COURT FILE NO.: CV-12-444473
DATE: 20120619
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Lantheus Medical Imaging Inc.
- and -
Atomic Energy of Canada Ltd.
Brett Harrison and Scott Fairley for the Applicant, Lantheus Medical Imaging Inc.
Don Jack and Matthew Diskin for the Respondent, Atomic Energy of Canada Ltd.
HEARD: May 7, 2012
K.L. CAMPBELL J.:
I Introduction
[1] Lantheus Medical Imaging Inc. is an American pharmaceutical company that manufactures and distributes medical imaging products. These products are used to detect coronary and vascular disease. Lantheus has commenced an action in New York in the United States District Court against its insurer Zurich American Insurance Co. Lantheus seeks in excess of $70 million in damages from Zurich for an alleged breach of its contractual obligations to indemnify Lantheus. Lantheus suffered losses from the extended closure of the National Research Universal (NRU) nuclear reactor at Chalk River, Ontario. Prior to this shutdown, the NRU reactor had been the principal supplier of the medical isotopes used by Lantheus in the manufacture of its radiopharmaceutical products.
[2] In the course of this litigation, on January 11, 2012, United States District Court Judge J.L. Cott granted a motion by Lantheus for the issue of amended letters rogatory seeking the assistance of this court in obtaining the production of documents from Atomic Energy of Canada Ltd. (AECL) and in securing the oral deposition testimony of a AECL witness knowledgeable about the causes underlying the shutdown of the NRU reactor. Shortly thereafter, Lantheus commenced this application, under s. 60 of the Ontario Evidence Act, R.S.O. 1990, chap. E.23, seeking an order giving effect in Ontario to these amended letters rogatory.
[3] AECL is a federal Crown corporation and Crown agent. Its shares are held by the Minister of Natural Resources in trust for Her Majesty the Queen in right of Canada. Since its incorporation in 1952, AECL has been the Canadian federal agency responsible for research, development and the promotion of nuclear technology. Accordingly, for some 60 years, AECL has been the custodian of Canada’s nuclear technology. As part of that important mandate, AECL is responsible for the oversight and operation of the NRU nuclear reactor at Chalk River.
[4] AECL has already provided Lantheus with a considerable body of information in response to an earlier request by Lantheus under the federal Access to Information Act, R.S.C. 1985, chap. A-1. Indeed, AECL says that it has now disclosed all of the documents that Lantheus would be entitled to receive through enforcement of the letters rogatory. Lantheus complains that this information is wholly inadequate and heavily redacted and continues to seek the enforcement of the amended letters rogatory. AECL is opposed to the application.
[5] There are essentially two broad issues on this application. First, does the court have jurisdiction to enforce the letters rogatory against AECL given that it is a Crown corporation that enjoys the statutory presumption of Crown immunity? Second, if this jurisdiction exists as against AECL, has Lantheus satisfied all aspects of the applicable legal standard for the enforcement of letters rogatory in Ontario?
II The Jurisdictional Issue - Crown Immunity
A. Introduction
[6] AECL contends that this court has no jurisdiction to enforce the letters rogatory from the United States District Court because AECL, as a Crown corporation and Crown agent, enjoys Crown immunity against such enforcement. Lantheus, on the other hand, contends that this court has jurisdiction to enforce the letters rogatory against AECL, a non-party to the American litigation between Lantheus and Zurich, just as it would against any private non-party to the litigation under s. 60 of the Ontario Evidence Act.
[7] This is the second time in this case that the United States District Court has sent letters rogatory to Ontario to request assistance in gathering evidence pursuant to s. 60 of the Ontario Evidence Act. On July 27, 2011, the first time Lantheus sought the enforcement of letters rogatory, Pollak J. dismissed the application, without prejudice to Lantheus to renew it, on the basis that the United States District Court had not had the opportunity to consider the potential application of the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602 et seq. to letters rogatory. After fully and carefully considering this issue, Judge J.L. Cott concluded that it was appropriate to issue the amended letters rogatory notwithstanding the Foreign Sovereign Immunities Act. In the alternative, Judge Cott concluded that, in any event, the activities of AECL fell within the “commercial activity” exception to the immunity, thus providing an additional basis for granting the amended letters rogatory. Of course, these conclusions by Judge Cott regarding the United States Foreign Sovereign Immunities Act do not resolve the issue of the potential applicability of the principle of Crown immunity in Canada, as reflected in s. 17 of our federal Interpretation Act, R.S.C., 1985, chap. I-21, to the enforcement of letters rogatory in Ontario.
B. The General Principle of Crown Immunity
[8] Historically, the law has always treated the Crown differently from other legal entities. This special treatment flowed from the unique position of the Sovereign. Most notably, at common law there was the rule of Crown immunity. This was a rule of statutory interpretation to the effect that the Crown was not bound by any statute in the absence of express words to that effect or necessary implication. This rule was sometimes expressed in terms of a “presumption” and sometimes in terms of a “prerogative” of the Crown. But regardless of how the rule was characterized, it operated so as to leave the Crown immune from the operation of any statute unless: (1) there was language in the statute which “expressly” bound the Crown; or (2) it was “manifest” from the terms of the statute that the intent of the drafters was that the Crown should be bound (ie. that the legislation would be “wholly frustrated” if it was construed as not binding the Crown). See: Peter W. Hogg, Constitutional Law of Canada (5th ed., 2007), vol. 1, § 10.8, at pp. 314-323.
[9] In Province of Bombay v. Municipal Corporation of Bombay, [1947] A.C. 58 (J.C.P.C.) at pp. 61-63, Lord du Parcq, delivered the classic formulation of this rule of Crown immunity:
The general principle to be applied in considering whether or not the Crown is bound by general words in a statute is not in doubt. The maxim of the law in early times was that no statute bound the Crown unless the Crown was expressly named therein ... But the rule so laid down is subject to at least one exception. The Crown may be bound, as has often been said, “by necessary implication.” If, that is to say, it is manifest from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound, then the result is the same as if the Crown had been expressly named. It must then be inferred that the Crown, by assenting to the law, agreed to be bound by its provisions.
If it can be affirmed that, at the time that the statute was passed and received royal sanction, it was apparent from its terms that its beneficent purpose must be wholly frustrated unless the Crown were bound, then it may be inferred that the Crown has agreed to be bound. Their Lordships will add that when the Court is asked to draw this inference, it must always be remembered that, if it be the intention of the legislature that the Crown shall be bound, nothing is easier than to say so in plain words.
