Enforcing letters rogatory not an all or nothing approach

July 2, 2015

In a recent Ontario Superior Court decision from Master Sprout entitled Sculley v. Pivot Acquisition Corp., 2015 ONCSC 287 the applicant, Mrs. Carol Lee Sculley, brought an application to enforce letters rogatory issued by the circuit court of the Fifteenth Judicial Circuit in and for Palm Beach County in the state of Florida.

Mrs. Sculley was mired in a family law dispute with her ex-husband, John Sculley. Mrs. Sculley alleged that Mr. Sculley intentionally and fraudulently concealed the existence of a Canadian corporation in the midst of their divorce proceedings in order to avoid an equitable distribution of their assets.  She obtained letters rogatory from the Florida Court to examine a representative of the Canadian corporation in Toronto and for certain documents to be produced.

The individuals who were the object of the letters rogatory resisted their enforcement on the basis that the request for documents was overly broad and that a representative of the Canadian corporation had already examined in the Florida proceeding.

In coming to a decision, Justice Sprout examined the six “guide posts” set out in the Court of Appeal’s decision in Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Limited, 2013 ONCA 264 and determined:

1. The evidence requested was relevant;

2. The evidence requested was necessary for trial;

3. The evidence was not obtainable elsewhere;

4. There was nothing to suggest that the letters rogatory were contrary to public policy;

5. The Florida circuit judge heard arguments with respect to the level of specificity before ordering the letters rogatory and she concluded the documents sought were properly identified; and

6. There was no evidence from the individuals to be disposed that their attendance would be overly burdensome.

Master Sprout confirmed that the guide posts strongly favoured enforcing the letters rogatory.  He noted that in Ontario, a party cannot ordinarily examine more than one corporate representative, however, the Ontario rules of procedure did not create an impediment to enforcing the letters rogatory in and of itself. He therefore granted Mrs. Sculley the relief she was seeking.

Significantly, Master Sproat noted that the request to deliver the entire employment file with respect to the Canadian corporation as set out in the letters rogatory was overly broad.  Master Sprout indicated that these employment files often contain highly personal information and there was no nexus between the entire employment files and the allegations made against the respondent. He refused to order that the employment file be produced.

It is important to note that the enforcement of letters rogatory in Ontario is not a binary, all or nothing approach. Ontario courts have discretion with respect to enforcing the entirety of a letters rogatory or only an aspect of it. Accordingly, counsel should be prepared to convince the court that each aspect of the letters rogatory satisfies the six “guide posts” set out by the Court of Appeal for Ontario in the Lantheus decision.

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