Obtaining Evidence From Non-Parties June, François Baril* Jahmiah Ferdinand-Hodkin**

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1 Obtaining Evidence From Non-Parties June, 2010 François Baril* Jahmiah Ferdinand-Hodkin** Introduction Our rules are designed to specifically impose on all parties a positive obligation to disclose, well ahead of trial, all relevant information and evidence. Unfortunately, key evidence often rests not with the parties themselves but rather with third parties who have no inclination, let alone obligation, to share or disclose this evidence. This short paper looks at what tools and strategies are available to secure such non-party evidence. Obtaining Non-Party Evidence Prior to Commencing an Action The Ontario Court of Appeal has recently affirmed a litigant s right to pre-action discovery of non-parties. 1 A Norwich Pharmacal order provides litigants with an opportunity to compel the in camera and ex parte pre-action discovery of non-parties. This tool can assist a potential litigant in finding and preserving assets, identifying defendants and assessing whether a cause of action exists. 2 However, the courts do not grant these orders lightly and carefully weigh the benefit to the applicant against the prejudice an innocent non-party would bear. Jurisdiction: The Federal Court of Appeal was the first Canadian court to recognize its jurisdiction to order equitable bills of discovery, as they were then known, on the basis that the court held jurisdiction in both equity and common law. 3 The Ontario, British Columbia and Alberta courts have since recognized their jurisdiction to grant this relief. 4 Other provinces, such as Nova Scotia, Prince Edward Island and New Brunswick have enacted Rules granting their courts the power to order pre-action discovery. Currently, there is no issue as to whether Canadian courts have jurisdiction to grant Norwich Pharmacal orders. 5 *François Baril is a partner at Gowling Lafleur Henderson LLP, Ottawa, practicing predominantly in the areas of civil litigation and administrative law. **Jahmiah Ferdinand-Hodkin is an associate at Gowling Lafleur Henderson LLP, Ottawa, practicing in the areas of commercial litigation and insurance defence. Francois and Jahmiah would like to acknowledge Sophia Zahariadakis, Student-at-Law, and Brieanne Brannagan, student Queens University, for their research and assistance in the preparation of this paper. 1 GEA Group AG v. Ventra Group, 2009 ONCA 619 (Ont. C.A.) [Ventra]. 2 Alberta Treasury Branches v. Leahy, 2000 ALQB 575, aff d (2002), 303 A.R. 63 (Alta C.A.), leave to appeal refused (2002), 303 N.R. 392 (S.C.C.) [Leahy]. 3 Glaxo Wellcome PLC v. Minister of National Revenue (1998), 162 D.L.R. (4 th ) 433 (F.C.A.). 4 Leahy, supra note 2; Kenny v. Loewen (1999), 64 B.C.L.R. (3d) 346 (B.C.S.C.); Straka v. Humber River Regional Hospital (2000), 51 O.R. (3d) 1 (Ont.C.A.). 5 R.W. Block, M.A. Marion and R.J. Gilborn, Sealed Ex Parte Norwich Orders: Safeguarding Against Abuse of the Pre-Action Disclosure Remedy (2003) Annual Review of Civil Litigation 225 at 228.

