In 2011, purchasers of polyurethane foam launched series of class action lawsuits against manufacturers in various United States district courts. Plaintiffs alleged that manufacturers conspired to fix price of foam, contrary to Sherman Act, which was American equivalent of Competition Act (Can.). Various actions were consolidated in United States District Court for Northern District of Ohio. Respondents resided in Ontario. They were non-parties in United States. Applicant said that they had evidence relevant to consolidated action. District Court issued letters rogatory to take evidence and compel production of documents from respondents. Respondents had worked for company that was alleged to have participated in price-fixing scheme. Applicant applied to Ontario court for orders to enforce letters rogatory. Application granted in part. One respondent was not working for company at time period specified in consolidated action. Application was dismissed as against him. Requested order did not infringe on Canada’s sovereignty, and it was in interests of justice that letters rogatory be enforced. In addition, principle of judicial comity militated in favour of granting order. Respondent’s concerns could be met by fashioning order that would protect their right against self-incrimination. Proposed order should contain conditions that remaining respondents testified with protections of ss. 7 and 13 of Canadian Charter of Rights and Freedoms, Canada Evidence Act, and Evidence Act (Ont.). Before finalizing order, Commissioner of Competition was to be permitted to make submissions.
Neuwirth v. DaCosta (Jan. 22, 2014, Ont. S.C.J., Goldstein J., File No. CV-13-494560) 237 A.C.W.S. (3d) 634.