C. Legislative Confirmation of the Principle of Crown Immunity
[10] Various formulations of the presumption of Crown immunity have always been statutorily incorporated into the federal Interpretation Act. These statutory formulations of the rule have been even more protective of the Crown than the common law rule. In the first session of the first Parliament of Canada the following statutory rule of Crown immunity was enacted in s. 7 of An Act Respecting the Statutes of Canada, S.C. 1867, chap. 1:
No provision or enactment in any Act affects, in any manner whatsoever, the rights of Her Majesty, her heirs or successors, unless it is expressly stated therein that Her Majesty is bound thereby.
[11] This formulation of the federal Crown immunity rule remained unaltered until the 1967-1968 amendments. At that time it was changed to its present form. Section 17 of the Interpretation Act now provides as follows:
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 governing authorities that have considered these provisions have consistently construed them so as to provide broad Crown immunity protection. See, for example: Gauthier v. The King (1918), 1918 CanLII 85 (SCC), 56 S.C.R. 176; Quebec (Attorney General) v. Canada (Attorney General), 1932 CanLII 353 (UK JCPC), [1932] A.C. 514 (J.C.P.C.) at p. 523; Canadian Broadcasting Corp. v. Ontario (Attorney General), 1959 CanLII 2 (SCC), [1959] S.C.R. 188; Alberta v. Canadian Transport Commission, 1977 CanLII 150 (SCC), [1978] 1 S.C.R. 61; R. v. Ouellette, 1980 CanLII 9 (SCC), [1980] 1 S.C.R. 568; R. v. Canadian Broadcasting Corp., 1983 CanLII 50 (SCC), [1983] 1 S.C.R. 339; R. v. Eldorado Nuclear Ltd.; R. v. Uranium Canada Ltd., 1983 CanLII 34 (SCC), [1983] 2 S.C.R. 551; Alberta Government Telephones v. Canadian Radio-television and Telecommunications, 1989 CanLII 78 (SCC), [1989] 2 S.C.R. 225; Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3, at pp. 52-53; Nova Scotia Power Inc. v. Canada, 2004 SCC 51, [2004] 3 S.C.R. 53, at para. 12-18.
[13] These authorities collectively hold that, under s. 17 of the federal Interpretation Act, there remains a presumption that the Crown is not bound by enacted legislation, but that this presumption may be overcome where the statute in question has “clearly conveyed an intention to bind the Crown.” In the Alberta Government Telephones case the Supreme Court of Canada, at p. 281, in an attempt to provide guidelines as to when legislation clearly conveys such an intention, indicated that the statutory presumption in s. 17 would be displaced in at least the following three situations, namely: (1) where the legislation uses “expressly binding words,” such as “Her Majesty is bound;” (2) where there exists a clear legislative intention to bind the Crown which is “manifest from the very terms of the statute,” in that the legislative intention to bind the Crown is revealed when the provision is read in the context of other provisions; and (3) where the purpose of the statute would be “wholly frustrated” if the Crown were not bound by the statute, in that an “absurdity” as opposed to simply an “undesirable result,” would be achieved by interpreting the legislation as not binding the Crown. In the Oldman River Society case, the Supreme Court of Canada held that Crown immunity could be overcome by “necessary or logical implication” by means of a “contextual analysis” of the statute, which would include the circumstances which led to its enactment and the mischief to which it was directed.
D. The Crown Liability and Proceedings Act and Regulations
1. Introduction
[14] In arguing that the principle of Crown immunity does not prevent the enforcement of the amended letters rogatory in the present case, Lantheus relies upon s. 27 of the Crown Liability and Proceedings Act, R.S.C., 1985, chap. C-50, which states:
Except as otherwise provided by this Act or the Regulations, the rules of practice and procedure in the court in which proceedings are taken apply in those proceedings.
[15] Lantheus argues that the “rules of practice and procedure” that apply on this “proceeding” include the potential enforcement of letters rogatory under s. 60(1) of the Ontario Evidence Act.
2. The Decision of the Court of Appeal for Ontario in Temelini v. O.P.P.
[16] In advancing this argument, Lantheus relies upon the decision of the Court of Appeal for Ontario in Temelini v. Ontario Provincial Police (Commissioner) (1999), 1999 CanLII 3743 (ON CA), 44 O.R. (3d) 609. In that decision the court interpreted s. 27 of the Crown Liability and Proceedings Act as binding a federal Crown agency, in a proceeding in Ontario to which it was not a party, to the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[17] The plaintiff in that case had brought an action against an RCMP officer and an RCMP employee for malicious prosecution. The RCMP was not itself a party to the litigation. During the course of the discovery process, the plaintiff sought production of some of the investigative files of the RCMP. Indeed, the plaintiff moved under rule 30.10 for an order requiring the federal Crown, as represented by the RCMP, to produce these investigative files. The Department of Justice resisted the motion, claiming Crown immunity from pre-trial production and discovery obligations. At first instance the Master ordered production. However, on appeal, this court set aside the order. The Court of Appeal later restored the order of the Master.
[18] O’Connor J.A., as he then was, delivering the judgment of the Court of Appeal, held, at para. 30-33, that rule 30.10, being a provincial enactment, could not affect the federal Crown in a compulsory manner. He described this as a “well established” rule, citing Alberta v. Canadian Transport Commission. O’Connor J.A. also held that rule 30.10 did not expressly or by necessary implication bind the Crown. Accordingly, O’Connor J.A. concluded that, in the absence of legislation effectively binding the Crown to rule 30.10, the Crown was not compellable for pre-trial production or discovery.
[19] However, O’Connor J.A. also concluded that s. 27 of the Crown Liability and Proceedings Act, properly interpreted, provided the “necessary federal legislative authority to bind the federal Crown” to comply with rule 30.10 of the Ontario Rules of Civil Procedure. More particularly, at para. 34-43, O’Connor J.A. concluded that s. 27 had the effect of binding the federal Crown to the rules of practice and procedure referred to in the section. Indeed, in his conclusion on this issue, O’Connor J.A. stated, at para. 43:
Thus, I am satisfied that s. 27 ought to be interpreted as if it read, “except as otherwise provided by this Act or the Regulations, the rules of practice and procedure in the court in which proceedings are taken apply to the federal Crown in those proceedings.”
[20] As to the nature of the “proceedings” under s. 27 which bound the federal Crown, O’Connor J.A., at para. 44-58, interpreted that term broadly, rejecting the argument that the provincial rules of practice and procedure only bound the federal Crown in cases where the federal Crown was a party. Instead, O’Connor J.A. held that the “proceedings” referred to in s. 27 included court proceedings in a province where the federal Crown was not a party. Despite the lack of express language in s. 27 to this effect, O’Conner J.A. concluded that this was the “necessary and logical inference” from the legislation, especially given that the purpose of the legislation was to “create liability on the federal Crown” for certain causes of action and “expand the jurisdiction” of the provincial courts in matters involving the federal Crown.
