Letters rogatory and letters of request
Last revised May 26, 2020

Definition

According to the 2005 CLE paper, "Multi-Jurisdiction Litigation: Some Hot Topics", "letters of request" or "letters rogatory" are used in gathering evidence for foreign proceedings:

"A court will issue to a foreign court a request that the foreign court take evidence from a person within the foreign jurisdiction and return that testimony for use in the first court's proceedings."


The Canadian Abridgment Words & Phrases defines "letters rogatory" or "letters of request" as:
 

British Columbia
Letters rogatory are sometimes known as letters of request. They constitute a request from one Judge to another asking for the examination of a witness by commission in the jurisdiction which is foreign to the requesting Court.

Supreme Court of Canada
Letters rogatory are used to obtain evidence in the form of testimony, statements or documents for use in proceedings before foreign courts: Canada Evidence Act, [R.S.C. 1985, c. C-5], s. 46. This form of judicial assistance, like the recognition and enforcement of foreign orders and forum non conveniens, rests on the principle of comity.


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Letters rogatory or letters of request can be used to gather evidence in B.C. for proceedings outside of B.C. or to obtain foreign evidence for B.C. proceedings.
 

  • Gathering evidence in B.C. for proceedings outside of B.C.
    • In B.C., requests for the enforcement of letters rogatory issued by a foreign court are governed by the provisions of s. 53 of the Evidence Act, R.S.B.C. 1996, c. 124, Power to order examination of witness under commission issued by foreign court
       
  • Obtaining foreign evidence for B.C. proceedings
    • In B.C., Rule 7-8 (8) to (12) of the BC Supreme Court Civil Rules on Depositions, governs obtaining letters of request.   It is a formal request to the appropriate judicial authorities in another country to order a resident of that jurisdiction to provide oral and documentary evidence for a BC proceeding
    • According to the 2005 CLE paper, "Multi-Jurisdiction Litigation: Some Hot Topics":

"Historically, BC courts would enforce letters rogatory if the information requested was for use at trial, whereas requests for documents or witness testimony for purely discovery purposes would likely not be enforced. However, BC courts now take a more flexible approach to the enforcement of letters rogatory, with the primary consideration being the impact the proposed examination will have on the witness."

  • The 2006 CLE paper, "Obtaining Evidence in Foreign Jurisdictions and Dealing With Foreign Letters of  Request in B.C." from the conference on Conflicts Issues (available in most courthouse libraries) contains samples of forms.

Letters Rogatory as per Hague Convention

According to a 2008 CLE paper, "Obtaining Foreign Clinical Records":

"The Hague Convention on the Taking of Evidence in Civil or Commercial Matters allows for contracting nations to obtain evidence from one another via letters of request. Participating countries can still intervene to facilitate this voluntary handing over of evidence...While Canada is not a signatory to this international treaty, the Hague Convention on the Taking of Evidence in Civil or Commercial Matters can nevertheless provide guidance to counsel seeking to obtain foreign clinical records. This international treaty at the very least provides a foundation for international comity between contracting nations, but also provides precedent and guidance for other nations. For local counsel looking to initiate an application comparable to that of letters rogatory under the Hague Convention on the Taking of Evidence in Civil or Commercial Matters, they must look to the Rules of Court regarding letters of request."

 

References

 

 

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