Letters rogatory will not be enforced if evidence was otherwise obtainable and or wasn't necessity

j2 Global Communications, Inc. v. M.A., 2010 ONCA 594, released on line today, makes it clear that letters rogatory will not be enforced in a pro forma fashion -- there must be proof, inter alia, that there is a need to enforce. The Court held:



[1]               The appellant j2 Global Communications Inc. appeals the order of Regional Senior Justice Hackland dated February 2, 2010 refusing to enforce a request pursuant to letters rogatory to require that the respondents be examined under oath in Ontario to provide evidence for a civil action proceeding in California.

[2]               The appellant contends that the application judge misapprehended the evidence before him, failed to appreciate relevant evidence, and relied upon irrelevant evidence.

[3]               We disagree. The application judge engaged in a comprehensive and careful analysis and application of the six factors relevant to the determination of whether letters rogatory from a foreign jurisdiction should be enforced in Ontario, as set out by this court in Presbyterian Church of Sudan v. Rybiak (2006), 275 D.L.R. (4th) 512. He concluded that the appellant had not established at least two of those factors – whether the evidence was otherwise obtainable and necessity.

[4]               The theme of the application judge's reasons is, in our view, a fair and balanced one and is captured in this passage, with which we agree:

To reiterate, there is no demonstrated need to conduct depositions on the issues raised in j2's Claim in the American litigation from individuals beyond the Protus corporate representatives examined, or to be examined, keeping in mind that these senior executives can and should, if necessary, inform themselves from those of the respondents who continue to be employed by Protus.