[21] In the result, O’Connor J.A. concluded, at para. 63, that “as a matter of necessary or logical inference,” the intention of s. 27 of the Crown Liability and Proceedings Act, read in the context of the other provisions in the legislation, was “to bind the federal Crown to the rules of practice and procedure in all proceedings, including those in which it is not a party.” See also: Goguen v. Leger Estate, [2004] N.B.J. No. 60 (Q.B.); Faltenhine v. Bragg Communications Inc. (2007), 2007 NSSC 229, 257 N.S.R. (2d) 156 (S.C.); Corbett v. Samsports.Com Inc. (2007), 2007 ABCA 151, 73 Alta.L.R. (4th) 5 (C.A.).
[22] One of the alternative arguments that was made by the appellant in Temelini was that s. 8(2) of the Crown Liability and Proceedings (Provincial Court) Regulations (SOR/91-604) expressly provided for this same procedural rule, binding the federal Crown to provide pre-trial document production where, under “provincial rules” (ie. the rules of practice and procedure of the court), production could be required from a “private person.” Such document production under s. 8(2) of the Regulation was subject only to the operation of ss. 37-39 of the Canada Evidence Act, R.S.C. 1985, chap. C-5.
[23] In considering this argument, O’Connor J.A. noted, at para. 61, that s. 8(2) of this Regulation would appear to make an order under Rule 30.10 “unnecessary” as the wording of s. 8(2) “does not limit production by the Crown to proceedings in which the Crown is a party.” In the end, however, O’Connor J.A. rejected the argument as the enabling legislation itself, namely, s. 34(a) of the Crown Liability and Proceedings Act, indicated only that the Governor in Council was permitted to make regulations “prescribing rules of practice and procedure in respect of proceedings by or against the Crown” [emphasis added]. O’Connor J.A. concluded that, given this regulatory prescription, only allowing regulations about “practice and procedure” in cases where the Crown was a party, s. 8(2) could not be interpreted to apply more broadly than permitted by the regulation-making authority in s. 34(a). Therefore, s. 8(2) of the Regulations could not be intepreted so as to apply where the federal Crown was “not a party to the proceedings.”
[24] In advancing this same argument anew in this case, Lantheus relies upon the fact that subsequent to Temelini, in 2006, s. 34(a) of the Crown Liability and Proceedings Act was amended so as to effectively overcome this restriction on the operation of s. 8(2) of the Regulation. It now permits the Governor in Council to make regulations “prescribing rules of practice and procedure in respect of proceedings by, against or involving the Crown” [emphasis added].
[25] In my view, Lantheus is correct that Parliament’s intention in expanding the regulation-making authority of the Governor in Council was to, inter alia, permit s. 8(2) of the Regulations to operate in the fashion interpreted by the Court of Appeal judgment in Temelini. In other words, under this expanded regulation-making authority, s. 8(2) of the Regulations must now be viewed as binding the federal Crown, even in cases where it is not a party, to the document production that would be required of a private person, subject only to the operation of ss. 37-39 of the Canada Evidence Act. This same conclusion was reached in Conseil québécois sur le tabac et la santé v. JTI-Macdonald Corp., 2009 QCCS 5892.
[26] In any event, given the effect of the decision in Temelini and the subsequent expansion of the regulation-making authority by Parliament, it is now clear that there are at least two reasons to conclude that the federal Crown is bound by the “rules of practice and procedure” in all proceedings in Ontario, including those proceedings in which it is not a party.
[27] The further important question that remains to be resolved in the present case, however, is whether or not the Ontario “rules of practice and procedure” that bind the federal Crown include the enforcement of letters rogatory against the federal Crown under s. 60(1) of the Ontario Evidence Act.
3. Do the “Rules of Practice and Procedure” Include Enforcing Letters Rogatory?
[28] While the federal Crown is clearly bound by the “rules of practice and procedure” in all proceedings in Ontario, in my view, the enforcement of letters rogatory is not included within those “rules of practice and procedure.”
[29] There is but one modern approach to the interpretation of statutes, namely, that the words of the enactment must be read: (1) in their entire context; (2) in their grammatical and ordinary sense; and (3) harmoniously with the scheme of the act, the object of the act, and the intention of Parliament. This “modern approach” to statutory construction was initially and definitively articulated by Elmer Driedger, and has been repeatedly cited with approval by the Supreme Court of Canada as the preferred approach to statutory interpretation in a host of cases across a wide and divergent range of factual and legal contexts. See: E. Driedger, Construction of Statutes (2nd ed., 1983), at p. 87; R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed., 2002) at pp. 1-18; Stoddard v. Watson, 1993 CanLII 59 (SCC), [1993] 2 S.C.R. 1069, at p. 1079; Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, 1994 CanLII 58 (SCC), [1994] 3 S.C.R. 3, at p. 17; Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 25; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 26; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 33; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at para. 27.
[30] Applying this modern approach to statutory construction, the phrase “rules of practice and procedure,” should be interpreted as referring to the court rules of practice and procedure that govern litigation conducted in any given jurisdiction. The phrase would not, however, include any provincially enacted statutory rules for evidence gathering. This is certainly the meaning of the phrase in its grammatical and ordinary sense.
[31] This view is confirmed by examination of the larger legislative context of the phrase. The “procedure” part of the Crown Liability and Proceedings Act is relatively brief, containing only sections 23-27. Section 23(1) prescribes how proceedings may be taken against the Crown. Section 23(2) provides for effective service of the document originating the proceedings. Section 24 allows generally for the defences that may be raised by the Crown in such litigation. Section 25 sets out that no judgment shall be entered against the Crown by any default of appearance or pleading without leave of the court. Section 26 states that, in proceedings against the Crown, the trial shall be by judge alone without a jury. Further, as already mentioned above, section 27, the final provision of this “procedure” part of the statute states that, except as otherwise provided, the rules of practice and procedure in the court in which proceedings are taken apply in those proceedings. In another part of the statute, s. 32 states that, except as otherwise provided, the laws relating to prescription and the limitation of actions in force in a province apply to any proceedings by or against the Crown regarding any cause of action arising in that province. Finally, and perhaps most importantly, in the part of the statute dealing with the “Application of Statutes to the Crown,” s. 33 states that, except as otherwise “expressly provided” in the Act, “nothing in the Act affects any rule of evidence or any presumption relating to the extent to which the Crown is bound by an Act of Parliament” [emphasis added].
