Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Limited

[Indexed as: Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd.]

Ontario Reports

Court of Appeal for Ontario,

Cronk, LaForme and Hoy JJ.A.

April 29, 2013

115 O.R. (3d) 161 | 2013 ONCA 264

Case Summary

Civil procedure — Letter of request — Enforcement — Application judge erring in dismissing application to enforce letter of request --Application judge treating factors guiding exercise of discretion as pre-conditions for enforcement — Application judge erring in refusing to enforce letter of request because evidence sought would not be adduced at trial and because there were other means of obtaining evidence — Application judge failing to apply principle that evidence obtained through alternative means must be of same value as evidence sought — Evidence obtained by applicant through Access to Information Act process not of same value as evidence sought as documents were redacted and viva voce testimony was not available — Access to Information Act, R.S.C. 1985, c. A-1.

Crown — Immunity — Section 60 of Ontario Evidence Act (which authorizes enforcement in Ontario of letter of request from foreign court) being rule of practice and procedure within meaning of s. 27 of Crown Liability and Proceedings Act rather than rule of evidence — Agent of federal Crown bound by s. 60 of Ontario Evidence Act — Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 27 — Ontario Evidence Act, R.S.O. 1990, c. E.23, s. 60.

The respondent was a federal Crown corporation and Crown agent. The applicant, an American pharmaceutical company, used medical isotopes produced by the respondent's nuclear reactor in the manufacture of its products. It suffered losses as a result of the extended closure of the reactor. When its insurer denied coverage, the applicant sued the insurer. It sought information from the respondent through a request under the Access to Information Act ("AIA"), and also obtained a letter of request from a U.S. court seeking the assistance of the Ontario courts in securing documents and viva voce testimony from the respondent for use at the trial of the U.S. action. It brought an application in Ontario under s. 60 of the Ontario Evidence Act ("OEA") to enforce the letter of request. The application judge found that the court did not have jurisdiction to enforce the letter of request because the respondent enjoyed Crown immunity and that, even if jurisdiction existed, the applicant had not satisfied the applicable legal standard for the enforcement of letters rogatory in Ontario. The application was dismissed. The applicant appealed.

Held, the appeal should be allowed.

Section 60 of the OEA is a "rule of practice and procedure" within the meaning of s. 27 of the Crown Liability and Proceedings Act ("CLPA") and not, as the application judge found, a rule of evidence. The application judge erred in interpreting the phrase "rules of practice and procedure" in s. 27 of the CLPA as restricted, in Ontario, to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Section 60 is more akin to a procedure for obtaining pre-trial discovery than a rule of evidence. The Crown is bound by s. 60 pursuant to s. 27 of the CLPA. [page162]

The application judge recognized that the statutory pre-conditions for an order under s. 60 of the OEA were met, but declined to exercise his discretion to issue an order. In doing so, he erroneously treated the factors set out in the case law to guide the exercise of discretion as "necessary criteria" for enforcement. He erred in refusing to enforce the letter of request because the evidence sought would not be adduced at trial and would only be provided to the applicant's expert witnesses as background information upon which those experts would base their opinion evidence. In refusing to enforce the letter of request because there were other means of obtaining the evidence sought, he failed to apply the principle that the evidence obtained through the alternative means must be of the same value as the evidence sought. The disclosure obtained through the Access to Information Act request was documentary and redacted, and oral testimony was not available under the AIA. The evidence sought was required for trial, and the AIA process did not provide evidence of the same value. Disclosure would not be contrary to public policy. The respondent was faced with the disclosure request as a result of engaging in a commercial activity.

Fecht v. Deloitte & Touche (1997), 1997 1799 (ON CA), 32 O.R. (3d) 417, [1997] O.J. No. 511, 97 O.A.C. 241, 15 C.P.C. (4th) 293, 69 A.C.W.S. (3d) 266 (C.A.), affg (1996), 1996 11782 (ON SC), 28 O.R. (3d) 188, [1996] O.J. No. 1170, 47 C.P.C. (3d) 165, 62 A.C.W.S. (3d) 263 (Gen. Div.); France (Republic) v. De Havilland Aircraft of Canada Ltd. (1991), 1991 7180 (ON CA), 3 O.R. (3d) 705, [1991] O.J. No. 1038, 49 O.A.C. 283, 65 C.C.C. (3d) 449, 1 C.P.C. (3d) 76, 13 W.C.B. (2d) 377 (C.A.); Friction Division Products, Inc. and E.I. Du Pont de Nemours & Co. Inc. (No. 2) (Re) (1986), 1986 2827 (ON SC), 56 O.R. (2d) 722, [1986] O.J. No. 1029, 32 D.L.R. (4th) 105 (H.C.J.); Mulroney and Coates (Re), [1987] O.J. No. 408 (C.A.), affg (1986), 1986 2613 (ON SC), 54 O.R. (2d) 353, [1986] O.J. No. 2377, 27 D.L.R. (4th) 118, 8 C.P.C. (2d) 109, 36 A.C.W.S. (2d) 495 (H.C.J.); Sparling v. Québec (Caisse de dépôt & de placement), 1988 26 (SCC), [1988] 2 S.C.R. 1015, [1988] S.C.J. No. 95, 55 D.L.R. (4th) 63, 89 N.R. 120, J.E. 89-62, 20 Q.A.C. 174, 41 B.L.R. 1, 13 A.C.W.S. (3d) 13; Temelini v. Ontario Provincial Police (Commissioner) (1999), 1999 3743 (ON CA), 44 O.R. (3d) 609, [1999] O.J. No. 1876, 174 D.L.R. (4th) 418, 120 O.A.C. 380, 38 C.P.C. (4th) 40, 88 A.C.W.S. (3d) 793 (C.A.), consd

