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You may have to testify in a foreign court…Right here in Quebec!

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Civil and commercial litigation

The courts of Quebec have jurisdiction in the province of Quebec (this includes the Supreme Court of Canada, the Federal Court of Canada and the Tax Court of Canada, which each have divisions presiding in the province of Quebec and ruling on cases arising in and from the province of Quebec).

If you were to ask your lawyer if you are subject to an order by a foreign court to testify, the answer might be both “Yes” and “No."

To consider a concrete example, suppose you receive a summons to testify in a civil lawsuit being conducted in Germany between two German companies. If you were already travelling in Germany, then a German court could certainly compel you to testify before the court and give all relevant evidence. So you would be obliged to testify.

Imagine, however, if a subpoena arrived for you at your house in Repentigny ordering you to testify in Germany before a German court in a lawsuit regarding two German companies. Such an order would be, as such, completely unenforceable in Quebec. The German court would have no jurisdiction over you to force you to testify before it and no power to do so.

So the answer may seem simple. Yes, you would be subject to the German court if you were in Germany and No, the German court would have no power over you if you were still in Quebec.

However, the answer is not exactly that simple. Courts in the civilized world believe in a principle known as “comity” or “international courtesy.” In other words, countries and courts believe that they should offer to courts of other countries the courtesy of attempting to assist them to carry out the search for evidence and the collection of testimony with respect to residents in their jurisdiction for use within court cases in other provinces or states or countries.

The usual way this works is as follows. For example, the German court would issue a document known as Letters Rogatory in which it would request the assistance of the Quebec court. This assistance would take the form of a request to the Quebec court to appoint a person, known most often as a “commissioner,” or another such person who is authorized to administer oaths and to collect testimony. A Quebec court would also be requested to order the person residing or domiciled within the jurisdiction of Quebec to appear before the commissioner and testify or give evidence, such that the collected evidence could be thereafter sent to the German court to be used as evidence or testimony in the case before the German court.

This kind of motion for the execution of Letters Rogatory issued by a foreign state or court is not very common in our courts, because it may be of the expensive. However, it is possible under our law and is not considered as an abnormal or unwelcome procedure. The person residing in Quebec is still not subject to the jurisdiction of the German court. In fact, the reason that he is obliged to testify is because of the order of the Quebec court and the issuance, for example, of a subpoena or summons to testify issued in conformity with the laws of Quebec.

The request issued by the foreign court will not be blindly or automatically granted. It must still be justified to a Quebec judge, who will examine the request, make sure it is not violating our laws in any way or infringing upon public policy or public order, and respects various other criteria.

Therefore, in the legal sense, you are not subject to the jurisdiction of a foreign court. In the practical sense, our court can make you subject to the order of a foreign court. It does so as a matter of international courtesy because, if in the future one of our courts or other public body wishes to obtain the testimony of someone living in a foreign country, the fact that it offered its co-operation bodes well for the reception of co-operation in return. It is in the interest of a Quebec court to cooperate with a foreign court so that in the future the Quebec court will receive reciprocal co-operation from a foreign court. The reverse is also true. The foreign court will offer its co-operation because, at some future date, it may request the co-operation of a Quebec court to obtain the testimony of a Quebec resident.

Franco Tamburro, Attorney-at-Law
Alepin Gauthier Avocats Inc.

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