2 Page 2 Obtaining the Order: A Norwich Pharmacal order is obtained by way of application. Given that the order is often used to obtain evidence in danger of being destroyed, it is generally obtained on an ex parte and in camera basis combined with a request for a sealing order with respect to the proceeding s records. The Test: The Alberta Court of Queen s Bench decision in Leahy 6 established the following factors to determine whether a Norwich Pharmacal order should be granted: (d) Whether the applicant provided sufficient evidence to raise a valid claim; Whether the applicant has shown that the third party was somehow involved in the wrong; Whether the third party is the only practicable source of information; Whether the third party could be indemnified should any harm come of the order, if granted; and (e) Whether the interests of justice favour the disclosure. 7 Since Leahy, various permutations of this test have been applied. Most recently, the Ontario Court of Appeal, in Ventra, held that each of the Leahy factors must be met and, in addition, the applicant must demonstrate why the order is necessary. 8 The court noted that this is an equitable, discretionary and flexible remedy. It is also an intrusive and extraordinary remedy that must be exercised with caution. 9 Further, as this order is often sought ex parte and in camera, the applicant must satisfy the court that the discrete elements of these prayers for relief are also met. All the usual obligations with respect to making full and frank disclosure in ex parte proceedings are, of course, applicable. Using information Obtained Pursuant to a Norwich Pharmacal Order: The deemed undertaking rule establishes that information obtained in pre-trial discovery cannot be used outside the confines of the action in which the information was obtained. 10 However, Ontario courts have found that the deemed undertaking rule does not apply to Norwich Pharmacal orders which are, by their nature, obtained in a proceeding with the sole purpose of discovering information to assist in commencing a distinct proceeding. 11 Nonetheless, as discussed in Leahy, parties should be guided by the underlying purpose of the deemed undertaking rule that the information obtained should not be put to a use that is ulterior, collateral or alien to the purpose for which specific production was made. 12 Costs: The applicant will be required to indemnify the non-party for their costs associated with complying with the order Leahy, supra note 2. 7 Leahy, supra note 2 at para Ventra, supra note 1. 9 Ibid. at para See for example Ontario Rules of Civil Procedure, R R.B. Swan, The Deemed Undertaking : A Fixture of Civil Litigation in Ontario (2008) 27 Advocates Soc. J. 16, para Leahy, supra note 2 at para Ibid. see generally.

3 Page 3 Recent Ontario Case: In August 2009, the Ontario Superior Court granted a Norwich Pharmacal order to York University permitting it to obtain information from Bell Canada and Rogers Communications Inc. identifying anonymous authors of allegedly defamatory s and website postings. 14 This decision applied Ventra and discussed the alternative of seeking an order pursuant to Rule of the Ontario Rules of Civil Procedure. Obtaining Non-Party Evidence in an Existing Action Rule 39.03: Evidence by Examination of a Witness This often overlooked tool provides for the examination, cross-examination and re-examination of a witness at or before a motion or application for the purpose of using the witness evidence at the hearing. 15 With recent changes to the rules on summary judgment, there is likely to be an increase in the use of Rule The party who intends to examine a witness, pursuant to Rule 39, must do so before cross-examination of the other parties affiant, failing which consent or leave of the court will be required. 16 Leave of the Court is granted where the Court is satisfied that the moving party ought to be permitted to respond to any matter raised on the affiant s cross-examination with the evidence obtained under Rule There is some disagreement as to whether this rule applies uniquely to the examination of non-parties or whether parties to the action can also be examined pursuant to Rule In 2004, in Cornerstone, 18 the court explained that Rule did not apply to permit the examination of a party in an action. However, the court could order this examination pursuant to its inherent jurisdiction to control its own process. Conversely, in 2009, the court in Chalhoub 19 relied on the definition of person at Rule 1.03 to hold that Rule applied to parties and non-parties alike. In this decision, the defendant insurer brought a motion seeking to examine the third party, its former employee, pursuant to Rule The defendant proceeded in this fashion because it was not adverse in position with the ex-employee in the main action and, therefore, could not use the ex-employee s discovery transcript in its summary judgment motion. The court granted the defendant s motion for an order permitting it to examine the ex-employee under Rule 39.03, thus allowing the defendant to obtain evidence from the third party to support its position. Before the Hearing : Subject to triggering Rule 39.02(2), 20 compelling the examination of a non-party only requires service of a Notice of Examination. However, where the non-party refuses to appear, a court order requiring the non-party to attend the examination may be obtained. The moving party has an obligation to act with reasonable diligence with respect to exercising its rights pursuant to Rule Where reasonable diligence is not exercised, the court may refuse to grant an adjournment of the pending motion or application to provide time for the non-party witness examination York University v. Bell Canada Enterprises, 2009 CanLII (Ont. S.C.). 15 Ontario Rules of Civil Procedure, R 39.03(1) and (4) [Rules]; Cornerstone Co-operative Homes Inc. v. Spilchuk (2004), 72 O.R. (3d) 103 (S.C.J.). 16 Rules, supra note 15 at R and 39.02(2). 17 Ibid. at R 39.02(2). 18 Cornerstone Co-operative Homes Inc. v. Spilchuk (2004), 72 O.R. (3d) 103 (S.C.J.) at para Chalhoub v. Standard Life Assurance Co. (2008), 61 C.C.L.I. (4th) 281 (S.C.J); additional reasons at (2008), 2008 CarswellOnt 1654, 61 C.C.L.I. (4th) 289 (S.C.J.). 20 Rules, supra note 15 at R 39.02(2) is triggered if the moving party has already cross-examined an affidavit delivered by the responding party.