Other cases referred to

Al Fayed v. Central Intelligence Agency, 229 F.3d 272, 2000 U.S. App. LEXIS 25454 (D.C. Cir. 2000); Alberta v. Canada (Transport Commission), 1977 150 (SCC), [1978] 1 S.C.R. 61, [1977] S.C.J. No. 40, 75 D.L.R. (3d) 257, 14 N.R. 21, 2 Alta. L.R. (2d) 72, 2 A.R. 539; Connecticut Retirement Plans and Trust Funds v. Buchan, [2007] O.J. No. 2492, 2007 ONCA 462, 225 O.A.C. 106, 42 C.P.C. (6th) 116, 158 A.C.W.S. (3d) 730; Friends of Oldman River Society v. Canada (Minister of Transport), 1992 110 (SCC), [1992] 1 S.C.R. 3, [1992] S.C.J. No. 1, 88 D.L.R. (4th) 1, 132 N.R. 321, [1992] 2 W.W.R. 193, J.E. 92-180, 84 Alta. L.R. (2d) 129, 3 Admin. L.R. (2d) 1, 7 C.E.L.R. (N.S.) 1, 31 A.C.W.S. (3d) 250; Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139, 40 L. Ed. 95 (1895); Lantheus Medical Imaging Inc. v. Zurich Am. Ins. Co., No. 10 Civ. 9371 (JPO) (JLC); Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC), [1990] 3 S.C.R. 1077, [1990] S.C.J. No. 135, 76 D.L.R. (4th) 256, 122 N.R. 81, [1991] 2 W.W.R. 217, J.E. 91-123, 52 B.C.L.R. (2d) 160, 46 C.P.C. (2d) 1, 15 R.P.R. (2d) 1, 24 A.C.W.S. (3d) 478; OptiMight Communications, Inc. v. Innovance, Inc., 2002 41417 (ON CA), [2002] O.J. No. 577, 155 O.A.C. 202, 18 C.P.R. (4th) 362, 2002 CarswellOnt 510, 112 A.C.W.S. (3d) 253 (C.A.); Pecarsky v. Lipton Wiseman Altbaum & Partners, [1999] O.J. No. 2004, 96 O.T.C. 178, 38 C.P.C. (4th) 170, 88 A.C.W.S. (3d) 775 (S.C.J.); R. v. Eldorado Nuclear Ltd., 1983 34 (SCC), [1983] 2 S.C.R. 551, [1983] S.C.J. No. 87, 4 D.L.R. (4th) 193, 50 N.R. 120, 1 O.A.C. 243, 7 Admin. L.R. 195, 8 C.C.C. (3d) 449, 77 C.P.R. (2d) 1, 11 W.C.B. 179; [page163] R. v. Hape, [2007] 2 S.C.R. 292, [2007] S.C.J. No. 26, 2007 SCC 26, 280 D.L.R. (4th) 385, 363 N.R. 1, J.E. 2007-1140, 227 O.A.C. 191, 220 C.C.C. (3d) 161, 47 C.R. (6th) 96, 160 C.R.R. (2d) 1, 73 W.C.B. (2d) 528, EYB 2007-120452; R. v. Zingre, 1981 32 (SCC), [1981] 2 S.C.R. 392, [1981] S.C.J. No. 89, 127 D.L.R. (3d) 223, 38 N.R. 272, 10 Man. R. (2d) 62, 61 C.C.C. (2d) 465, 23 C.P.C. 259, 6 W.C.B. 415; Treat America Ltd. v. Nestlé Canada, Inc., [2011] O.J. No. 3802, 2011 ONCA 560, 282 O.A.C. 311, 340 D.L.R. (4th) 707, 9 C.P.C. (7th) 1, 205 A.C.W.S. (3d) 652; Wheeler v. Ontario (Minister of Natural Resources) (2005), 2005 13039 (ON SCDC), 75 O.R. (3d) 113, [2005] O.J. No. 1544, 197 O.A.C. 117, 138 A.C.W.S. (3d) 738 (Div. Ct.)

Statutes referred to

Access to Information Act, R.S.C. 1985, c. A-1 [as am.]

Canada Business Corporations Act, S.C. 1974-75-76, c. 73

Canada Evidence Act, R.S.C. 1985, c. C-5, ss. 37-39 [as am.]

Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 66(1) [as am.], (2)(f), (s), (3) [as am.]

Crown Liability Act, S.C. 1952-53, c. 30, s. 14

Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, Parts I [as am.], II [as am.], ss. 27 [as am.], 33, 34 [as am.]

Evidence Act, R.S.O. 1990, c. E.23, ss. 52, 60 [as am.], (1) [as am.]

Interpretation Act, R.S.C. 1970, c. I-23, s. 16

Interpretation Act, R.S.C. 1985, c I-21, s. 17

Rules and regulations referred to

Alberta Rules of Court, Alta. Reg. 124/2010 [as am.]

Civil Procedure Rules, Royal Gazette, November 19, 2008 (NS)

Court of Queen's Bench Rules, Man. Reg. 553/88 [as am.]

Crown Liability and Proceedings (Provincial Court) Regulations, SOR/91-604, ss. 2, 7, 8, (2)

Queen's Bench Rules, Royal Gazette, November 19, 2008 (Sask)

Rules of Civil Procedure (PEI)

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 30.10, 53.03

Rules of Court (Sask)

Rules of Court, N.B. Reg. 82-73 [as am.]

Rules of Practice, C.R.O. 1950, Reg. 464

Rules of Practice and Procedure

Rules of Supreme Court (PEI)

Rules of the Supreme Court (NF)

Rules of the Supreme Court, 1927 (Reg. 90 under the Judicature Act) (NB)

Rules of the Supreme Court, 1950 (NS)

Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D [as am.]

Rules of the Supreme Court of Alberta, Alta. Reg. 561/57

Supreme Court Civil Rules, B.C. Reg. 168/2009 [as am.]

The Queen's Bench Rules, 1939 (Man)

The Supreme Court Rules, 1943 (BC)

Authorities referred to

McNairn, Colin H.H., Governmental and Intergovernmental Immunity in Australia and Canada (Toronto: University of Toronto Press, 1977)

Paccioco, David M., and Lee Stuesser, The Law of Evidence, 6th ed. (Toronto: Irwin Law, 2011)

Sullivan, Ruth, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008)

APPEAL from the order of K.L. Campbell J., [2012] O.J. No. 2764, 2012 ONSC 3582 (S.C.J.) dismissing an application to enforce a letter of request. [page164]

H. Scott Fairley and Brett Harrison, for appellant.

Don Jack and Matthew Diskin, for respondent.

The judgment of the court was delivered by

HOY J.A.: —

I Overview

The conceptual rationale underlying the doctrine of Crown immunity is obscure . . . It seems to conflict with the basic notions of equality before the law. The more active government becomes in activities that had once been considered the preserve of private persons, the less easy it is to understand why the Crown need be, or ought to be, in a position different from the subject.

Dickson J. in R. v. Eldorado Nuclear Ltd., 1983 34 (SCC), [1983] 2 S.C.R. 551, [1983] S.C.J. No. 87, at p. 558 S.C.R.

[1] This appeal considers whether agents in right of the Crown in Canada are immune from s. 60 of the Ontario Evidence Act, R.S.O. 1990, c. E.23 (the "OEA"), which authorizes the enforcement in Ontario of a letter of request ("LoR")¹ from a foreign court, and, if not, whether the LoR in this case should be enforced against the respondent, Atomic Energy of Canada Limited ("AECL").

[2] AECL is a federal Crown corporation and Crown agent -- that is, an agent of the Government of Canada. The Minister of Natural Resources holds its shares in trust for Her Majesty the Queen in Right of Canada.

