5.2: When something is relevant and material
6.24: Assistance to judicial authorities outside Alberta

Case Summary

The Applicant sought to enforce a Letter of Request (the “LOR”) from the United States District Court for the District of Kansas, which would require the Respondent to produce a corporate representative to answer questions upon Oral Examination concerning a number of topics arising out of multi-state litigation in the United States.

Rule 6.24 permits the Court to authorize a LOR, or to make any Order that the Court considers appropriate. Wittman C.J. referred to a number of cases to interpret Rule 6.24. These included but were not limited to: United States District Court, Middle District of Florida v Royal American Shows Inc, [1982] 1 SCR 414; CSI Wireless LLC v Harris Canada Inc, 2003 ABQB 610, R v Zingre, [1981] 2 SCR 392, and Presbyterian Church of Sudan v Talisman Energy Inc, 2005 ABQB 920.

Wittmann C.J. referred to the following six factors that Canadian Courts adhere to in responding to a LOR:

1.         Whether the evidence sought to be obtained is relevant;

2.         Whether the evidence sought to be obtained is necessary for a Trial or for Discovery;

3.         Whether the evidence is otherwise available through some other source;

4.         Whether any documents requested have been identified with reasonable precision;

5.         Whether there is any public policy reason to refuse the request; and

6.         Whether the LOR requests an activity which would place an undue burden on a proposed witness or witnesses, having regard to the nature of the testimony requested.

His Lordship indicated that the Court is not reluctant to narrow the scope of a LOR, nor is it inclined to require a revised LOR before it considers the merits of what is being requested. Wittmann C.J. indicated that failing to show that the evidence is sought only for Trial purposes is not fatal; this is one factor to be considered along with all of the other factors. The Court also determined that a reviewing Court receiving a LOR cannot help but look at the evidence sought through the lens of relevancy. Wittmann C.J. significantly narrowed the LOR in this case, given that a close examination of the LOR revealed a request for an extremely broad scope of Oral Examination.

In concluding as the Court did, Wittmann C.J. noted that discovery evidence under Rule 5.2 must be “relevant and material”. The Court stressed that the key word in Rule 5.2 is “significantly”.

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