Case information

Evidence — Private International Law — Foreign judgments — Enforcement of letters rogatory — Comity — Compelled production of financial information by non-party — When considering the enforcement of letters of request, should the court proceed on the basis of a principled approach or consider enumerated factors that inherently reflect those principles — Assuming the court should consider certain factors, are application judges required to consider every factor and, if not, what would trigger a requirement to do so — What is the relationship between comity, public policy, sovereignty and justice — Can a Canadian court consider confidentiality public policy concerns without considering competing public policy factors — Zingre v. The Queen, et al., [1981] 2 S.C.R. 392.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The applicants seek enforcement of a letter of request (“LoR”) from the United States District Court, Southern District of New York. The enforcement order compels the respondent, an Ontario company and non-party to a U.S. action, to produce its confidential and proprietary financial and valuation documents to assist the respondents’ expert in the U.S. action to calculate their damages using comparative industry data. One party to the U.S. action is a competitor of the respondent and the other is a potential competitor with whom it had a referral agreement. A generic protective order has been issued in the U.S. action permitting producing parties to designate materials as “confidential”, “attorneys’ eyes only” or “experts’ eyes only”.

The Ontario Superior Court of Justice granted an order enforcing the LoR and ordered the respondent to deliver the requested information and documents and to have a representative appear for examination, subject to the U.S. Court ordering certain restrictions on access to the financial data. The Ontario Court of Appeal allowed the appeal, overturning the lower court’s analysis of the considerations of relevance, public policy and sovereignty.