[3] The appellant, Lantheus Medical Imaging Inc. ("Lantheus"), is an American pharmaceutical company. It used medical isotopes produced by AECL's nuclear reactor at Chalk River in the manufacture of its products. Lantheus suffered losses estimated at more than $70 million as a result of the extended closure of AECL's reactor commencing in May of 2009.

[4] Lantheus sought indemnification from its insurer, which provides coverage for "contingent business interruption losses"; the insurer denied coverage, asserting that the reactor shutdown resulted from an excluded peril under its policy. Lantheus commenced a lawsuit against its insurer: Lantheus Medical Imaging Inc. v. Zurich Am. Ins. Co., No. 10 Civ. 9371 (JPO) (JLC) (the "U.S. action").

[5] Lantheus first sought information from AECL through a request for documentary production under the [page165] Access to Information Act, R.S.C. 1985, c. A-1. Shortly after it filed that request, it obtained a LoR from the United States District Court for the Southern District of New York (the "U.S. Court"). The LoR seeks the assistance of the courts of this province in securing documents and viva voce testimony from AECL for use at the trial of the U.S. action. The U.S. court held that the LoR sought "vital" evidence and that the "cause of the water leak . . . is a significant, if not determining factor in Lantheus' ability to obtain insurance".

[6] Lantheus then commenced an application in Ontario, under s. 60 of the OEA, seeking an order giving effect in Ontario to the LoR. The application judge concluded that the court did not have jurisdiction to enforce the LoR against AECL because it enjoyed Crown immunity and, even if jurisdiction existed, Lantheus had not satisfied the applicable legal standard for the enforcement of letters rogatory in Ontario. He accordingly dismissed the application.

[7] Lantheus appeals, arguing both that the court had jurisdiction pursuant to s. 27 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (the "CLPA"), and that the application judge erred in his application of the applicable test in determining whether, if the court had jurisdiction, it should exercise its discretion to enforce the LoR.

[8] I address each of these issues in turn.

II The Jurisdictional Issue -- Crown Immunity

(1) An overview of the issues

[9] The central question on the jurisdictional issue is whether s. 60 of the OEA binds the Crown. This turns on whether it is a "rule of practice and procedure" within the meaning of that term in s. 27 of the CLPA or a rule of evidence, as the application judge found.

[10] Section 60 of the OEA provides as follows:

60(1) Where it is made to appear to the Superior Court of Justice or a judge thereof, that a court or tribunal of competent jurisdiction in a foreign country has duly authorized, by commission, order or other process, for a purpose for which a letter of request could be issued under the rules of court, the obtaining of the testimony in or in relation to an action, suit or proceeding pending in or before such foreign court or tribunal, of a witness out of the jurisdiction thereof and within the jurisdiction of the court or judge so applied to, such court or judge may order the examination of such witness before the person appointed, and in the manner and form directed by the commission, order or other process, and may, by the same or by a subsequent order, command the attendance of a person named therein for the purpose of being examined, or the production of a writing or other document or thing mentioned in the order, and may give all such directions as [page166] to the time and place of the examination, and all other matters connected therewith as seem proper, and the order may be enforced, and any disobedience thereto punished, in like manner as in the case of an order made by the court or judge in an action pending in the court or before a judge of the court.

Payment of expenses of witness

(2) A person whose attendance is so ordered is entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial in the Superior Court of Justice.

Right of refusal to answer questions and to produce documents

(3) A person examined under such commission, order or process has the like right to object to answer questions tending to criminate himself or herself, and to refuse to answer any questions that, in an action pending in the court by which or by a judge whereof or before the judge by whom the order for examination was made, the witness would be entitled to object or to refuse to answer, and no person shall be compelled to produce at the examination any writing, document or thing that the person could not be compelled to produce at the trial of such an action.

Administration of oath

(4) Where the commission, order or other process, or the instructions of the court accompanying the same, direct that the person to be examined shall be sworn or shall affirm, the person so appointed has authority to administer the oath to the person or take his or her affirmation.

[11] As the application judge explained, the law has always treated the Crown differently from other entities. This is reflected in s. 17 of the Interpretation Act, R.S.C. 1985, c. I-21:

17. No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty's rights or prerogatives in any manner, except as mentioned or referred to in the enactment.

[12] The jurisprudence is clear "that something short of express words binding the Crown will satisfy the requirements of s. 17 of the Interpretation Act": Temelini v. Ontario Provincial Police (Commissioner) (1999), 1999 3743 (ON CA), 44 O.R. (3d) 609, [1999] O.J. No. 1876 (C.A.), at para. 40. See, also, Friends of Oldman River Society v. Canada (Minister of Transport), 1992 110 (SCC), [1992] 1 S.C.R. 3, [1992] S.C.J. No. 1, at pp. 52-53 S.C.R.; Alberta v. Canada (Transport Commission), 1977 150 (SCC), [1978] 1 S.C.R. 61, [1977] S.C.J. No. 40, at p. 281 S.C.R.

[13] A province cannot validly enact legislation affecting the federal Crown in a compulsory manner: Alberta v. (Canada) (Transport Commission). Only Parliament can do so.

[14] The area of Crown liability has been subject to considerable statutory reform. The CLPA is the most recent of a series of federal statutes establishing and governing the liability of the Crown. Part I of the CLPA establishes and defines the liability of the Crown; Part II sets out jurisdiction for, as well as the procedural rules that apply to, litigation involving the Crown. [page167]

[15] Section 27 of Part II of the CLPA provides as follows:

27. Except as otherwise provided by this Act or the regulations, the rules of practice and procedure of the court in which proceedings are taken apply in those proceedings.

[16] Section 27 of the CLPA binds a federal Crown agency, in a proceeding in Ontario to which it is not a party, to the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194: Temelini.

[17] Lantheus argues that s. 60 of the OEA is, in substance, a rule of practice and procedure of the court in which the application for enforcement of the LoR was brought, and s. 27 of the CLPA accordingly constitutes the necessary federal legislative authority to bind the Crown.

[18] In response, AECL argues that ss. 33 and 34 of the CLPA, reproduced below, make clear that a "rule of evidence" is distinct from a "rule of practice and procedure", and that s. 60 of the OEA is a rule of evidence and therefore not a rule of practice and procedure within the meaning of that term in s. 27 of the CLPA.

33. Except as otherwise expressly provided in this Act, nothing in this Act affects any rule of evidence or any presumption relating to the extent to which the Crown is bound by an Act of Parliament.

34. The Governor in Council may make regulations

(a) prescribing rules of practice and procedure in respect of proceedings by, against or involving the Crown, including tariffs of fees and costs;

(d) making applicable to any proceedings by, against or involving the Crown all or any of the rules of evidence applicable in similar proceedings between subject and subject[.]