4 Page 4 At the Hearing: Where the non-party s examination is intended to take place viva voce at the motion or application, leave of the presiding judge or officer is required. 22 The non-parties attendance at the hearing is compellable by way of summons in accordance with Rule If the non-party is a nonresident of Ontario, he or she can be compelled to be examined in accordance with the Interprovincial Summonses Act. 24 Test for Summoning a Non-Party Witness: The test is relevance - the intended examination must be relevant to the pending motion or application and the party to be examined must be in a position to offer relevant evidence. If the evidence sought is relevant, there is a prima facie right to examine the nonparty. 25 There is no requirement that the moving party satisfy the Court that the evidence sought to be adduced will bolster its position. In addition, there is no requirement that the examining party examine opposing parties prior to examining non- parties. 26 Finally, the opposing party has standing to move to set aside the non-party s summons without obtaining instructions from the non-party. 27 Scope of the Examination: The courts have held that the scope of a non-party examination should be more limited than what is permitted in an examination for discovery of a party. The examining party is limited to asking questions that deal with issues relevant to the nature and grounds of the motion. 28 Note that the opposing party will also be able to cross-examine the non-party. Where the scope of the examination/cross-examination is beyond what is relevant to the motion, the party being examined, or any other party present/represented at the examination, may adjourn the motion in accordance with Rule 34.14(1). 29 Use of Evidence Obtained in the Examination: Non-party examinations are not an opportunity to gather evidence to implicate the non-party as a defendant in the action. Prejudice can be presumed where a potential party is summoned as a witness where the underlying intent is to ultimately add them as a party. 30 If the examining party is contemplating adding the non-party witness to the action, the examining party has an obligation to notify the non-party of this intention in order to provide the non-party with an opportunity to retain independent counsel to protect his or her interests at the examination. 31 Similarly, non-party examinations do not present an alternative to retaining an expert and providing the opposing party with an expert report. In Niagara-On-The-Lake, the Court struck an expert witness evidence obtained pursuant to a summons under Rule 39.03(1). 32 Rule & 31.10: Discovery from Non-Parties with Leave Whereas Rule 39 requires the existence of a motion or application, Rules and 31.10, provide for the production of documents from non-parties and the possibility to discover non-parties in the context of an action Rules, supra note 15 at R 39.03(3). 22 Ibid. at R 39.03(4). 23 Ibid. at R 39.03(5). 24 Interprovincial Summonses Act, R.S.O. 1990, c. I Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., [1995] O.J. No (Ont. S.C.). 26 Re Can. Metal Co. and Heap (1975), 7 O.R. (2d) 185 (Ont. C.A.). 27 Bergen v. Bergen, [1972] 3 O.R. 822 (Master). 28 Elfe Juvenile Products v. Bern, [1994] O.J. No (Ont. Div. Ct.). 29 Horvat v. Feldman (1986), 15 C.P.C. (2d) 220 (Ont. H.C.). 30 Leclair v. Ayroud [unreported] 06-CV at para. 33 [Master Beaudoin as he then was] [Leclair]. 31 Ibid. at para. 38 [Master Beaudoin as he then was]. 32 Niagara-On-The-Lake Association of Ratepayers v. Niagara-On-The-Lake (Town) (2003), 63 O.R. (3d) 568 (Ont. S.C.J.).