[32] This specific statutory context suggests that the legislation was not intended to impact upon any evidentiary rule or any presumption of Crown immunity. This supports the conclusion that other provincial rules regarding the gathering of evidence for foreign courts are not part and parcel of the court rules of “practice and procedure.” Indeed, s. 33 of the statute appears to make it clear that nothing in the Act “affects any rule of evidence” (there being no provision in the Act to the contrary).
[33] Looking beyond the statute itself to the regulations made thereunder, it is noteworthy that under s. 2 of the Crown Liability and Proceedings (Provincial Court) Regulations (SOR/91-604) the term “provincial rules” is expressly defined as meaning the “rules of practice and procedure of the court.” In other words, this section of the Regulations essentially defines the “rules of practice and procedure of the court” as being synonymous with the governing “provincial rules.” This definition would come as no surprise to experienced civil litigators in Ontario as the current Ontario Rules of Civil Procedure were, prior to 1985, called the Ontario Rules of Practice and Procedure. These rules have never included, either expressly or implicitly, the provisions of the Ontario Evidence Act.
[34] This result makes sense from a policy perspective. At present it appears that Parliament is content to restrict the principle of Crown immunity so as to subject the federal Crown, even where it is not a party, to the mandatory civil discovery process, in accordance with the governing court rules of practice and procedure, in private litigation matters nation-wide. In so limiting the normal operation of Crown immunity, the legislation has made it clear that this mandatory discovery process is subject to the operation of ss. 36 to 38 of the Canada Evidence Act. These provisions permit the federal Crown to raise any objections to the disclosure and/or production of information on the basis of a “specified public interest,” or on the basis that it is “sensitive information” (ie. information relating to international relations or 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 information” (ie. information that, if disclosed to the public, could injure international relations or national defence or national security).
[35] To construe the phrase “rules of practice and procedure” as including other provincially created evidence-gathering legislation, however, would greatly expand the exposure of the federal Crown, and would significantly reduce the operation of the principle of Crown immunity. To construe the phrase as broadly as advocated by Lantheus would subject the federal Crown to the dictates of all the various provincial and territorial rules of evidence-gathering, including compelled viva voce examinations and document productions for international purposes world-wide through the enforcement of letters rogatory. I am not inclined to construe the phrase “rules of practice and procedure” with such breadth and in derogation of the usual operation of the principle of Crown immunity, in the absence of some clearer indication from Parliament that it is content to so abandon reliance upon s. 17 of the federal Interpretation Act. Had Parliament been content to so restrict the principle of Crown immunity in this international context, I would have expected Parliament to have expressly built into the legislation the same protections provided by ss. 36 to 38 of the Canada Evidence Act that have been outlined in relation to the disclosure and/or production of information in the discovery process.
4. Crown Immunity and Letters Rogatory – Re Mulroney and Coates
[36] There are, as far as I am aware, no recent authorities directly on this point. There is, however, at least one pre-Temelini authority that provides general support for the proposition that the presumption of Crown immunity prevents the enforcement of letters rogatory. This is the decision of Catzman J., as he then was, in Re Mulroney et al. and Coates et al. (1986), 1986 CanLII 2613 (ON SC), 54 O.R. (2d) 353 (H.C.J.). Significantly, his decision was affirmed by the Court of Appeal for Ontario, where MacKinnon A.C.J.O., in a brief Endorsement on behalf of the court, simply indicated that the court was “in agreement” with the reasons of Catzman J.: [1987] O.J. No. 408.
[37] In that case Mr. Coates had launched a libel action in Nova Scotia, arising from a series of articles in the Ottawa Citizen about a visit that Mr. Coates, who was then the federal Minister of National Defence, and members of his staff were reported to have made to a nightclub in West Germany. One of the articles suggested the visit may have posed a “security risk.” Ultimately, Mr. Coates resigned. During the course of this libel litigation, applications were brought before Nunn J. for the issue of letters rogatory for the discovery examination, in Ontario, of a number of non-parties who were thought to have material evidence in relation to the activities of Mr. Coates and the causes and circumstances surrounding his resignation. The proposed deponents had no notice of these applications and were neither present nor represented before Nunn J. The letters rogatory were effectively issued on the consent of the parties.
[38] While the letters rogatory were addressed to the “judicial authority” in Ottawa-Carleton, the registrar of the court issued summons for each of the proposed deponents, compelling them to appear before a special examiner. No order was actually obtained from any Ontario judge requiring the issuance of the summons. Subsequently, the Deputy Attorney General of Canada brought an application, on behalf of the proposed deponents, to declare the summonses invalid, while the newspaper sought an order enforcing the letters rogatory.
[39] On the procedural issue, Catzman J. held that the registrar had no jurisdiction to issue summonses under the Rules of Civil Procedure. Such an administrative process would, according to Catzman J., circumvent the statutory requirements for court applications to enforce extra-provincial commissions, orders, subpoenas and/or other processes found in the federal Evidence Act and the Ontario Evidence Act, and would wrongly place the burden on a deponent to challenge the propriety of his or her compelled attendance.
[40] Turning to the substantive issues, Catzman J. noted that the judicial authorities took a practical, if not literal, approach to the legislation and supported the proposition that the extra-provincial enforcement of letters rogatory was generally permissible for the gathering of trial evidence. More importantly for present purposes, however, in considering the issue of “Crown prerogative or immunity,” Catzman J. observed that neither the Nova Scotia nor the Ontario rules expressly provided that the Crown was bound to submit to such process. Moreover, Catzman J. accepted that as a matter of constitutional law any such rules would be ineffective to vitiate Crown immunity. Based upon a number of authorities [Crombie v. The King, 1922 CanLII 576 (ON CA), [1923] 2 D.L.R. 542; Thornhill v. Dartmouth Broadcasting Ltd. et al. (1981), 1981 CanLII 4778 (NS SC), 45 N.S.R. (2d) 111 (S.C.); Re The Queen and Heinrichs (1985), 1985 CanLII 1954 (ON CA), 53 O.R. (2d) 165; Gauthier v. The King (1918), 1918 CanLII 85 (SCC), 56 S.C.R. 176; A.G. Que. and Keable v. A.G. Canada et al., 1978 CanLII 23 (SCC), [1979] 1 S.C.R. 218], Catzman J. found that Crown immunity existed and could be asserted in response to the proposed examinations. Catzman J. made it clear, however, that this Crown immunity could only be relied upon where the deponent was acting in his or her capacity as a servant, agent or representative of the Crown in right of Canada.