[19] Pursuant to s. 34 of the CLPA, the Governor in Council enacted the Crown Liability and Proceedings (Provincial Court) Regulations, SOR/91-604 (the "Regulations"), "prescribing the rules of practice and procedure in respect of proceedings taken in provincial courts under Part II of the [CLPA] . . .".

[20] Section 2 of the Regulations defines "provincial rules" as "the rules of practice and procedure of the court". The word "court" is in turn defined as "the court having jurisdiction under Part II of the Act to hear and determine the claim in respect of which the proceedings have been taken".

[21] Sections 7 and 8 thereof provide:

Examination for Discovery

7. Subject to sections 37 to 39 of the Canada Evidence Act, where, under the provincial rules, there is provision under which, if an action were an action between a corporation (other than an agency of the Crown) and [page168] another person, an officer or servant of the corporation could be examined for discovery, such officer or servant of the Crown or an agency of the Crown, as the case may be, as may be designated for the purpose by the Deputy Attorney General or after such designation by order of the court, may be examined for discovery during an action subject to the same conditions and with the same effect as would apply to the examination for discovery of the officer or servant of a corporation.

File list of documents

8(1) Subject to sections 37 to 39 of the Canada Evidence Act, where the Attorney General or an agency of the Crown would, if the Crown were a private person, be required under the provincial rules to file or serve a list or an affidavit of documents, the Deputy Attorney General shall, subject to the same conditions as apply between subject and subject, file or serve a list of the documents relating to the matter of which the Crown has knowledge within 60 days after the event that under the provincial rules gives rise to the obligation to file or serve the list or affidavit, or within such further time as may be allowed by the court.

(2) Where, under provincial rules, a party would be entitled to obtain production for inspection of any document or a copy of any document as against or from the Crown, if the Crown were a private person, such production for inspection or copy may be had, subject to sections 37 to 39 of the Canada Evidence Act, under order of the court after consideration has been given to any objection that would be available to the Crown if the Crown were a private person.

[22] The secondary question on the jurisdictional issue is whether, if s. 60 is a rule of evidence, the "benefit/burden exemption" to crown immunity applies -- that is, whether, because in the ordinary course AECL avails itself of the provisions of the OEA, it cannot seek to exempt itself from the "burdens" of the OEA, such as s. 60.

(2) The application judge's reasons

[23] The application judge concluded that s. 60 of the OEA was not captured by the phrase "rules of practice and procedure". He did not address the secondary, benefit/ burden exemption to Crown immunity argued on this appeal. A summary of his reasons with respect to s. 60 of the OEA is as follows.

Section 60 of the OEA is a provincially enacted statutory rule for evidence gathering.

Applying the modern approach to statutory construction, "rules of practice and procedure of the court" is limited to the court rules of practice and procedure that govern litigation conducted in any given jurisdiction and, in Ontario, refers to the Ontario Rules of Civil Procedure. The phrase does not include any provincially enacted statutory rules for evidence gathering. [page169]

Section 2 of the Regulations defines the term "provincial rules" as, for the purposes of the Regulations, meaning "the rules of practice and procedure of the court". Hence, "rules of practice and procedure of the court" in s. 27 is synonymous with the governing "provincial rules". Moreover, prior to 1985, the current Ontario Rules of Civil Procedure were called the Ontario Rules of Practice and Procedure. Those rules have never included the provisions of the OEA, either expressly or implicitly.

Sections 7 and 8(2) of the Regulations specify that the right to examine an officer or servant of an agency of the Crown, and obtain production for inspection of documents from the Crown under the provincial rules is subject to ss. 37 to 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5. Those provisions permit the Crown to object to disclosure on the basis of a "specified public interest" or on the basis that it is "sensitive information" (i.e., information relating to international relations, national defence or national security that is in the possession of the Government of Canada, and which the federal government is taking measures to safeguard) or potentially injurious to international relations, national defence or national security. If Parliament had intended to restrict the principle of Crown immunity in this international context, it would have built into the legislation the same protections provided by ss. 37 to 39 of the Canada Evidence Act.

A clearer indication from Parliament would be required to derogate from the usual principle of Crown immunity.

Mulroney and Coates (Re) (1986), 1986 2613 (ON SC), 54 O.R. (2d) 353, [1986] O.J. No. 2377 (H.C.J.), affd [1987] O.J. No. 408 (C.A.), stands for the proposition that, in the absence of some express or implied legislative indication to the contrary, the presumption of Crown immunity will prevent the enforcement of letters rogatory. This was not affected by Temelini. Mulroney (Re) therefore supports the conclusion that the Crown is not subject to s. 60 of the OEA.

(3) Analysis

(a) Statutory interpretation

[24] The central issue on this appeal is one of statutory interpretation. As the application judge noted, the correct approach to statutory interpretation is well established. The words of the enactment must be read in their entire context, in their [page170] grammatical and ordinary sense, and harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: R. Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008), at pp. 1-18.

[25] In Temelini, at para. 41, O'Connor J.A. (as he then was) identified the purpose of the CLPA:

In general terms, the purpose of the CLPA is to create liability on the federal Crown for certain causes of action where none existed at common law and to expand the jurisdiction of the courts of the provinces for proceedings involving the federal Crown.

[26] I keep this statement of purpose in mind in conducting this exercise of statutory interpretation.

(i) Rules of practice and procedure

[27] In my view, the application judge erred in interpreting the phrase "rules of practice and procedure" as restricted, in Ontario, to the Rules of Civil Procedure for two reasons.

[28] First, he did not recognize that the phrase "rules of practice and procedure" in the context of the CLPA has a broad meaning. This phrase predates the current CLPA, and was first included in the Crown Liability Act, S.C. 1952-53, c. 30, s. 14. At para. 33 of his decision, the application judge observes that, prior to 1985, the Ontario Rules of Civil Procedure were actually called the "Rules of Practice and Procedure", and that the phrase naturally refers to this specific source of procedural rules. In my view, the application judge erred in coming to this conclusion.

[29] The formal title of the Ontario Rules of Civil Procedure in 1952 was not the "Rules of Practice and Procedure", but was simply the "Rules of Practice", C.R.O. 1950, Reg. 464. Furthermore, the CLPA is a federal statute, and s. 27 is meant to refer to the courts in any province. In 1952, not a single set of provincial rules were officially titled the "Rules of Practice and Procedure". On the contrary, these rules were most often titled the "Rules of the Supreme Court" or simply the "Rules of Court".² Today, the provinces exhibit a similar variety in how they refer [page171] to their own rules of court, but none of them refers to their rules as the "Rules of Practice and Procedure".³

[30] Second, the Rules of Civil Procedure are supplementary in nature, and are by no means the only rules governing the practice and procedure of Ontario's courts.