5 Page 5 These forms of discovery are to be incorporated into parties discovery plans in accordance with Rule The discovery plan must include the names of non-parties the parties intend to examine under Rule 31. The new Rules regarding proportionality also apply to discovery of and production by non-parties. Pursuant to Rule (1), in determining whether to grant leave to examine or to order productions, the Court will consider the time, expense, prejudice, interference with progress of the action, and whether the information is otherwise readily available to the moving party. 35 Finally, please note that the new time limits imposed by Rule (1) apply to include persons examined pursuant to Rule Therefore, examinations of all parties and other persons cannot exceed seven hours, except with consent of the parties or leave of the court. 36 Productions: Test: The test is set out under Rule as the document is relevant to a material issue in the action; and it would be unfair to require the moving party to proceed to trial without discovery of the document. 37 In applying this basic test, the court has established the following factors for consideration: (d) (e) (f) The importance of the documents in the litigation; Whether the production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness to the moving party; Whether discovery of the opposing party with respect to the issues to which the documents are relevant is adequate and, if not, whether responsibility for that inadequacy rests with the non-party; The position of the non-parties with respect to production; The availability of the documents or their informal equivalent from some other source which is accessible to the moving party; and The relationship of the non-party from whom production is sought, to the litigation and the parties to the litigation. Non-parties with an interest in the subject matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true stranger to the litigation. 38 The Ontario Court of Appeal stated that [a]n order under Rule should not be made as a matter of course; such an order should be made only in exceptional cases. 39 This motion must be made on notice to every party and the non-party must be served personally (or by an alternative to personal service) Ontario Ltd. v. Framingham (1991), 2 O.R. (3d) 284 (Ont. Gen. Div.). 34 Rules, supra note 15 at R (1). 35 Ibid. at R (1). 36 Ibid. at R (1). 37 Ibid. at R 30.10(1). 38 Ontario (Attorney General) v. Stavro, 1995 CanLII 3509 (Ont. C.A.) cited with approval in Morse Shoe (Canada) Ltd. v. Zellers Inc., 1997 CanLII 1573, [1997] O.J. No (ON C.A.) [Zellers]. 39 Ibid., at para. 19.

6 Page 6 Financial Institutions: In Zellers, 41 the appellants, Zellers and the Hudson s Bay Company, sought leave to obtain productions from a non-party foreign bank as well as letters of request to give effect to this order extraterritorially. The court granted the appeal, requesting that the parties agree upon the mechanics of production, failing which the foreign bank would be court ordered to produce the documents. The Court of Appeal stated that such an order should only be made in exceptional cases and cited a number of special circumstances applicable to Zellers that rendered it reasonable. These included the facts that the defendant corporation was no longer in business, it had been through Chapter 11 proceedings, its knowledgeable personnel had dispersed and its documents contained many gaps. 42 In addition, the subject of the action was the financial strength of the defendant corporation during a particular time period. As the non-party foreign bank was the defendant s primary financial institution during that period, it was reasonable that it would have relevant information to the action. Of particular interest, the Ontario Court of Appeal noted that between the time of the original motion and the appeal, the documentary request had been narrowed and the relevance of the revised request was easier to establish. 43 Accordingly, be cognisant of the scope of the request you are making. If your request is more pointed, the court will be in a better position to accept that the documents you seek are, in fact, relevant and that you are not embarking on a fishing expedition. Internet Service Providers/Phone Companies: In 2009, in Mendlowitz, 44 the court granted a motion to compel production of bank records held by the Hong Kong and Shanghai Banking Corporation ( HSBC ) and records held by Rogers Communication Inc. ( Rogers ). The background of this case is interesting: in 1993 the individual defendant acknowledged a debt of $8 million to its creditor. He and his wife spent the next 16 years engaged in deliberate attempts to frustrate their creditor s recovery of this money. Private investigators discovered that the individual defendant had transferred approximately $10 million through an account at HSBC and a California ETrade account. Consequently, in 2009, a Hong Kong Court issued a Mareva injunction with respect to the HSBC account and a California court froze the ETrade account. The moving party sought documentary production and cell phone records from Rogers as the ETrade account was accessed on numerous occasions from an IP address hosted by Rogers. The moving party argued that determining the identity of the owner of the IP address that accessed the ETrade account would be relevant as it would assist in determining who beneficially owned the ETrade account. Further, both the HSBC and ETrade accounts offered telephone trading options and therefore the defendant s cell phone records were relevant. Given the defendant s history of failing to comply with orders, the relevance of the information, and the understanding that the information could not reasonably be obtained from another source, this order for production was granted. Documentary production requests from ISP and phone companies often relate to assisting plaintiffs in determining the identity of John Doe and Jane Doe defendants. For instance, the Canadian Recording Industry Association ( CRIA ) commenced an action against John Doe, Jane Doe and all those persons who are infringing copyright in the plaintiff s sound recording and then brought a motion before the Federal Court seeking to obtain the identity of the defendants. 45 The moving parties relied upon Rules 40 Rules, supra note 15 at R 30.10(2). 41 Zellers, supra note Ibid. at para Ibid. at para Mendlowitz & Associates Inc. v. Chiang, 2009 CanLII 48844, [2009] O.J. No (ON S.C.) [Mendlowitz]. 45 BMG Canada Inc. v. Doe, 2005 FCA 193, [2005] 4 R.C.F. 81 (F.C.A.) [BMG].