[41] In the result, Catzman J. held that with respect to three of the proposed deponents (the Prime Minister, the Deputy Prime Minister and the Clerk of the Privy Council and Secretary to the Cabinet), the letters rogatory sought to compel evidence from deponents who were acting exclusively in their official capacity as servants, agents or representatives of the Crown in right of Canada, and the proposed examination would “inevitably trespass” upon Crown “prerogative or immunity.” Accordingly, Catzman J. declined to enforce the letters rogatory. In relation to the remaining proposed deponents, however, Catzman J. held that there was real doubt as to whether they were entitled to claim Crown immunity and whether their examinations would traverse protected Crown immunity ground. Accordingly, Catzman J. deferred the claim of Crown immunity until their examinations.
[42] I appreciate that, in Temelini v. O.P.P., at para. 58, O’Connor J.A. cited Re Mulroney and Coates, amongst other cases, and commented that such authorities, which rely upon 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 of the Crown Liability and Proceedings Act. With that caveat, however, the Re Mulroney and Coates decision of Catzman J., as expressly affirmed by the Court of Appeal for Ontario, still stands in support of 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 seeking to compel testimony and documentary evidence from a Crown agent. This decision, accordingly, supports the decision I have reached in the present case.
5. Conclusion
[43] Therefore, I conclude that the jurisdictional objection raised by AECL is well-taken. The principle of Crown immunity, as currently captured in s. 17 of the federal Interpretation Act and interpreted by the appellate court authorities, legally prevents the enforcement of the letters rogatory from the United States District Court in this case. The application by Lantheus must, accordingly, be dismissed.
[44] However, having had the benefit of argument from the parties on all of the remaining issues, namely: (1) the nature of the legal standard for the enforcement of letters rogatory; and (2) how that legal standard should be applied in the circumstances of this case, I will address each of these issues at least briefly in an effort to demonstrate how I would have resolved the application on those issues as well. It is noteworthy that Judge Cott, in his thoughtful consideration of “Canadian Law and Comity,” expressly considered, as the court making the request, many of the factors that form part of the legal standard in Canada.
III The Legal Test for the Enforcement of Letters Rogatory
A. The Relevant Statutory Provisions
[45] There are two statutory provisions, one provincial and one federal, that expressly permit the enforcement of letters rogatory from a foreign jurisdiction. Lantheus relies upon s. 60(1) of the provincial Evidence Act, which states:
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 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.
[46] The equivalent federal provision, in s. 46(1) of the Canada Evidence Act similarly provides:
If, on an application for that purpose, it is made to appear to any court or judge that any court or tribunal outside Canada, before which any civil, commercial or criminal matter is pending, is desirous of obtaining the testimony in relation to that matter of a party or witness within the jurisdiction of the first mentioned court, of the court to which the judge belongs or of the judge, the court or judge may, in its or their discretion, order the examination on oath on interrogatories, or otherwise, before any person or persons named in the order, of that party or witness accordingly, and by the same or any subsequent order may command the attendance of that party or witness for the purpose of being examined, and for the production of any writings or other documents mentioned in the order and of any other writings or documents relating to the matter in question that are in the possession or power of that party or witness.
B. The Recognized Components of the Legal Standard
[47] The parties are in general agreement that, before this court should order the enforcement of the amended letters rogatory, the court must be satisfied of that:
(1) The evidence sought has been identified with reasonable specificity;
(2) The evidence sought is relevant;
(3) The evidence sought is necessary for the foreign action and will be adduced at trial if admissible;
(4) The evidence sought is not otherwise obtainable;
(5) Production of the requested evidence is not unduly burdensome having regard to what the witnesses would be required to do, and produce, were the action to be tried in Canada; and
(6) Production of the requested evidence is not contrary to Canadian public policy.
[48] The judicial authorities clearly support the application of this recognized legal standard. See: Re Friction Division Products Inc. and E.I. Dupont de Nemours & Co. Inc. et al. (1986), 1986 CanLII 2827 (ON SC), 56 O.R. (2d) 722 (H.C.J.) at p. 732; OptiMight Communications Inc. v. Innovance Inc., 2002 CanLII 41417 (ON CA), [2002] O.J. No. 577 (C.A.) at para. 22; Presbyterian Church of Sudan v. Rybiak (2006), 2006 CanLII 32746 (ON CA), 275 D.L.R. (4th) 512 (Ont.C.A.) at para. 30; Connecticut Retirement Plans and Trust Funds v. Buchan, 2007 ONCA 462, at para. 7.
C. The General Approach of the Enforcing Ontario Court
[49] The enforcement of letters rogatory is founded upon the principle of the comity of nations. It is the mechanism by which the courts of one jurisdiction give legal effect to the laws and judicial decisions of another jurisdiction. This is done not due to any legal obligation, but as a matter of mutual deference and international respect. As Dickson J., as he then was, stated in delivering the judgment of the Supreme Court of Canada in Zingre v. The Queen et al., 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392, at pp. 400-401:
As that great jurist, U.S. Chief Justice Marshall, observed in The Schooner Exchange v. M'Faddon & Others ... the jurisdiction of a nation within its own territory is necessarily exclusive and absolute, susceptible of no limitation not imposed by itself, but common interest impels sovereigns to mutual intercourse and an interchange of good offices with each other.
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 request is directed ... or otherwise prejudicial to the sovereignty or the citizens of the latter jurisdiction.
[50] Accordingly, the exercise of discretion on an application to enforce letters rogatory requires the balancing of two broad considerations, namely, the impact of the proposed order on Canadian sovereignty and the question of whether justice requires the enforcement of the requested order. See: France v. DeHavilland Aircraft of Canada Ltd. (1991), 1991 CanLII 7180 (ON CA), 3 O.R. (3d) 705 (C.A.) at pp. 718-719; Fecht v. Deloitte & Touche (1997), 1997 CanLII 1799 (ON CA), 32 O.R. (3d) 417 (C.A.) at para. 5; Connecticut Retirement Plans and Trust Funds v. Buchan, 2007 ONCA 462, at para. 7.