[31] The Rules of Civil Procedure are created by the Civil Rules Committee (the "committee") pursuant to s. 66(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, (the "CJA"). The CJA itself recognizes that the committee's jurisdiction to make rules in relation to practice and procedure is not exhaustive. Section 66(1) of the CJA provides that "the Civil Rules Committee may make rules for the Court of Appeal and Superior Court of Justice in relation to the practice and procedure of those courts in all civil proceedings" (emphasis added). Subsection 66(3) of the CJA provides that the committee may make rules "supplementing the provisions of an Act in respect of practice and procedure". By describing the rules as "supplementary", this passage presumes that provincial statutes may also create rules governing the practice and procedure of courts in Ontario.

[32] In his decision, the application judge points to the fact that the Regulations passed under the CLA expressly define the term "provincial rules" as "the rules of practice and procedure of the court". He erred, however, in using this short-hand, defined term to limit the substance of the definition and conclude that these rules are limited to the Rules of Civil Procedure, and "have never included, either expressly or implicitly, the provisions of the Ontario Evidence Act".

[33] In my view, the phrase "rules of practice and procedure" as it appears in s. 27 of the CLPA has a broad meaning. It refers to rules governing the practice and procedure of provincial courts, but it does not refer only to one specific source of those rules and, in Ontario, it is clearly not restricted to rules made by the committee pursuant to the CJA. [page172]

(ii) Section 60 of the Ontario Evidence Act

[34] The next question is whether s. 60 of the OEA is a "rule of practice and procedure" or a "rule of evidence". In my view, it is better understood as a rule of practice and procedure.

[35] In the CLPA, the word "rules" is used both in the phrase "rules of practice and procedure" and the phrase "rules of evidence". Most of the "rules of evidence" are common law rules concerning the admissibility and reliability of evidence: Paccioco and Stuesser, The Law of Evidence, 6th ed. (Toronto: Irwin Law, 2011), at p. 2. The evidence Acts, such as the OEA and the Canada Evidence Act, modify some common law rules of evidence, but they also set out procedural rules for various matters. The question is which of these two general categories better encapsulates the procedure for enforcing LoRs set out in s. 60.

[36] While there is certainly some overlap between the two concepts, a general distinction can also be made between rules of procedure and rules of evidence. Black's Law Dictionary defines "rules of procedure" as "the judicial rule or manner for carrying on a civil lawsuit or criminal prosecution". It defines "rules of evidence" as "the body of law regulating the admissibility of what is offered as proof into the record of a legal proceeding": B. Garner, ed., Black's Law Dictionary, 8th ed. (St Paul, MN: Thompson West, 2004), at pp. 595 and 1241. Similarly, The Law of Evidence in Canada distinguishes between rules of evidence and rules governing court practice and procedure:

The rules of evidence control the presentation of facts before the court . . . Rules governing court practice and procedure can govern the conduct of litigation in a manner similar to evidentiary rules, but, again, these are matters ancillary to evidence law and are not considered in any detail in this text. Evidentiary principles, on the other hand, regulate (1) what matters are or are not admissible before the court; and (2) the method by which admissible facts are placed before it.

Bryant, Lederman and Fuerst, The Law of Evidence in Canada, 3rd ed. (Markham, Ont.: LexisNexis Canada, 2009), at p. 3

[37] Accepting these general definitions, s. 60 of the OEA is, in my view, more akin to a procedure for obtaining pre-trial discovery than a rule of evidence. Rather than concerning admissibility or common law rules of evidence, it sets out a procedure by which evidence can be gathered. The application judge was correct in calling s. 60 a "rule for evidence gathering", but I believe he was incorrect in thereby saying that it was not a "rule of procedure".

[38] Interestingly, it would appear that the committee potentially has the authority to pass rules in relation to the enforcement of letters rogatory. Subsection 66(2)(f) of the CJA [page173] specifically authorizes the committee to make rules in relation to "discovery and other forms of disclosure before hearing, including their scope and the admissibility and use of that discovery and disclosure in the proceeding", and s. 66(2)(s) authorizes the committee to make rules with respect to the enforcement of orders (emphasis added). Subsection 66(3) makes clear that while the committee cannot pass rules that conflict with an Act, it may make rules "supplementing the provisions of an Act in respect of practice and procedure". Therefore, it is presumably open to the committee to pass rules which parallel (but do not conflict with) the provisions of s. 60 of the OEA with respect to the enforcement of letters rogatory issued to obtain pre-trial discovery, or to supplement the provisions of s. 60 of the OEA in respect of practice and procedure. The fact that the committee might do so is in my view a compelling indication that s. 60 is a "rule of practice and procedure", rather than a "rule of evidence".

[39] In support of its argument that s. 60 is a "rule of practice and procedure", Lantheus points to the integrated nature of the OEA and the Rules of Civil Procedure. For example, s. 60 of the OEA was amended in 1985 to extend to non-parties, to match the broadening of the examination for discovery process in Ontario affected by the 1985 amendment to the Rules of Civil Procedure. (See Fecht v. Deloitte & Touche (1996), 1996 11782 (ON SC), 28 O.R. (3d) 188, [1996] O.J. No. 1170 (Gen. Div.), per Blair J., at para. 23.) Further, the OEA addresses matters which are also addressed in the Rules of Civil Procedure, such as the calling of expert witnesses (see rule 53.03 and s. 52 of the OEA). I agree that the integrated nature of the OEA and the Rules of Civil Procedure supports the conclusion that parts of the OEA are rules of practice and procedure.

(iii) Effect of comity

[40] In Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC), [1990] 3 S.C.R. 1077, [1990] S.C.J. No. 135, La Forest J. defined comity as "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws", at para. 31.⁴ More recently, in R. v. Hape, [2007] 2 S.C.R. 292, [2007] S.C.J. No. 26, 2007 SCC 26, at para. 47, [page174] Lebel J. explained that "[c]omity refers to informal acts performed and rules observed by states in their mutual relations out of, politeness, convenience and goodwill, rather than strict legal obligation". In this sense, comity refers to mutual respect between sovereign nations and holds that, generally, LoRs from foreign courts should be enforced in Canada.

