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CIVIL EVIDENCE - Letters rogatory or letters of request

Friday, October 16, 2020 @ 7:28 AM  


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Appeal by Smith from an order that gave effect to two Letters of Request from a Florida Court. The Florida Court issued the Letters of Request, for international judicial assistance, at the instance of the respondents in a proceeding commenced by the respondent Peerenboom in Florida against his neighbours, the respondent Perlmutters. Peerenboom alleged the Perlmutters defamed and conspired against him in a five-year hate mail campaign to force him from his home. The American Department of Homeland Security intercepted a package that contained anonymous letters that defamed Peerenboom. It was determined the package was sent by Smith, resident in Ontario, a former employee of Peerenboom’s corporation, who had been terminated for cause. Peerenboom commenced a separate action in Florida against Smith. The application judge ordered each party to bear their own costs.

HELD: Appeal dismissed. The application judge did not err in concluding Smith’s evidence was not otherwise obtainable. There was no palpable and overriding error in the application judge’s finding that Smith was loath to appear in the United States to be deposed or that the information was not available from other sources. The application judge did not err in concluding the letters of request did not impose an undue burden on Smith. He did not err in concluding the letters of request identified the documents sought with reasonable specificity. On the face of the pleadings in the main Florida action, the evidence requested appeared relevant to the issues in the Florida litigation. The application judge did not exceed the bounds of his power to give directions under s. 60(1) of the Evidence Act. He did not err in refusing to decline recognition of the letters of request. There was nothing to suggest the letters of request that issued from the process of the Florida court infringed on any recognized Canadian legal or moral principle. Smith was not granted leave to appeal the costs order, which was not plainly wrong or tainted by any error in principle.

Perlmutter v. Smith, [2020] O.J. No. 3867, Ontario Court of Appeal, P.D. Lauwers, D.M. Brown and I.V.B. Nordheimer JJ.A., September 11, 2020. Digest No. TLD-October122020008