[51] In considering the potential enforcement of letters rogatory, the Ontario court is not bound to accept the language of the letters rogatory as conclusive, but may go behind them to consider more precisely their purpose, giving effect to them only if they satisfy the governing legal requirements in Ontario. At the same time, the conclusions of the foreign court are entitled to considerable deference and respect. The Ontario court does not sit on appeal from the decision of the foreign court. Indeed, the Ontario court should give “full faith and credit” to the letters rogatory from a United States court unless it would be contrary to the interests of justice or infringe upon Canadian sovereignty. See: Re Westinghouse Electric Corp. and Duquesne Light Co. (1977), 1977 CanLII 1315 (ON SC), 16 O.R. (2d) 273 (H.C.J.) at pp. 286-287; Connecticut Retirement Plans and Trust Funds v. Buchan, 2007 ONCA 462, at para. 12-13; Presbyterian Church of Sudan v. Rybiak (2006), 2006 CanLII 32746 (ON CA), at para. 32; OPSEU Pension Trust Fund v. Clark et al. (2006), 2006 CanLII 20839 (ON CA), 270 D.L.R. (4th) 429 (Ont.C.A.) para. 22; AstraZeneca LP v. Wolman, 2009 CanLII 69793 (ON SC), [2009] O.J. No. 5344 (S.C.J.) at para. 17-19; Treat America Ltd. v. Nestlé Canada Ltd. (2011), 2011 ONCA 560, 340 D.L.R. (4th) 707 (Ont.C.A.) at para. 17, 19.
IV Application of the Legal Standard For the Enforcement of Letters Rogatory
A. Introduction
[52] Having examined, in the abstract, the various components of the legal standard for the enforcement of letters rogatory, I will now turn to the application of that legal standard in the factual circumstances of the present case.
B. The Requested Evidence Was Identified With Reasonable Specificity
[53] I find that the Lantheus application, including the letters rogatory, identifies the testimonial and documentary evidence sought from AECL with reasonable specificity. AECL does not contend otherwise.
[54] As Judge Cott observed, the request for documents is “tailored to the specific theories” of the water leak in the NRU reactor, including information as to the possible external causes for the leak (e.g. radiation, nitric acid formation and concentration, carbon dioxide flow rates, inadequate water drainage, defective fuel, chemicals, desiccants, or impurities), as well as the specific investigations that were conducted or the reports that were issued after the leak. Further, some of the requests for information are tailored to a particular location within, or component of, the NRU reactor. Finally, Judge Cott noted that the Latheus request also specifies that it seeks “only information that is not otherwise available in unredacted form on the AECL or Canadian Nuclear Safety Commission websites.”
[55] The specific nature of the request, however, is noteworthy. The letters rogatory seek, essentially, two types of evidence. First, the letters seek an order compelling “AECL to appear” in court in Ontario “to answer questions,” under oath or affirmation, by counsel for Lantheus, and that “the testimony of AECL” be reduced to writing. The Lantheus application clarifies this request somewhat, asking for an order that a “representative” of AECL be compelled to attend in court in Ontario to be examined under oath by counsel for Lantheus. The letters rogatory also seek, through counsel for AECL, the advance production of a vast body of technical information and documentation dealing with all of the various potential factors that may have contributed to the cause of the shutdown of the NRU nuclear reactor at Chalk River.
[56] Moreover, it became apparent, during the oral argument of the application, that Lantheus was not interested in securing any expert opinion evidence of any AECL representative who might be able to testify as to the cause of the shutdown of the NRU nuclear reactor in Chalk River. Rather, Lantheus simply wanted the production of all of the voluminous internal AECL documentation touching upon the shutdown of the NRU reactor, together with some explanation from an AECL representative as to the origins and authenticity of that documentation. It is the intention of Lanhteus to retain their own expert witnesses who, with the benefit of the documents from AECL, will provide the United States District Court with their own expert opinions as to the causes of the shutdown of the NRU reactor.
[57] In any event, the testimonial and documentary evidence sought by Lantheus from AECL through the letters rogatory was described with reasonable specificity and, accordingly, this aspect of the governing legal standard was clearly met by Lantheus.
C. The Evidence Sought is Relevant
[58] I have no hesitation concluding that the evidence sought by the letters rogatory is “relevant” to the American litigation between Lantheus and Zurich.
[59] As Judge J.L. Cott observed in his ruling issuing the amended letters rogatory, the central issue in the litigation between Lantheus and Zurich is whether the business interruption losses that Lantheus sustained as a result of the shutdown of the NRU nuclear reactor at Chalk River, and for which it seeks insurance coverage from Zurich, were caused by either “covered” or “excluded” perils. The NRU reactor had been shut down for some 15 months in 2009 and 2010 because of damage to the reactor’s vessel. During this shutdown, the NRU reactor ceased production of the medical isotopes causing the shortage of the important raw ingredient that Lantheus relies upon to manufacture its radiopharmaceutical products. To establish that its business losses resulted from “covered” perils in its suit against Zurich, Lantheus seeks evidence from AECL that will clarify both the “sequence of events leading up to the NRU reactor shutdown and the causes of the damage to its aluminum alloy reactor vessel, such as operator error, corrosion, or improper maintenance.”
[60] Given the nature of the dispute between the parties in the litigation in the United States, it is easy to see how the evidence sought through the letters rogatory would be relevant to understanding the potential causes of the NRU reactor shutdown. Therefore, this aspect of the applicable legal test is also clearly met by Lantheus.
D. The Evidence Sought is Not Necessary
[61] It is not enough, however, for the applicant to simply show that the evidence sought through the letters rogatory is relevant. The applicant must also establish that the evidence sought is necessary for the foreign action and will be adduced at trial if it is admissible.
[62] As part of his consideration of the factors touching upon the issue of international comity, Judge Cott observed that a central factor in the analysis was the “importance of the information requested.” In the result, Judge Cott concluded that the information sought by Lantheus was “vital” in that the cause of the problem that prompted AECL to shut down the NRU reactor is a significant, if not determining, factor in the ability of Lantheus to obtain insurance coverage from Zurich. As Judge Cott observed, AECL, as the operator of the NRU reactor and the party best suited to investigate that cause, is thus uniquely situated to provide the information that Lantheus needs to prove its case against Zurich.
[63] There is no gainsaying the reality that AECL was the party best suited to investigate the reasons causing the shutdown of the NRU reactor, and is really the only party in a position to provide the necessary information to Lantheus. In that sense, I have no hesitation agreeing with Judge Cott that the information surrounding the cause of the problem that led AECL to shut down the NRU reactor is “vital” to Lantheus.
[64] In determining whether or not the evidence sought by Lantheus through the letters rogatory is necessary for the foreign action and will be adduced at trial if admissible, it is important, however, to distinguish between: (1) information and documentation about the cause of the shutdown; and (2) evidence that will be adduced at trial, if admissible, about the cause of the shutdown. Throughout his consideration of this topic, Judge Cott referred to the “information” requested by Lantheus. He did not suggest, however, that this information would be adduced as evidence at the trial.
