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As a result of the highly integrated economies and efficient
cross-border movement between Canada and the United States (at
least prior to the 2020 pandemic), the courts in each country
frequently seek each other’s assistance to gather evidence for
use in local proceedings. The process by which a foreign court
seeks the assistance of an Ontario court involves bringing an
application to enforce Letters of Request, also known as
“Requests for International Judicial Assistance,” or more
simply “Letters Rogatory.” The Court of Appeal has made
it clear that an Ontario court should “‘give full faith
and credit’ to the orders and judgments of a U.S. court unless
it is of the view that to do so would be contrary to the interests
of justice or would infringe Canadian sovereignty”:
Ontario Service Employees Union Pension Trust Fund v.
Clark, 2006 CanLII 20839 (ON CA) at para.
22, Zingre v. R., 1981 CanLII 32 (SCC),  2 S.C.R. 392
and France (Republic) v. De Havilland Aircraft of Canada
(1991), 1991 CanLII 7180 (ON CA), 3 O.R. (3d) 705
Two recent decisions of the Court of Appeal illustrate the
considerations that will guide a court to accept or refuse to issue
an Order giving effect to Letters of Request. In one case, the
Letters of Request was enforced. In the other case, the Letters of
Request was denied.
Perlmutter v. Smith
In Perlmutter v. Smith, 2020 ONCA 570 (CanLII), the Ontario Court
of Appeal affirmed the decision of Justice Thomas Lederer giving
effect to two Letters of Request issued by a Judge in a Florida
Court at the instance of the Respondents, Harold Peerenboom, Isaac
Perlmutter, and Laura Perlmutter, in a proceeding commenced by Mr.
Peerenboom in Florida against the Perlmutters. The Letters of
Request sought evidence from an Ontario resident, David Smith, in
relation to his involvement in events being litigated in the
Mr. Peerenboom and the Perlmutters owned homes in a private
community in Florida. In 2011 they became embroiled in a dispute
over the management of the community, particularly concerning the
operation of its tennis centre. Over a prolonged period of time
thereafter, Mr. Peerenboom was subjected to a hate mail campaign
that involved hundreds of anonymous hate letters falsely accusing
him of loathsome crimes, including murder and sexual assault
against a minor, which were mailed throughout the United States and
Canada to his family, friends, neighbours, business associates,
employees and clients.
In 2013, Mr. Peerenboom commenced an action in Florida against
the Perlmutters alleging that they were orchestrating the hate-mail
campaign. The Perlmutters subsequently commenced their own
counterclaim against Mr. Peerenboom and others for attempting to
defame the Perlmutters by falsely implicating them in the hate-mail
In January 2016, the Detroit office of the Department of
Homeland Security intercepted a package which contained anonymous
letters in which the sender threatened to send letters about Mr.
Peerenboom to prisoners in various jails if the Peerenbooms did not
leave their home on Palm Beach. The letters also challenged two
executives of an executive search firm founded by Mr. Peerenboom to
convince him to sell his Florida home, failing which clients of the
firm would be advised of what a horrible person Mr. Peerenboom
The sending of the package was initiated at a United Parcel
Service (UPS) store in Toronto. The shipping label identified the
sender as Thomas Thorney. He was interviewed by the police.
However, the surveillance tape maintained by UPS revealed that the
person who had delivered the package under the name of Thomas
Thorney was, in fact, his business partner, David Smith, an Ontario
resident, who was alleged to be a former employee of the executive
search firm who was terminated for cause after 15 years. Mr.
Perlmutter was alleged to be complicit in the delivering the
letters found in the package.
In 2017, after discovering Mr. Smith’s involvement, the
Perlmutters and Mr. Peerenboom filed a joint motion in the Florida
Court for a letter of request seeking the Superior Court of
Ontario’s assistance in obtaining evidence from Mr. Smith and
Mr. Thorney. The Florida Court subsequently issued Letters of
Request to the Ontario Superior Court of Justice. Mr. Thorney
complied with the Letter of Request and was deposed in February
Conversely, Mr. Smith was not prepared to comply voluntarily
with the Letter of Request. After Justice Lederer granted the
application to enforce the Letters of Request, Mr. Smith brought an
expedited appeal which was decided by the Ontario Court of Appeal
in September 2020.
