In this fascinating case, Justice Dunphy of the Ontario Superior Court of Justice dismisses an application to enforce letters of request (letters rogatory) pursuant to the Ontario Evidence Act against The Windsor-Detroit Bridge Authority.
A prerequisite to a Canadian court exercising its discretion to enforce letters of request is that the:
- Foreign court is desirous of obtaining the evidence;
- Witness whose evidence is sought is within the jurisdiction of this court;
- Evidence sought is in relation to a civil, commercial or criminal matter pending before the foreign court; and
- Foreign court is a court of competent jurisdiction.
Once the four factors above are established, a Canadian court considers the degree to which the evidence establishes that the:
- Evidence sought is relevant;
- Evidence sought is necessary for trial and will be adduced at trial if admissible;
- Evidence is not otherwise obtainable;
- Order sought is not contrary to public policy;
- Documents sought are identified with reasonable specificity; and
- Order sought is not unduly burdensome.
In this case, the applicants are all entities controlled by the owner of a privately-owned bridge that connects Windsor Ontario to Detroit Michigan. The applicants are defendants in proceedings commenced in Michigan by the Michigan Department of Transportation for the purpose of expropriating property for the construction of a new bridge, named the Gordie Howe International Bridge, which the defendants have opposed in Michigan.
To support the challenge of the expropriation, the defendants in the Michigan proceedings sought various evidence, including a substantial amount of documentary evidence from the Michigan Department of Transportation and a letter of request from the Michigan court for evidence from The Windsor-Detroit Bridge Authority, which is a wholly-owned Crown Corporation that reports to Parliament.
The motion to issue a letter of request was brought o July 11, 2017. While it was initially opposed by the Michigan Department of Transportation, negotiations between the parties led to the motion proceeding on consent. During the negotiation process, The Windsor-Detroit Bridge Authority was consulted, which led to changes to the draft letter of request prior to it being issued.
On the Application in Ontario, the Court rejected the Applicants’ submission that the cooperation of The Windsor-Detroit Bridge Authority was tantamount to consent. The court found that the correspondence clearly established that no consent was made despite consultations. On the Application, the only issue that remained to be decided was whether the following documents ought to be produced by The Windsor-Detroit Bridge Authority:
For the period between January 1, 2011, and the date of these Requests, please produce all spreadsheets, memoranda, summaries and internal communications with the WDBA concerning the funding necessary for the construction and operation of the GHIB.
The Applicants argued that the information sought was relevant because one of the grounds of their objection to the expropriation was that funding for the bridge “depends on continuing appropriation from the Canadian Parliament.” The court found that the request for documents was not relevant because there was no dispute that:
- Parliament has not appropriated all of the funds necessary for the GHIB;
- Parliament has expended in excess of $1 billion in connection with the project to date; and
- At the time of the expropriation decision that is the subject-matter of the Michigan Action (January 2017), the design and construction RFP had not been issued and thus final bids not yet received much less selected.
The evidence established that “the foreign nature of the funding is not in dispute, nor is there a dispute that funding depends on Parliament’s continued support.” At the heart of the court’s decision was that the information sought were all “available to anyone with the patience, stamina, and vision necessary to examine them.” Given the fact that the nature of the funding nor its dependence on Parliament were in dispute and the fact that the information was in any event publicly available, the Court dismissed the Application.
Ruzbeh Hosseini is an associate who practices in the business litigation and cross-border litigation groups. Ruzbeh is regularly involved in the development of litigation strategy and he has appeared in the Ontario Superior Court of Justice and Ontario Court of Appeal on behalf of clients.
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