7 Page and 238 of the Federal Court Rules to obtain these productions [note: Rule 233 is the Federal Court equivalent to Rule and Rule 238 is the Federal Court equivalent to 39.03]. Pursuant to Rule 233 of the Federal Court Rules, the moving party sought production of documents that could identify the potential defendants from the non-party respondents Shaw Communications Inc., Bell Canada, Telus Inc., Rogers Cable Communications Inc., and Videotron Ltee. The Federal Court of Appeal upheld the motion Judge s ruling that these alleged documents were not producible on the grounds that there was no evidence provided that these documents pre-existed. Rather, documents would have to be created by the non-party respondents through an analysis of tapes, recordings and logs. 46 The moving party also sought to examine representatives from the ISPs pursuant to Rule 238. The Federal Court of Appeal upheld the dismissal of this part of the motion on the grounds that the CRIA did not satisfy the requirements of Rule 81 with respect to the moving party s motion materials. 47 This dismissal was granted without prejudice to the moving party s right to commence a further application for disclosure. In particular, Justice Sexton affirmed that this proceeding could be brought pursuant to Rule 238 or in the context of a Norwich Pharmacal order (i.e. equitable bills of discovery or action for discovery). 48 In the Federal Court s reasons regarding compelling production of the identity of senders from ISP companies, it referenced one Ontario decision, Irwin Toy, 49 and one New Brunswick decision, Loblaw, 50 in which similar production requests were made and granted. Medical Records: Raw test data and clinical notes of non-party physicians may also be subject to an order under rule 30.10(1). In Suchan, 51 Master Dash deferred to the decision in Wilkenson-Valiente, 52 which held that as the physician is not a party to the litigation the plaintiff must first make best efforts to obtain the records before any motion is brought directly against the physician as a non-party. 53 Only when the physician refuses or ignores the reasonable requests of the plaintiff, or if the plaintiff refuses to make the request should the court compel production from the physician as a non-party. 54 Social Networking Sites: Facebook, Twitter, MySpace, Flickr - the content contained on these sites often provides a candid view into the personal lives of parties in the form of status updates, photos, videos, notes and other postings. This information has become increasingly relevant in the context of personal injury and insurance defence claims. Over the course of the past few years, the number of cases dealing with compelling parties to produce Facebook-style pages has increased exponentially. 55 However, there have been no reported cases in which parties have sought these productions from the social network site directly (as opposed to from the individual user of the site). Nonetheless, it is reasonable to expect that as the law in this domaine progresses, arguments could be made analogous to 46 Ibid. at para Ibid. at paras Ibid. at para Irwin Toy Ltd. v. Doe (2000), 12 C.P.C. (5 th ) 103 (Ont. S.C.). 50 Loblaw Companies Ltd. v. Aliant Telecom Inc., [2003] N.B.R. (2 nd Supp.) No. 32 (N.B.Q.B.). 51 Suchan v. Casella, 2006 CanLII (ON S.C.) at pp 28 [Suchan]. 52 Wilkenson-Valiente v. Wilkenson, [1994] O.J. No. 148 (O. Gen. Div.). 53 Suchan, supra note 51 at para Ibid. see generally. 55 In reported cases dealt with social networking evidence; in reported cases; and, in 2009 and 2010 combined over 100 reported cases have mentioned social networking evidence; see for example Kourtesis v. Joris, [2007] O.J. No (S.C.J.) and Bagasbas v. Atwal, [2009] B.C.J. No. 758 (S.C.).

