If you’re involved in an Ontario lawsuit and you have evidence located outside of Ontario or Canada, you may wonder whether you will be allowed to use that evidence before the local court.
Perhaps an important witness is located outside the province or the country, relevant business records are being held by a foreign company, or perhaps you yourself are living outside of the province.
It is important to address the location of evidence early on in the litigation, and consult the appropriate rules.
What types of evidence may exist outside of Canada?
Cross-border evidence exists in many forms, including (without limitation):
- Live testimony from witnesses in foreign jurisdictions;
- Corporation records and contracts held overseas by foreign corporations or government agencies;
- Banking, accounting and financial records from foreign banking and financial institutions; and
- Photographs and videos stored physically and digitally in foreign locations
The process for obtaining this evidence and subsequently bringing it before an Ontario court will depend on its nature, who possesses or controls it, and the law of the country where the evidence or witness is located.
Can a witness who lives outside Canada testify in an Ontario lawsuit?
Yes, potentially.
Ontario’s Rules of Civil Procedure establish the processes for conducting examinations of witnesses outside the province. Per Rule 34.07, the court may determine whether examination of a witness is to take place in or outside Ontario. If the court decides that the examination will be conducted outside of Ontario, the court may additionally provide for the issuance of a commission and a letter of request directed to judicial authorities in the jurisdiction where the person is located asking the foreign authorities to use their own process to compel the person to attend and be examined before the Ontario court.
Where a witness is unwilling to participate voluntarily, this step is especially important.
In certain cases, international judicial assistance may be required.
What is a letter of request?
A Letter of Request (referred to as a “Letter Rogatory” in other jurisdictions such as the U.S.) is a formal request from a court in one jurisdiction asking a court or judicial authority in another jurisdiction to assist with obtaining evidence.
Such a letter may be directed to the judicial authorities in the jurisdiction where an overseas witness is located, requesting the process necessary to compel the witness to attend and be examined.
Canadian courts faced with such requests will generally grant them, provided that it is not contrary to public policy or prejudicial to the sovereignty or the rights of the proposed witness.
Other jurisdictions will carry out such requests depending on their own local procedures and laws.
Can an overseas witness be examined before trial?
Yes.
Rule 36 of Ontario’s Rules of Civil Procedure permits a party, with leave of the court or the consent of the parties, to examine a person on oath or affirmation before trial for the purpose of having that person’s testimony available to be tendered as evidence at trial. The rule directs the court to consider factors including the witness’s convenience, the possibility that the witness will be unavailable at trial, whether the witness will be outside the court’s jurisdiction, the expense of bringing the witness to trial, and whether the witness ought to give evidence in person.
Rule 36.03 provides for the issuance of a commission and letter of request for taking the witness’s testimony outside of Ontario.
Rule 36.04 also provides that, in some cases, a party may use the transcript and recording of an examination of a non-party witness conducted under Rule 36 at trial.
What if the witness is willing to cooperate?
While this may simplify the process considerably, the fact that a witness is willing to cooperate does not necessarily resolve every issue associated with their location outside of the province. Questions surrounding where and how the examination will take place, who can administer the oath, and how opposing counsel will cross-examine the witness, for example, will still need to be addressed. A foreign witness’s willingness to participate does not, by itself, resolve these procedural issues.
What if the evidence is a document?
The same basic cross-border problems can arise with documents.
An Ontario lawsuit may depend on, for example:
- banking records maintained in another country;
- corporate records belonging to a foreign company;
- correspondence between people located in different countries;
- records held by a foreign professional or service provider; or
- other electronically stored information located on systems outside of Canada.
The first question is who has possession or control of the relevant documents.
If the documents are controlled by another party to the litigation, Ontario’s ordinary discovery and production rules may provide mechanisms for obtaining them.
However, the situation becomes considerably more complicated where the documents are held by a third party located outside Canada. This may subject you to the laws of the foreign jurisdiction at play.
Courts in different jurisdictions will generally assist each other (within limits) in the administration of justice, per the broader international law principle of comity.
Nonetheless, obtaining documents from a foreign third party may require a Letter of Request or an application to a court in that jurisdiction, with production subject to local rules concerning privacy, confidentiality, privilege and disclosure.
What about electronic evidence located overseas?
Cross-border evidence is increasingly electronic. A dispute may involve:
- emails;
- WhatsApp or other messaging records;
- cloud-stored documents;
- accounting databases;
- social-media records;
- electronic contracts;
- photographs and videos; or
- other electronically stored information.
In these cases, the relevant information may be stored on servers in another country and controlled by foreign companies or governments. This triggers questions surrounding privacy and the authority of a foreign entity to disclose information.
The appropriate approach to obtaining and using such evidence will depend on:
- whether the foreign country has a treaty arrangement with Canada;
- the foreign country’s domestic law;
- whether the evidence holder is willing to cooperate;
- whether the witness or document holder is a party to the Ontario proceeding;
- whether compulsory process is required;
- whether the foreign jurisdiction permits the requested form of evidence gathering;
- whether privacy, bank-secrecy, confidentiality, or other laws restrict disclosure; and
- whether the evidence must be translated or authenticated.
An Ontario court order is therefore not necessarily the end of the analysis. If obtaining the evidence requires action in another country, the law of that country will likely need to be weighed into the analysis and the litigation strategy. For this reason, cross-border evidence should be identified early on.
Can an Ontario court order someone overseas to produce evidence?
Not necessarily.
An Ontario court has jurisdiction over proceedings before it, but an Ontario order does not automatically give the Ontario court unlimited coercive power in another country.
Where evidence is located outside Canada, the procedure for obtaining it needs to account for both Ontario law and the foreign legal regime.
What about video testimony from another country?
Whether a witness can give evidence by video from a particular country can depend on the circumstances and the law of that jurisdiction. The court may also need to determine the appropriate procedure for administering the oath or affirmation, recording the evidence, ensuring that all parties can participate, and dealing with documents or exhibits during the examination.
What if the evidence is in a foreign language?
Foreign-language evidence may require translation before it can effectively be used in an Ontario proceeding.
The appropriate approach will depend on the nature of the document or testimony and the circumstances in which it is being introduced. Parties should also consider whether the original document should be preserved, whether a certified translation is appropriate, and whether there are additional authentication requirements.
What if important evidence is located outside Canada?
Cross-border evidence requires careful planning and strategy. While Ontario law does provide mechanisms for handling it, Ontario powers and procedures may conflict with those in the relevant foreign jurisdiction(s). Foreign evidence should therefore be identified early on in litigation before an Ontario court.
If you are involved in an Ontario lawsuit and key witnesses, documents, or electronic evidence are located outside Canada, an Ontario lawyer with experience in cross-border litigation can help assess the available procedures and determine whether assistance from counsel in the foreign jurisdiction may also be required.
Note: This article provides general information about Ontario law and cross-border evidence. It is not legal advice. The procedure for obtaining evidence outside Canada can vary significantly depending on the country involved, the nature of the evidence, and the circumstances of the proceeding.