[41] Lantheus argues that the doctrine of international comity should inform the modern principle of statutory interpretation and guide our understanding of the CLPA. It does not provide authority for this proposition. In response, AECL argues that no comity is due because the U.S. Court asks the courts of this Province to do something it would not. In support of this assertion, AECL proffers a case in which a U.S. court held that foreign letters rogatory are not enforceable against the United States: see Al Fayed v. Central Intelligence Agency, 229 F.3d 272, 2000 U.S. App. LEXIS 25454 (D.C. Cir. 2000), at 5-6 (QL). In that case, Mr. Al Fayed sought disclosure of details in the CIA's files regarding its investigation of the car crash that killed Princess Diana and Mr. Al Fayed's son. AECL did not provide an opinion as to the state of the law in the Southern District of New York. Of interest, in coming to the conclusion it did, the court in Al Fayed noted that the courts in the United States were in "some disarray" as to whether discovery could be obtained against the government when it is not a party. There is no such confusion in Ontario. The issue of Crown liability under the Rules of Civil Procedure for non-party disclosure was put to rest in Ontario in 1998 by Temelini, discussed below.

[42] At issue here is the interpretation of domestic legislation, as it is applied in Canada. On balance, I am not persuaded that in the circumstances comity is a relevant factor in interpreting the phrase "rules of practice and procedure" in the CLPA. However, as discussed below, international comity underpins the court's approach to enforcement of a LoR: see R. v. Zingre, 1981 32 (SCC), [1981] 2 S.C.R. 392, [1981] S.C.J. No. 89. Accordingly, I consider comity below.

(iv) Temelini

[43] In Temelini, this court concluded that s. 27 of the CLPA constituted the necessary federal authority pursuant to s. 17 of the Interpretation Act to render the Rules of Civil Procedure binding upon the Crown, and that the reference to "proceedings" in s. 27 included proceedings in which the federal Crown was not a party. Therefore, the Crown was subject to non-party discovery pursuant to rule 30.10. The court in Temelini did not need to consider the meaning of the phrase "rules of practice and procedure". [page175]

[44] O'Connor J.A., at paras. 50 and 51 of Temelini, stated that such an interpretation was "in keeping with the modern legislative trend to . . . move towards putting the Crown on an equal footing with everyone else" and noted the "desirability of narrowing or removing Crown immunity from pre-trial discovery obligations".

[45] In my view, an interpretation that s. 60 of the OEA is a "rule of practice and procedure" is similarly in keeping with the modern legislative trend of moving towards putting the Crown on an equal footing with everyone else, at least in commercial matters.

(v) Mulroney (Re)

[46] Both the application judge and AECL rely on Mulroney (Re) to argue that, at common law, the presumption of Crown immunity prevents the enforcement of a LoR against the Crown. However, Mulroney (Re) is not of assistance to AECL. As O'Connor J.A. noted, at para. 59 of Temelini, "cases that rely on the common law principle that the Crown is not compellable for pre-trial non-party production and discovery do not assist in interpreting the meaning of s. 27". In this context, he explicitly referred to Mulroney (Re) and related cases. At issue here is the interpretation of s. 27 of the CLPA, and Mulroney (Re) did not consider s. 27 of the CLPA. The application judge accordingly erred in relying on this authority.

(vi) Sections 37 to 39 of the Canada Evidence Act

[47] Respectfully, I do not agree with what I understand to be the application judge's conclusion that protections afforded by ss. 37 to 39 of the Canada Evidence Act are not available to the Crown where a party seeks to enforce a LoR against it pursuant to s. 60 of the OEA.

(vii) Conclusion

[48] I conclude that the procedure for enforcing a LoR set out in s. 60 of the OEA is correctly understood as a rule of practice and procedure, and that the Crown is therefore bound by it pursuant to s. 27 of the CLPA.

(b) The benefit/burden exemption to Crown immunity

[49] Lantheus also advances an alternative argument. It points to the evidence before the application judge that AECL has been involved in litigation, as plaintiff and defendant. Perforce, Lantheus submits, AECL has implicitly accepted the [page176] benefits of the OEA, which applies to all actions and other matters respecting which the legislature has jurisdiction. The benefit/burden exemption to Crown immunity described in Sparling v. Québec (Caisse de dépôt de placement), 1988 26 (SCC), [1988] 2 S.C.R. 1015, [1988] S.C.J. No. 95, discussed below, and ignored by the application judge, therefore applies to s. 60 of the OEA. Phrased differently, if the benefit/burden exemption applies, AECL has waived its prerogative or immunity, s. 17 of the Interpretation Act is accordingly not triggered, and it is unnecessary to consider whether, for the purposes of s. 27 of the CLPA, s. 60 of the OEA is a rule of practice and procedure or a rule of evidence.

[50] In Sparling, the Supreme Court of Canada considered whether the Caisse de dépôt et placement du Québec, as agent of the Crown in right of Quebec, could invoke the Crown immunity provided for in s. 16 of the Interpretation Act, R.S.C. 1970, c. I-23, and thereby escape the insider trading provisions of the Canada Business Corporations Act, S.C. 1974-75-76, c. 73 (the "CBCA"). Section 16 of the [former] Interpretation Act then in effect is identical to s. 17 of the current Interpretation Act.

[51] The Supreme Court held that the benefit/burden exemption (sometimes referred to as the "waiver" exemption) was an exception to Crown immunity under the Interpretation Act. At paras. 18 and 28, La Forest J., writing for the court, described the exemption:

By taking advantage of legislation the crown will be treated as having assumed the attendant burdens, though the legislation has not been made to bind the crown expressly or by necessary implication. The force of the rule of immunity is avoided by the particular conduct of the crown and the integrity of the relevant statutory provisions, beneficial and prejudicial.

[The exemption's] application depends not upon the existence or breadth of a statutory scheme regulating an area of commerce or other activity, but, as noted earlier, upon the relationship or nexus between the benefit sought to be taken from a statutory or regulatory provision and the burdens attendant upon that benefit.

[52] La Forest J. concluded, at para. 24, that the act of purchasing a share was an implicit acceptance of the benefits of the CBCA, and those benefits were "indissolubly intertwined with the restrictions attendant upon them". By buying a share to which the CBCA applies, the Crown was bound by the provisions of the CBCA that define and regulate the rights and obligations of shareholders. The Caisse was therefore subject to the insider trading provisions in the CBCA.

[53] While sympathetic to a broad application of the benefit/ burden exemption, I am not satisfied that it applies in this case. [page177] La Forest J. in Sparling, held that the Crown will not be found to have assumed the burden of a statute unless it actively relied on a statute to secure positive rights. In coming to this conclusion, he relied on C.H.H. McNairn in Governmental and Intergovernmental Immunity in Australia and Canada (Toronto: University of Toronto Press, 1977), at pp. 11-12; there, McNairn explained that the Crown will not be found to have assumed the burden of a statute unless it actively relied on a statute to secure positive rights. (See, also, the Divisional Court's decision in Wheeler v. Ontario (Minister of Natural Resources (2005), 2005 13039 (ON SCDC), 75 O.R. (3d) 113, [2005] O.J. No. 1544 (Div. Ct.), at para. 11.)