[65] Clearly, Lantheus wants all of the information and background documentation that it can obtain from AECL about the cause of the shutdown of the NRU reactor. However, as I have already mentioned, Lantheus does not want that information so that it may adduce it as evidence at the trial of this matter in the United States. 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. AECL observes, quite correctly in my view, that all Lantheus really wants from AECL in terms of evidence is something akin to an affidavit of documents explaining the origins of the background information and authenticating the documents. Of course, they already have such an affidavit in the responding materials from AECL on this application.
[66] Accordingly, I am not satisfied that the evidence requested through the letters rogatory is necessary for the American litigation, nor am I satisfied that it will be adduced at trial if it is admissible. In the result, I find that this aspect of the governing legal standard has not been met by Lantheus.
E. The Evidence Sought is Not Just Otherwise Obtainable – It Has Been Obtained
[67] I am not satisfied that the evidence sought by Lantheus through the letters rogatory is not “otherwise obtainable.” Indeed, I am satisfied that the evidence that Lantheus seeks through the letters rogatory process has already been effectively obtained by Lantheus (and Zurich).
[68] In his January 11, 2012 ruling, Judge Cott observed that, in weighing this factor of “alternative methods of securing the information,” the American courts have held that the mere fact of an alternative method for obtaining the documents does not establish that it is necessarily an “effective or efficient” method. Moreover, in considering whether there was another equally effective or efficient alternative means of securing the requested information, Judge Cott observed:
Lantheus’ efforts to obtain discovery without resort to seeking issuance of amended letters rogatory began as early as May, 2010 with counsel for Lantheus seeking to obtain information from AECL through informal requests (which were largely unsuccessful) before seeking to obtain information through Canada’ s Access to Information Act (which have led to the production of documents that are alleged to be largely nonresponsive or heavily redacted and incomplete). The most recent correspondence between the Office of the Information Commissioner of Canada - the body governing requests pursuant to the Access to Information Act - and counsel for Lantheus acknowledges AECL’s delay in responding to Lantheus’ requests under the Access to Information Act as well as that office’s inability to compel a responsive production from AECL. Accordingly, although other means exist to obtain the information Lantheus seeks, these options do not provide the “easy” access contemplated by a comity analysis that would weigh in favor of AECL.
[69] Judge Cott was quite correct in concluding that seeking the information requested in the letters rogatory informally by direct correspondence requests to AECL and/or formally through the federal Access to Information Act, R.S.C. 1985, chap. A-1, did not provide “easy” access to the information requested. However, the legal standard in Canada for the enforcement of letters rogatory is not whether there are other easier, or more timely and efficient means of securing the requested information, but whether the evidence sought is “otherwise obtainable.” This aspect of the legal standard is clearly designed to ensure that letters rogatory remain a remedy of last resort. If there are other means of obtaining the evidence sought, even more cumbersome and less efficient means, these means should be pursued before resort can be had to letters rogatory. Indeed, it is only where such other means have been employed and exhausted (and the requested evidence still not secured) that letters rogatory should be sought. At the same time, however, the evidence obtained through the alternative means must be of the “same value” as the evidence sought through the letters rogatory. See: Connecticut Retirement Plans and Trust Funds v. Buchan, 2007 ONCA 462, at para. 19; Treat America Ltd. v. Nestlé Canada Ltd., 2011 ONCA 560, at para. 24.
[70] The facts of this case demonstrate the wisdom of this approach.
[71] Lantheus began its federal Access to Information Act request to AECL in relation to information related to the May 2009 shutdown of the NRU reactor in Chalk River on April 11, 2011. Significantly, this request for information was significantly broader in scope than the request made by Lantheus through the letters rogatory. A detailed side-by-side comparison of the two requests reveals that, in the Access to Information Act request, Lantheus effectively sought all of the same information it sought subsequently through the letters rogatory request – plus a significant body of additional information and documentation. Indeed, given the identical language often used in both requests, it is apparent that the subsequent letters rogatory request is simply a revised and pared-down version of the original Access to Information Act request.
[72] Shortly after receiving this Access to Information Act request, AECL advised Lantheus that this request “would require a very large amount of work, time and resources to properly respond to the request.” Such requests are processed through the independent Access to Information and Privacy (ATIP) Office at AECL. Given the strict control that must be maintained over the disclosure of nuclear information, as dictated by the Nuclear Safety and Control Act, S.C. 1997, chap. 9, and the regulations made thereunder, requests for information must be undertaken and completed with great care and caution. Lantheus declined to reduce the size and scope of its request, but insisted that AECL respond to its original broad request for information. Subsequently, AECL sought a number of time extensions for its response to the request. On May 11, 2011, AECL produced some preliminary but voluminous materials in response to the request, some of which were heavily redacted.
[73] On August 5, 2011, Lantheus complained to the Office of the Information Commissioner of Canada about these time extensions. On December 22, 2011 the Commissioner reported back to Lantheus (and AECL) on the results of the investigation of this complaint. In summary, the Commissioner concluded: (1) the first extension of time by AECL was valid; (2) the second extension of time was technically invalid as it was made outside the time period within which to do so; and (3) AECL had devised a “work plan” for the completion of its processing of the Lantheus request by February 1, 2012 which was “reasonable.”
[74] On January 31, 2012, after the release of the ruling by Judge Cott issuing the amended letters rogatory, AECL, in response to the outstanding Access to Information Act request, provided Lantheus with 10 separate packages of documents. According to the Coordinator of the independent ATIP Office at AECL, these voluminous documents comprise “all documents in AECL’s possession that would be responsive to the amended letters rogatory” request. While Lantheus complains about the redacting and/or withholding of some of these documents, according to the Coordinator of the ATIP Office at AECL, the decision to withhold or redact any given document was based upon an independent and “proper determination of access to information principles.” Indeed, each individual redaction is assigned an explanation according to the applicable provision of the Access to Information Act. The vast majority of the redactions (over 80%) were claimed under s. 18(a) of the Access to Information Act on the basis that the record sought contained “trade secrets or financial, commercial, scientific or technical information” belonging to the Government of Canada and “has substantial value or is reasonably likely to have substantial value.” While not claimed under the Access to Information Act, according to the evidence on this application, some of the redacted documents may also contain “controlled nuclear information” or “prescribed information” under the Nuclear Safety and Control Act and the regulations made thereunder.
[75] In any event, there is no doubt that Lantheus (and Zurich) is now in possession of a great volume of highly technical information and documentation touching upon the causes of the NRU reactor shutdown. Moreover, I accept the evidence that these documents comprise “all documents in AECL’s possession that would be responsive to the amended letters rogatory.” Accordingly, not only was the information and documentation sought through the letters rogatory “otherwise obtainable,” it was, in fact, otherwise obtained. To the extent that Latheus may have any continuing issues or complaints with respect to the details of the editing and/or withholding process completed by the ATIP Office at AECL, it may exercise its statutory right to have those decisions reviewed. Indeed, it appears that Lantheus has exercised this right, effectively appealing, by way of “complaint” to the Information Commissioner about the “exemptions” claimed by AECL. Of course, if further information should have been disclosed by AECL, then it will be obtained by Lantheus through this process, or potentially by way of a further appeal to the Federal Court. See: C.B. Powell Ltd. v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332, at para. 30-33.