8 Page 8 the reasoning applied in Suchan with respect to medical documents - production from the source is compellable when the party itself refuses production. Although not dealing with non-party production, in Leduc, 56 the Ontario Superior Court overturned the Master s decision to dismiss a motion to compel production of the plaintiff s Facebook documents. The plaintiff was involved in a motor vehicle accident and his Facebook profile s privacy settings were stringent. Justice Brown stated that content on social networking sites properly constitutes data and information that is producible as documents under the Rules of Civil Procedure. 57 He continued that if a party to an action posts on Facebook any content that relates to any matter in issue in an action, that party must indentify that content in the affidavit of documents. 58 The court further held that there is no distinction between private or public social networking profiles - a party of either profile type is obliged to identify any postings that relates to any matter in issue in an action 59. Examination Test: The test for granting leave to examine a non-party where there is reason to believe that the nonparty has information relevant to a material issue in the action (with the exception of experts retained by or on behalf of a party in preparation or contemplation for litigation) is set out under Rule 31.10(2) as : the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery or from the person the moving party seeks to examine; it would be unfair to require the moving party to proceed to trial without examination of the person; and the examination will not unduly delay the commencement of trial; entail unreasonable expense; or, result in unfairness to the person the moving party seeks to examine. 60 In order to satisfy the first element of the test set out in Rule 31.10(2), the court must be satisfied that there was an actual or constructive refusal by the opposing party to obtain the information from the nonparty. 61 Further, the opposing party must be granted a reasonable opportunity to obtain the information from the non-party when it has undertaken to do so before a motion under Rule will be granted. 62 The court in Axa confirmed that all of the elements of the test set out in Rule 31.10(2) must be met before a non-party can be ordered to attend an examination for discovery. 63 Similar to Rule 30.10, this remedy is rarely granted and should only be given in exceptional circumstances. 64 Costs: The moving party cannot recover its costs of examination without an express order from the court. 65 In addition, the moving party must serve every party who attended the examination, or who was represented at the examination, with a copy of the examination transcripts Leduc v. Roman, 2009 CanLII 6838 (ON S.C.) [Leduc]. 57 Ibid. at para Ibid. 59 Ibid. at para Rules, supra note 15 at R 31.10(2). 61 Famous Players Development Corp. v. Central Capital Corp. (1991), 6 O.R. (3d) 765 (Ont. Div.Ct.). 62 D Amore Construction (Windsor) Ltd. v. Ontario (No. 2) (1986), 12 C.P.C. (2d) 178 (Ont. H.C.). 63 Kus v. Axa, [2007] O.J. No (Ont. S.C.) at para. 24 [Kus]. 64 Ibid. at para. 27.

9 Page 9 Use of Evidence Obtained at Trial: Evidence obtained from a non-party under Rule cannot be read into trial under Rule 31.11(1). 67 Modified O Connor Sometimes, the information sought from third parties is very sensitive, personal or otherwise confidential. When faced with such issues, the courts have used a Modified O Connor approach. The O Connor test emanates from the Supreme Court of Canada decision regarding an accused charged with a number of sexual offences. The accused obtained a pre-trial order for the production of the complainant s entire medical, counseling and school records. The Crown sought to limit the disclosure to records relevant to the actions of the accused. The material question before the Supreme Court was what is the appropriate procedure to be followed when an accused seeks production of documents such as medical or therapeutic records that are in the hands of third parties. 68 At the first stage, the moving party must establish that the information is likely relevant. Once this threshold is met, the moving party may address the second stage, which allows for the determination of whether, and to what extent, disclosure should be provided. To that end, the court developed the following non exhaustive list of factors: (d) (e) the extent to which the record is necessary for the accused to make full answer and defence; the probative value of the record; the nature and extent of the reasonable expectation of privacy vested in the record; whether production of the record would be premised upon any discriminatory belief or bias; and the potential prejudice to the complainant's dignity, privacy or security of the person that would be occasioned by production of the record. 69 Although developed in the criminal context, these two stages and the list of factors have been applied in the civil context to determine whether sensitive documents, which are otherwise private or confidential, should be producible by non-parties. For instance, in a custody dispute, the moving father sought disclosure of the Children s Aid Society ( CAS ) files maintained with respect to the responding mother. 70 The CAS did not oppose the motion, however, it provided the files to the court and requested that the court apply the O Connor factors in determining whether to provide the CAS files to the father. The mother opposed these productions. Regarding the first stage, the court held that the father satisfied the test of likely relevant by establishing that the concerns he raised with respect to continued custody of the mother were likely the same 65 Rules, supra note 15 at R 31.10(4). 66 Ibid. at R 31.10(3). 67 Ibid. at R 31.10(5). 68 R. v. O'Connor, [1995] 4 S.C.R. 411 (S.C.C.). 69 Ibid. at para G.(L). v. B.(P.)I, [1996] O.J. No (Ont. P.C.).