The statutory basis for an application for Requests for
Assistance is found in either the Ontario Evidence Act, section
60, or the Canada Evidence Act, section
46. The Court of Appeal confirmed that Justice Lederer had
properly outlined the applicable principles to be considered:
- The fundamental principle to be applied in considering such a
request is recognition of the
“comity of nations,” namely that one sovereign nation
voluntarily adopts or enforces the laws of another out of
deference, mutuality, and respect. As a result, a foreign request
is to be given full force and effect unless it is contrary to the
public policy or otherwise prejudicial to the sovereignty or the
citizens of the jurisdiction to which the request is directed.
- International comity dictates a liberal approach to requests
for judicial assistance, as a result of which the judge making the
request is entitled to considerable deference in the Canadian
application and the court receiving the request for assistance does
not sit in appeal from the decision of the requesting court. Orders
originating from the United States should generally be given full
faith and credit unless to do so would be contrary to the interests
of justice or infringe on Canadian sovereignty.
- A court is required to 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 an assessment of:
- whether the request would give extra-territorial authority to
foreign laws which violate relevant Canadian or provincial
- 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.
- whether the request would give extra-territorial authority to
- In order to balance the need for comity against the possible
infringement of Canadian sovereignty, Ontario courts have set out
six factors that are to be considered as “guideposts”
(not rigid preconditions) in an application before an order giving
effect to letters rogatory will be made:
(1) the evidence sought is
(2) the evidence sought is necessary
for trial and will be adduced at trial, if admissible;
(3) the evidence is not otherwise
(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.
Of overriding concern, an Ontario court must decline a foreign
court’s request if enforcing it would be contrary to public
policy or inconsistent with the laws of Ontario: Treat America
Ltd. V. Nestlé Canada Inc., 2011 ONCA 560
(CanLII), at para.
The Court of Appeal found that the Letters of Request satisfied
each of the guideposts. Mr. Smith’s evidence was clearly
relevant to the Florida proceedings and he had made it clear
(through actions, motions and appeals in Florida), that he was
unwilling to respond to the procedures of the Florida Court. The
Court found that his evidence was “not otherwise
obtainable” and the request was not overbroad given the
overall circumstances of the underlying litigation involving the
hate mail campaign.
Finally, Mr. Smith argued that the Letters of Request were
issued as a result of a flawed process in the Florida Court and
should not be enforced in Ontario. However, Justice Lederer
examined at some length the process used by the Florida Court
leading up to the issuance of the Letters of Request and no
procedural unfairness or irregularities were noted.
Ontario jurisprudence recognizes that the procedural practices
in the American state and federal district courts differ in some
respects from those in Ontario. For example, some American courts
issue letters of request in the absence of affidavit evidence and
the scope of discovery in American civil proceedings generally is
much broader than in Canada. Comity requires that inflexible rules
are not applied to such procedural differences. Instead, a Canadian
court must balance any possible infringement of Canadian
sovereignty with the natural desire to assist the courts of a
foreign land: R. v. Zingre, 1981 CanLII 32 (SCC) at p. 403.
As a result, the Court of Appeal upheld the application
judge’s order requiring the examination of David Smith upon
Glegg v. Glass
A different result was reached in Glegg v. Glass, 2020 ONCA 833,
where the Court of Appeal upheld a decision to refuse to enforce
other Letters of Request issued by a Florida Court.
Glegg involved a complex family law dispute. After an
Ontario court had determined that a child (now an adult) had
withdrawn from her father’s parental control, the father
commenced a separate action in Florida for parental alienation
against his ex-wife and her new husband. As part of that action,
the father obtained a Letter of Request which sought the assistance
of the Ontario court to obtain the production of documents from the
former lawyers for the ex-wife and their daughter.
In December 2019, Justice Paul Perell of the Ontario Superior
Court of Justice dismissed Glegg’s application to have
Letters of Request enforced for public policy reasons.
