificity and materiality. Avoid “any and all documents” language, which signals a lack of specificity.

We oftentimes start our engagement at this stage to assist foreign counsel with the drafting of their requests.   

2. Establish a Direct Evidentiary Nexus

As Liu v. Zhi demonstrates, generalized allegations of fraud or misconduct are insufficient to justify the examination of third parties. The affidavit in support of the application must explicitly link the requested evidence to a specific, pleaded material fact. If the evidence relates to character or credibility rather than a substantive issue, it is unlikely to meet the relevance threshold.   

3. Respect the Sovereignty of the Process

Acknowledge that the enforcement of the letter is a discretionary act of the Canadian court, not a matter of right. The request should be framed as an appeal to judicial comity, recognizing that the Canadian court has the authority to narrow or refuse the request if it imposes an undue burden on the witness.   

4. Address Public Policy Proactively

If the underlying litigation involves elements that might be construed as penal (such as punitive damages, contempt proceedings, or regulatory fines), explicitly distinguish the civil, compensatory nature of the evidence sought. Ensure that the request does not infringe upon Canadian privacy laws or constitutional protections against self-incrimination.   

The divergence between the U.S. statutory approach and the Canadian common law approach to letters rogatory reflects a difference in legal culture and procedural philosophy. While the U.S. system prioritizes broad access to information to facilitate truth-finding, the Canadian system balances this goal against the protection of non-parties and the efficient use of judicial resources.

While Quebec is a civil law jurisdiction, the procedures to obtain evidence via letters rogatory are defined in Articles 504-506 of the Code de procédure civile; the substantive law from the Supreme Court of Canada in Pro Swing is applicable.

Contact Roland Luo for Exceptional Commercial Law & International Law Services in Vancouver

By understanding the principles articulated in Pro Swing and the procedural boundaries clarified in Liu v. Zhi, foreign counsel can draft requests that respect these Canadian sensibilities. When approached with precision and a clear understanding of comity, the Canadian courts remain a willing and effective partner in the administration of international justice.

For the past two decades, Roland Luo has built significant experience in private international law and conflict of laws litigation. Our firm practices in cross-border issues and is trained in both Quebec civil law and the common law. We conduct trials in French and English. Should you need assistance in obtaining evidence in British Columbia or elsewhere in Canada, contact Roland Luo. 

Located in downtown Vancouver, Roland Luo proudly represents clients throughout British Columbia, as well as clients across Canada and the United States. To schedule a confidential discussion, contact us online (most efficient) or by phone at 604-800-4628.