[54] While there was evidence before the application judge that AECL had been involved in litigation, both as plaintiff and defendant, there was no evidence, and, indeed, no submissions from Lantheus, as to the benefits obtained, or the positive rights acquired, by AECL under the OEA, and whether or how those benefits were intertwined with s. 60 of the OEA.

III Applicable Test for Enforcement of Letters Rogatory

[55] Having concluded that AECL is bound by s. 60 of the OEA, I will next consider whether the application judge erred in refusing to enforce the LoR against AECL in this case. Lantheus argues that he erred in law as to the applicable standard for the enforcement of the LoR, and that he erred in his application of that standard to this case.

(1) An overview of the applicable test

[56] Subsection 60(1) of the OEA establishes several conditions that must be met before the court may grant an order for the examination of a witness. (For example, a court or tribunal of competent jurisdiction in a foreign country must have duly authorized the obtaining of the testimony.) If those pre-conditions are met, the court "may" grant the order. In this case, it is conceded that these statutory pre-conditions were met. The issue is whether the application judge applied the correct test in declining to exercise his discretion.

[57] As mentioned above, the central concept guiding the enforcement of LoRs is the comity of nations. In Zingre, at para. 18, Dickson J., writing for the Supreme Court of Canada, established the framework for the exercise of this discretion:

It is upon this comity of nations that international legal assistance rests. Thus the courts of one jurisdiction will give effect to the laws and judicial decisions of another jurisdiction, not as a matter of obligation, but out of mutual deference and respect. A foreign request is given full force and effect unless it be contrary to the public policy of the jurisdiction to which the [page178] request is directed (see Gulf Oil Corp. v. Gulf Canada Ltd., 1980 192 (SCC), [1980] 2 S.C.R. 39) or otherwise prejudicial to the sovereignty or the citizens of the latter jurisdiction.

[58] As Doherty J.A. observed in France (Republic) v. De Havilland Aircraft of Canada Ltd. (1991), 1991 7180 (ON CA), 3 O.R. (3d) 705, [1991] O.J. No. 1038 (C.A.), at para. 29, "[t]his modern approach not only recognizes the inherent value in international judicial co-operation between friendly nations, but also reflects an enlightened self-interest".

[59] The test requires that the court [De Havilland, at para. 36]

. . . consider whether the request imposes any limitation or infringement on Canadian sovereignty and whether justice requires an order for the taking of commission evidence. The considerations encompassed by the phrase "Canadian sovereignty" . . . include as assessment of whether the request would give extra-territorial authority to foreign laws which violate relevant Canadian or provincial laws . . . ; whether granting the request would infringe on recognized Canadian moral or legal principles . . . ; and whether the request would impose an undue burden on, or do prejudice to, the individual whose evidence is requested."

[60] Friction Division Products, Inc. and E.I. Du Pont de Nemours & Co. Inc. (No. 2) (Re) (1986), 1986 2827 (ON SC), 56 O.R. (2d) 722, [1986] O.J. No. 1029 (H.C.J.), at p. 732 O.R., identified six, non-exhaustive factors for consideration in determining whether to enforce a letter of request:

(1) the evidence sought is relevant;

(2) the evidence sought is necessary for trial and will be adduced at trial, if admissible;

(3) the evidence is not otherwise obtainable;

(4) the order sought is not contrary to public policy;

(5) the documents sought are identified with reasonable specificity;

(6) the order sought is not unduly burdensome, having in mind what the relevant witnesses would be required to do, and produce, were the action to be tried here.

[61] While some cases describe the six factors identified in Friction (Re) as pre-conditions (see, for example, Connecticut Retirement Plans and Trust Funds v. Buchan, [2007] O.J. No. 2492, 2007 ONCA 462, 225 O.A.C. 106, at para. 7), others have made clear that, with the exception of the fourth factor, the factors in Friction (Re) are "useful guideposts" and not rigid pre-conditions to the exercise of a judge's discretion. (See, for example, OptiMight Communications, Inc. v. Innovance, Inc., 2002 41417 (ON CA), [2002] O.J. No. 577, 2002 CarswellOnt 510, 155 O.A.C. 202 (C.A.), at paras. 22 and 23; [page179] Pecarsky v. Lipton Wiseman Altbaum & Partners, [1999] O.J. No. 2004, 96 O.T.C. 178 (S.C.J.), at para. 15; and, most recently, this court's decision in Treat America Ltd. v. Nestlé Canada, Inc., [2011] O.J. No. 3802, 2011 ONCA 560, 340 D.L.R. (4th) 707, at para. 12.) Indeed, in De Havilland, this court made no reference to the Friction (Re) factors.

[62] Nevertheless, a few points are worth making regarding these factors.

[63] First, the purpose for which the evidence is required is only one of the factors relevant to the exercise of discretion. While generally Canadian courts will order the taking of commission evidence only for the purpose of gathering evidence to be used at trial, there is no rule against making such an order in relation to pre-trial proceedings: Zingre, para. 22; De Havilland, para. 31; Fecht v. Deloittte & Touche, supra (Gen. Div.), para. 23, affd (1997), 1997 1799 (ON CA), 32 O.R. (3d) 417, [1997] O.J. No. 511, 97 O.A.C. 241 (C.A.).

[64] Second, the factor of the evidence being "not otherwise obtainable" does not mean that no evidence on the subject in issue is available. Rather, it means that "evidence of the same value as that sought from the person to be examined cannot be otherwise obtained": Connecticut Retirement, at para. 19; see, also, Treat, at para. 24.

[65] Lastly, the enforcement of the LoR must not be contrary to public policy or inconsistent with the laws of Ontario: Treat, at para. 12.

(2) The application judge's reasons on the enforcement issue

[66] A summary of the application judge's reasons on this issue is as follows:

The requested evidence was identified with reasonable specificity and is relevant. It is not unduly burdensome or contrary to Canadian public policy for the Crown to produce it.

Lantheus failed to establish all six of the necessary criteria for the enforcement of letters rogatory.

Lantheus did not establish that the evidence sought is necessary for the American litigation, and will be adduced at trial. While the information that AECL has is vital to Lantheus, "Lantheus only wants this information so that it may provide it to its own expert witnesses as background information upon which those experts will base their expert opinion evidence."

Letters rogatory are a remedy of last resort. Lantheus did not establish that the evidence was not otherwise [page180] obtainable. AECL has provided Lantheus with considerable documentation. The evidence that Lantheus seeks through the letters rogatory process had already been provided through the mechanism of the Access to Information Act.

Enforcement would impact on Canadian sovereignty because it would trench upon Crown immunity. Given that the evidence has already been provided, justice does not require the enforcement of the letters rogatory.

