Plaintiff commenced action in United States District Court (“USDC”) against company based in Ontario seeking to recover some $30 million allegedly owed for satellite and telecommunications services provided pursuant to various agreements, including one entered March 2009. Defendant filed counterclaim alleging agreement should be rescinded for misrepresentation. At plaintiff’s request, and with defendant’s consent, USDC issued letters rogatory to compel defendant’s former in-house counsel, chief financial officer and chief operating officer to attend to be examined under oath in Toronto. Plaintiff then brought application under s. 60 of Evidence Act for orders giving effect to letters rogatory in relation to counsel and CFO, but not COO. CFO consented. Counsel objected on basis she had no relevant evidence, having ceased employment with defendant in December 2008, evidence sought could be obtained from CFO and COO, giving evidence would violate her obligations of confidentiality and attending examination would be burdensome to her as sole practitioner. Application dismissed. Plaintiff had not established counsel had any relevant evidence that could not be obtained from CFO and COO. There was no question COO had specific knowledge of broader range of matters than counsel. Why plaintiff chose not to steps to examine him was mystery. In those circumstances, requiring counsel to attend examination would impose unfair burden upon her. Application should be dismissed without prejudice to plaintiff’s right to bring further application after examinations of CFO and COO if necessary.
Intelsat USA Sales LLC v. Hyde (Sep. 16, 2015, Ont. S.C.J., M.D. Faieta J., File No. CV-15-53057) 258 A.C.W.S. (3d) 52.