Superior Court confirms “relevance” and “not otherwise attainable” requirements in enforcing letters rogatory.

February 8, 2016

In Intelsat USA Sales LLC v. Hyde and Majic, Justice Faieta refused to enforce letters rogatory directed against the former in-house counsel of the defendant company, which company was based in Ontario. The basis for Justice Faieta’s decision was that the former in-house counsel’s evidence was not necessary for trial and the evidence to be elicited was otherwise obtainable from other witnesses.

By way of background, Intelsat USA Sales LLC (“Intelsat”) brought an action in the United States District Court for the District of Columbia (“USDC”) against Juch-Tech, Inc. (“Juch-Tech”), an Ontario based company, for $30 million. The action involved unpaid invoices relating to Juch-Tech’s leasing of satellite capacity from Intelsat on two satellites. Juch-Tech alleged in its defence that the contracts should be rescinded due to misrepresentations made by Intelsat.

Intelsat obtained letters rogatory to compel the examination of Juch-Tech’s former in-house counsel, its former CFO and its former COO.  Intelsat then brought an application in Ontario to enforce the letters rogatory against the former in-house counsel and the former CFO but not the former COO.  The former CFO consented to the enforcement of the letters rogatory but the former in-house counsel opposed the application. Justice Faieta confirmed that Intelsat tendered contradictory evidence on the application and that while the former in-house’s counsel’s evidence may be relevant, it was not demonstrated that she was a necessary witness.

Justice Faieta found the applicant failed to tender evidence in support of the bald assertion that the former in-house counsel had knowledge with respect to the alleged misrepresentations. Additionally, Intelsat’s affiant stated there was no other person who could provide evidence on the issue but for the former in-house counsel. This bald assertion was contradicted by earlier affidavits which confirmed the CFO and COO had the most specific and relevant evidence to provide.

As a result, Justice Faieta refused to enforce the letters rogatory against the former in-house counsel and found that the guideposts and the tests set out in the Court of Appeal in Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Limited had not been satisfied.

As a result, when obtaining letters rogatory you should carefully ensure they are not overly broad nor seek too many deponents. In addition, bald assertions without evidentiary foundation are insufficient to enforce letters rogatory.  Careful consideration must therefore be given to the evidence tendered in support of the application as the Court has confirmed letters rogatory will not be “rubber-stamped” and the court will not permit “fishing expeditions” without a proper evidentiary foundation.

Intelsat USA Sales LLC v Hyde and Majic, 2015 ONSC 5680 (CanLII)

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