(3) Analysis: did the application judge commit an error in principle?

[67] Lantheus submits that the application judge made three legal errors:

(i) in exercising his discretion as to whether or not to enforce the LoR, he treated the six factors identified in Friction (Re) as pre-conditions to the enforcement of the LoR, as opposed to useful guideposts;

(ii) contrary to Zingre and De Havilland, he required that the evidence sought be used at trial (and, in any event, he erred in concluding that the evidence was not necessary for trial); and

(iii) he concluded that letters rogatory are a remedy of last resort and should not be granted if there are other means of obtaining the evidence sought, even if more cumbersome and less efficient, and failed to consider whether evidence of the same value could be obtained, as required by Connecticut Retirement and Treat.

[68] I agree.

[69] As discussed above, the six factors identified in Friction (Re) are "guideposts", not pre-conditions. Yet, the application judge's reasons reveal that he treated the factors as pre-conditions. This is demonstrated by his conclusion, at para. 85: "In conclusion, Lantheus has failed to establish all six of the necessary criteria for the enforcement of letters rogatory . . . Accordingly, the application by Lantheus cannot succeed."

[70] Moreover, Osbourne J.'s identification of the factors in Friction (Re) pre-dated this court's decisions in De Havilland and Fecht, both of which made clear that a LoR may be enforced for pre-trial purposes. The application judge therefore erred when he held that the evidence sought must be adduced at trial.

[71] Finally, while referring in his reasons to the principle that the evidence obtained through the alternative means must be [page181] of the "same value" as the evidence sought, in my view, the application judge failed to apply that principle. The disclosure obtained through the Access to Information Act request was documentary and redacted. Documentary disclosures, especially when redacted, even if voluminous (and perhaps more so if voluminous), are not of the same value as the viva voce testimony of a responsible individual who can explain the documentation.

(4) Application of the correct principles

[72] Having concluded that the application judge erred in the application of the relevant principles in the exercise of his discretion, this court must consider if it will enforce the LoR.

[73] I would do so.

[74] No issue is taken with the application judge's conclusion that the requested evidence was identified with reasonable specificity and is relevant, and that it is not unduly burdensome or contrary to Canadian public policy for the Crown to produce it.

[75] The application judge characterized the evidence sought as "vital", but concluded that, through the Access to Information Act process, the evidence had already been provided to Lantheus.

[76] Each party filed fresh evidence on this appeal without objection from the other.

[77] In connection with the application, AECL filed evidence, accepted by the application judge, that AECL had already produced all documents in its possession that would be responsive to Lantheus' ATI request, and hence the LoR. Since the application was heard, AECL has disclosed further information; all relevant evidence seemingly had not been provided to Lantheus as at the time of the application. Moreover, the evidence of Lantheus' expert is that even with this additional information, the disclosures to date in the ATI process, some of which are heavily redacted, do not include relevant quantitative scientific or technical data and it is clear from the documents that have been produced that other documents exist. Furthermore, there is no explanation as to how or why AECL reached a particular conclusion in a given instance. Oral testimony is required in order to provide context in this complex technical matter, and to authenticate documents in order to make them admissible in the U.S. action.

[78] I therefore conclude that the evidence sought has not already been provided to Lantheus, and, while it is not essential that it be required for trial, the evidence sought is in fact required for trial. This case is very far from a "fishing expedition". [page182]

[79] Significantly, the ATI process does not afford Lantheus the opportunity to obtain oral testimony. It therefore does not provide evidence of the same value.

[80] As the application judge noted, in this case disclosure is not contrary to public policy. AECL is faced with the disclosure request as a result of engaging in a commercial activity.

[81] As discussed above, ss. 7 and 8(2) of the Regulations make the right to examination for discovery or production of a document under the "provincial rules" subject to ss. 37 to 39 of the Canada Evidence Act, and s. 2 of the Regulations defines "provincial rules" as the "the rules of practice and procedure of the court". I have concluded that the phrase "rules of practice and procedure" is not restricted to the Rules of Civil Procedure and s. 60 of the OEA is a rule of practice and procedure. It follows that Lantheus' right to disclosure from AECL is subject to ss. 37 to 39 of the Canada Evidence Act. AECL does not argue that the information sought relates to, or is potentially injurious to, international relations or national defence or national security. Enforcement would not infringe on Canadian sovereignty.

[82] I therefore conclude that justice requires that the LoR be enforced.

IV Summary

[83] In summary, contrary to the application judge, I conclude that the effect of s. 27 of the CLPA is that AECL, as a Crown agent, is not immune from s. 60 of the OEA. As a result, the Superior Court of Justice had jurisdiction to enforce the LoR issued by the U.S. Court against AECL. In my view, the application judge did not apply the correct principles in determining whether, if he had jurisdiction, he should exercise his discretion to enforce the LoR. Applying the correct principles, I conclude that justice requires that the LoR be enforced.

V Disposition and Costs

[84] In the result, I would allow the appeal and issue an order enforcing the LoR.

[85] The parties agreed that the successful party on this appeal would be entitled to costs of the appeal calculated on a partial indemnity scale in the all-inclusive amount of $30,000, and to costs below in the all-inclusive amount of $18,189. I would accordingly order costs in favour of Lantheus in such amounts.

Appeal allowed.

Notes

1 Letters of request are also called letters rogatory.

2 In 1952, the rules in each of the provinces were titled as follows: Alberta, Rules of the Supreme Court of Alberta (Alta. Reg. 561/57, as authorized by Order in Council 716/44); British Columbia, The Supreme Court Rules, 1943; Manitoba, The Queen's Bench Rules, 1939; Newfoundland, Rules of the Supreme Court; New Brunswick, Rules of the Supreme Court, 1927 (Reg. 90 under the Judicature Act); Nova Scotia, Rules of the Supreme Court, 1950; Prince Edward Island, Rules of Supreme Court; Saskatchewan, Rules of Court.

3 Today, the rules in the provinces are titled as follows: Alberta, Alberta Rules of Court, Alta. Reg. 124/2010; British Columbia, Supreme Court Civil Rules, B.C. Reg. 168/2009; Manitoba, Court of Queen's Bench Rules, Man. Reg. 553/88; New Brunswick, Rules of Court, N.B. Reg. 82-73; Newfoundland and Labrador, Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D; Nova Scotia, Civil Procedure Rules, Royal Gazette, November 19, 2008; Prince Edward Island, Rules of Civil Procedure; Saskatchewan, Queen's Bench Rules, Royal Gazette, November 19, 2008.

4 La Forest J.'s definition here is itself a quote from the decision of the United States Supreme Court in Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139 (1895), at pp. 163-64 U.S.

End of Document