10 Page 10 concerns raised by the CAS in its records. Accordingly, these records were relevant to the determination of whether his motion for varied custody should be granted. 71 Following a review of the second stage factors, the court concluded that certain documents in the CAS file should be provided to the father. The court highlighted that the primary issue to be determine at the motion to vary custody was whether there had been a material change in circumstances that was likely to affect the best interests of the child. The requested documents satisfied the balance contemplated by the O Connor factors and were directly relevant to the issue in the motion. Enforcing an Order for Production in Another Jurisdiction It is one thing to obtain an order for production; it is another to enforce it, particularly against a foreign person/entity. As mentioned above with respect to Zellers and Mendlowitz, where the non-party is based outside of the court s jurisdiction, the prayer for relief must include an order seeking a letter of request. In seeking to enforce the order upon the foreign non-party, it is advisable to obtain counsel in the foreign jurisdiction to enforce the letter of request in their jurisdiction. While it is beyond the scope of this article to describe what criteria foreign courts may consider in ruling on requests from Ontario/Canada, the position of Ontario courts on foreign requests is informative. For instance, if an order is obtained in a foreign jurisdiction and the parties need to enforce in Ontario, the procedure is governed by section 60 of the (Ontario) Evidence Act 72 and section 46 of the Canada Evidence Act. 73 The Ontario Court of Appeal has summarized the test that must be met in Ontario, before Ontario courts will issue orders pursuant to a foreign request/letters rogatory: It must appear that the foreign court is desirous of obtaining the evidence; The witness whose evidence is sought must be within the jurisdiction of the court which is asked to make the order; The evidence sought must be in relation to a civil, commercial or criminal matter pending before the foreign court; (d) The foreign court must be a court of competent jurisdiction. 74 In addition, the Ontario courts have established that the applicant s evidence, including the letters of request/letters rogatory itself, must contain the following in order for the court to give effect to the request: (d) (e) that the evidence sought is relevant; that the evidence sought is necessary for trial and will be adduced at trial, if admissible; that the evidence is not otherwise obtainable; that the order sought is not contrary to public policy; that the documents sought are identified with reasonable specificity; and 71 Ibid, at para Evidence Act, R.S.O. 1990, c.e.23, as amended, s Canada Evidence Act, R.S.C., c.c-5, as amended, s. 46(1). 74 France(Republic) v. De Havilland Aircraft of Canada Ltd. (1991), 3 O.R. (3d) 705 (Ont. C.A.) at p. 2.

11 Page 11 (f) that the order sought is not unduly burdensome, bearing in mind what the witnesses will be required to do, and produce, were the action to be tried. 75 It is the applicant s burden to establish that each of these criteria have been met. 76 Presumably and subject to the advice of foreign counsel, any application for a foreign production order should contain, or at least address, those elements. Conclusion Don t leave inferences to be drawn when evidence can be presented! 77 Getting evidence for third parties can be difficult and time consuming, but it is often well worth the effort. Almost invariably, if you can demonstrate to the Court that the evidence is relevant and necessary, you can, with a little persistence, overcome objections, obfuscations and obstacles. 75 Friction Division Products Inc. v. E.I. DuPont de Nemours & Co. [1986] O.J. No (Ont. H.C.) at para. 24; Presbyterian Church of Sudan v. Rybiak (2006), 275 D.L.R. (4th) 512 (Ont. C.A.) at para Scienton Technologies Inc. v. Canadian Imperial Bank of Commerce, [2009] O.J. No (Ont. S.C.) at para Richard Wright

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