Specifically, Justice Perell found that the Letters of Request were
contrary to the protection of solicitor-client privileged
information and that the entire Florida action was contrary to the
law established by the Supreme Court of Canada in Frame v. Smith, 1987 CanLII 74
(SCC), which prohibited parental alienation actions in
On appeal, the father contended that Justice Perell had
conducted an unfair hearing and that His Honour erred in law in
concluding that enforcing the Letter of Request would offend public
The father’s argument about unfairness was focused on the
documents relied upon by Justice Perell on the original motion,
that Justice Perell had conducted his own “independent
investigation” and that Justice Perell relied on Frame without having brought it
to the attention of the parties.
No procedural unfairness
With respect to procedural unfairness, the appellate court found
that there was none. The material relied upon by Justice Perell in
rendering his decision had all been properly placed before him.
While the father complained that Justice Perell had relied upon
materials that the father self-characterized as “Surplus
Materials”, the record showed that the father had relied upon
some of those materials in his own argument and that other
“Surplus Materials” were included in the record. The
appellate court specifically noted that:
Schedule “C” to the Factum
of Lorne Glass, dated May 27, 2020, cogently demonstrates that most
of the findings of fact made by the application judge were based on
materials filed by the appellant.
Among other reasons, the appellate court also noted that the
father had not asked Justice Perell to disregard certain materials
that had been filed and that in making his order, Justice Perell
was required to understand the circumstances that led to the
issuance of the Letter of Request in the first place. This was made
necessary by the decision in Lantheus Medical Imaging Inc. v. Atomic Energy
of Canada Ltd., 2013 ONCA 264 at
para. 59, which provides that when considering to enforce a
Letter of Request, a judge must determine: “whether the
request imposes any limitation or infringement on Canadian
sovereignty and whether justice requires an order for the taking of
With respect to the reliance on the seminal case of Frame, the appellate court found
in doing so Justice Perell had not followed an unfair process. The
father had been given the opportunity after oral argument to file a
supplementary factum and did so, in which, as stated by the
appellate court at
para. 44, he clearly understood that Justice Perell
“was considering the fact that Ontario did not recognize the
cause of action asserted in the Florida Action might bar
enforcement of the Letters of Request on the grounds of public
Public policy analysis
With respect to whether Justice Perell erred in his public
policy analysis, the appellate court explained that His Honour had
found two separate public policy grounds for not enforcing the
Letters of Request. First, the Letters of Request interfered with
solicitor-client privilege and client confidentiality. Second, it
was contrary to public policy to enforce the Letters of Request in
aid of a cause of action forbidden in Ontario.
After describing the general principles that applied to the
enforcement of Letters of Request, the appellate court found that
Justice Perell’s decision to not enforce the Letters of Request
on the grounds that doing so was contrary to the protection
afforded to solicitor-client privilege was not made in error.
Justice Perell’s decision was entitled to deference because
to either grant or refuse a foreign request was a matter of
judicial discretion. A judge’s discretionary order can only be
reversed if the judge misapprehends or fails to take into account
the evidence or if the judge’s decision was clearly wrong or
was an unreasonable result.
The appellate court found no such error.
The Letters of Request in Glegg sought information from
lawyers that was either presumptively protected by solicitor-client
privilege or that fell within the protection of litigation
As well, Justice Perell noted that the information being sought
through the Letters of Request essentially could be used to
collaterally attack decisions which had been made by the Ontario
courts in the family dispute. The appellate court agreed that it
was inappropriate for the Florida Court to make rulings on
decisions made by Ontario Courts. At
para. 67, the Ontario Court of Appeal said:
For the Letters of Request to seek
evidence that the appellant plainly intends to use to attack orders
made by Ontario Courts amounts to a potential infringement on
Based on this finding, the appellate court was not required to
determine whether or not the Letters of Request was unenforceable
based on Justice Perell’s reliance on Frame.
Although the appellate court recognized that Presbytarian Church of Sudan v. Rybiak,
2006 CanLII 32746 (ON CA) required the public policy
analysis to focus on the request, not the underlying foreign
litigation, consideration of this issue should await another
In Glegg, the successful respondent lawyer was
represented by James R.G. Cook, litigation partner at Gardiner
Roberts LLP, and James Beesley, litigation associate at the firm.
They were assisted in the preparation of the written responding
factum by Stephen Thiele, partner and Director of Legal Research at
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