[76] Accordingly, Lantheus has failed to establish that the evidence sought by means of the letters rogatory is not otherwise obtainable.
F. The Production of the Evidence is Not Unduly Burdensome
[77] There is little reason to now consider the question of whether the production of the requested evidence is “unduly burdensome.” As I have already noted, the requested evidence has already been produced. Accordingly, it seems somewhat academic to consider, in hindsight, whether that effort was “unduly burdensome.” I address it briefly only for purposes of completing the necessary analysis of all aspects of the applicable legal standard.
[78] According to the evidence filed on this application, it is fair to observe that the collection of all of the voluminous information and documentation touching upon the shutdown of the NRU reactor at Chalk River, the careful review and vetting of that collected material, and the eventual disclosure of the 10 packages of information and documents to Lantheus – all done through the Access to Information Act process – was very burdensome. It must have been a significant task for the individuals assigned to see it through to completion. But, in Canada, such burdens are simply part of our accepted governmental processes given our democratic commitment, as s. 2 of the federal Access to Information Act observes, to providing a “right of access to information in records under the control of a government institution.”
[79] Notwithstanding the burdensome nature of the production of the evidence through the Access to Information Act process, it is also fair to observe that, for purposes of the potential enforcement of the letters rogatory, the production of the evidence requested would be no burden at all. Having already completed the work pursuant to the Access to Information Act request, it would be nothing to produce the evidence again through the enforcement of the letters rogatory.
[80] Accordingly, I am satisfied that, for letters rogatory purposes, the production of the requested evidence would not be “unduly burdensome.” Lantheus has met this aspect of the governing legal standard.
G. The Production of the Evidence is Not Contrary to Canadian Public Policy
[81] The final aspect of the legal standard for the enforcement of letters rogatory is that the applicant must establish that production of the requested evidence is not contrary to Canadian public policy.
[82] I see no basis in the evidence to suggest that there is any reason to refuse to enforce the letters rogatory on the basis of any perceived conflict with public policy in Canada. Indeed, given that the evidence sought by Lantheus through the letters rogatory process has already been disclosed to Lantheus through the Access to Information Act process I can only conclude that the production of the evidence was not contrary to Canadian public policy. If AECL had wanted to seriously advance its contention to the contrary, it ought to have taken steps to provide the court with some evidence in support of this argument. For example, if AECL wanted to demonstrate that some aspect of the evidence sought by Lantheus should not be produced as contrary to public policy, AECL should have taken steps to file such materials with the court, under seal, in an endeavor to establish their public policy position. Parties cannot reasonably expect that the court will simply act on their submissions, without any supporting evidence, that potential disclosure invokes public policy issues. See: Gulf Oil Corp. v. Gulf Canada Ltd., 1980 CanLII 192 (SCC), [1980] 2 S.C.R. 39, at pp. 61-62.
[83] There is, of course, another means of protecting confidential and sensitive government information from disclosure, namely, an application by the Attorney General of Canada to the Federal Court under s. 38.04 of the Canada Evidence Act. I have also been advised that the Attorney General of Canada has not intervened in this application, but rather has elected to maintain a “watching brief” over the proceedings.
[84] In any event, based upon the evidence provided on this application, I can draw no conclusion but that production of the evidence sought by way of letters rogatory is not contrary to Canadian public policy. Accordingly, Lantheus has met this aspect of the governing legal standard.
H. Conclusion
[85] In conclusion, Lantheus has failed to establish all six of the necessary criteria for the enforcement of letters rogatory. Lantheus has identified the evidence sought from AECL with reasonable specificity, has established that the evidence is relevant to the dispute between the parties in the American litigation, and has proven that the production of the evidence is neither unduly burdensome nor contrary to Canadian public policy. However, Lantheus has failed to meet two key aspects of the test. Lantheus has failed to demonstrate: (1) that the evidence sought is necessary for the foreign action and will be adduced at trial if it is admissible; and (2) that the evidence sought is not otherwise obtainable. Accordingly, the application by Lantheus cannot succeed.
[86] Stepping back and viewing the exercise of my discretion on this application more generally, as suggested by France v. DeHavilland Aircraft of Canada Ltd., at pp. 718-719, and trying to balance the two broad considerations relevant in any proposed enforcement of letters rogatory, I come to the same conclusion. In my view, the enforcement of the amended letters rogatory in the present case would negatively impact upon Canadian sovereignty as it would trench upon the long-standing principle of Crown immunity enjoyed by Crown corporations such as AECL. Moreover, given that the evidence has already been effectively provided to Lantheus (and Zurich) through the Access to Information Act process and is not necessary in any event for the conduct of the foreign action, I am not at all convinced that justice requires the enforcement of the amended letters rogatory.
V Conclusion
[87] In the result, for two alternative reasons, the application by Lantheus for the enforcement of letters rogatory under s. 60 of the Ontario Evidence Act must be dismissed. First, in light of the presumption of Crown immunity articulated in s. 17 of the federal Interpretation Act, AECL, a Crown corporation and Crown agent, cannot be compelled to produce the requested evidence to Lantheus through the mechanism of letters rogatory from the United States District Court. Second, Lantheus has failed to satisfy all aspects of the governing six-part legal standard for the enforcement of letters rogatory. An Order shall issue accordingly.
VI Costs
[88] The only remaining issue is the costs of this application. If the parties cannot agree as to the costs of this application, they may serve and file their costs outlines and written submissions in accordance with the following timetable.
[89] Counsel for AECL has until July 3, 2012 to file their costs outline and submissions, and counsel for Lantheus has until July 17, 2012 to file their costs outline and submissions. These submissions shall be no longer than five pages each, excluding the costs outlines and excluding copies of any authorities that the parties may wish to provide.
[90] To the extent that any reply submissions may be necessary, counsel for AECL has until July 24, 2012 to file such reply submissions, which shall be no longer than two pages.
Kenneth L. Campbell J.
DATE: June 19, 2012
COURT FILE NO.: CV-12-444473
DATE: 20120619
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lantheus Medical Imaging Inc.
- and -
Atomic Energy of Canada Ltd.
REASONS FOR JUDGMENT
K.L. Campbell J.
Released: June 19, 2012