John, let me first refer to you my disclaimer, which notes that I don’t give legal advice here. So if you are looking for legal advice in an actual case, please speak with your lawyer.

From the US perspective, some departures from the US practices that govern depositions are permissible when the deposition occurs in a foreign country pursuant to a letter of request or letter rogatory. Rule 28(b)(4) of the Federal Rules of Civil Procedure provides:

Evidence obtained in response to a letter of request need not be excluded merely because it is not a verbatim transcript, because the testimony was not taken under oath, or because of any similar departure from the requirements for depositions taken within the United States.

But fundamentally, the question of what rules the foreign court will use when acting on a US letter of request will depend on the law of the foreign country, not on US law.

Canada is a federal state comprising 14 jurisdictions: a federal government, ten provincial governments and three territorial governments. Currently in Canada, treaty-making is a power reserved for the executive branch of government, and is derived from Royal Prerogative. It is therefore the federal government that will negotiate international obligations and ratify (or accede to) international instruments on behalf of Canada.

However, due to constitutional division of powers in Canada, it is the subject matter of the international instrument that will determine which level of government will be competent to pass implementing legislation. If, under the Constitution Act, the subject-matter falls under provincial jurisdiction, as is often the case with private international law instruments, it will be up to each province to pass implementing legislation. Under Canadian law, there is a well-established principle that the federal government cannot pass implementing legislation in areas that fall within provincial jurisdiction (A.G. Can. V. A.G. Ont. et al. (Labour Conventions Case), [1937] 1 D.L.R. 673). Unlike other federal states, in Canada there is no residual power (to complement the treaty-making power) enabling the federal government to legislate to give force of domestic law to the treaties it negotiates when they fall under provincial jurisdiction. Only if the subject matter of the treaty is federal can the federal government pass implementing legislation. At times, the subject matter falls into shared jurisdiction, and it may be necessary for implementing legislation to be passed by both the provincial and federal levels of government.

According to on the Hague Conference on Private International Law website:

“The Convention does not include a Federal State Clause. Such a clause would have allowed Canada to extend the application of the Convention only to the provinces and territories that implemented the Convention. Without such a clause, the Convention would have to be implemented in all Canadian provinces and territories, which is difficult to achieve.”

I don’t know what the Canadian federal government’s position is on the Apostille Convention.

It would be far simpler and cost-effective if Canada became a signatory to the Evidence Convention.

Agreed. It’s surprising to me that Canada is not a party to either the Evidence Convention or the Apostille Convention. Any idea why?

In my view, the Ontario judge struggled with the paucity of evidence supporting the applicants’ (defendants’) relevance arguments. While the third amended complaint is lengthy, the relevance inquiry for considering letters of request (letters rogatory) is based upon Ontario standards for ordering pre-discovery production from non-parties (Rule 30.10) or oral discovery of non-parties with leave (Rule 31.10).

In any event, Justice Grace concludes by stating that “application is dismissed without prejudice to the applicants filing a further application with letters of request revised to address the concerns I have, with reluctance, expressed.”