Treat America Ltd. v. Nestlé Canada Inc., 2011 ONCA 560

• Judge: Feldman, Blair and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: July 26, 2011
• Jurisdiction: Ontario
• Citations: 2011 ONCA 560;(2011), 282 O.A.C. 311 (CA)

Treat Am. Ltd. v. Nestlé Can. Inc. (2011), 282 O.A.C. 311 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. AU.022

Treat America Limited (applicant/respondent in appeal) v. Nestlé Canada, Inc. (respondent/appellant)

(C53415; 2011 ONCA 560)

Indexed As: Treat America Ltd. v. Nestlé Canada Inc.

Ontario Court of Appeal

Feldman, Blair and Watt, JJ.A.

August 24, 2011.

Summary:

Class action proceedings in the U.S. targeted the world wide group of companies of which the defendant was the Canadian subsidiary. The U.S. claims against the defendant had been dismissed on jurisdictional grounds. In the U.S. court, the plaintiff obtained a letter of request (LOR) asking for assistance from the Ontario Superior Court in requiring the defendant to produce certain documents and a representative to be examined regarding those documents. The plaintiff applied for an order to enforce the LOR in Ontario.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 1252, allowed the application. The defendant appealed.

The Ontario Court of Appeal dismissed the appeal.

Practice - Topic 3748

Evidence - Letters rogatory (or letters of request) - When evidence will be taken or produced in jurisdiction receiving request - Class action proceedings in the U.S. targeted the world wide group of companies of which the defendant was the Canadian subsidiary - The U.S. claims against the defendant had been dismissed on jurisdictional grounds - In the U.S. court, the plaintiff obtained a letter of request (LOR) asking for assistance from the Ontario Superior Court in requiring the defendant to produce certain documents and a representative to be examined regarding those documents - Campbell, J., allowed the plaintiff's application for an order to enforce the LOR - The Ontario Court of Appeal dismissed the defendant's appeal - Campbell, J., had considered and applied all of the pertinent principles, had not accepted the LOR at face value, but had requested and received clarification from the U.S. court, and had independently determined that it was appropriate as a matter of comity to honour the LOR - The law was clear that the U.S. court's decision was entitled to considerable deference and that the court receiving the request for assistance did not sit in appeal from the decision of the requesting court - The LOR had been issued by a foreign court of competent jurisdiction in relation to a civil proceeding in that jurisdiction - The targeted witnesses were within the jurisdiction of the Ontario courts - The record amply supported Campbell, J.'s, conclusion that the necessary criteria for enforcement had been met.

Cases Noticed:

Friction Division Products Inc. v. E.I. Du Pont de Nemours & Co. (No. 2) (1986), 56 O.R.(2d) 722 (H.C.), refd to. [para. 12].

France (Republic) v. De Havilland Aircraft of Canada Ltd. et al. (1991), 49 O.A.C. 283; 3 O.R.(3d) 705 (C.A.), refd to. [para. 12].

Fecht v. Deloitte & Touche (1997), 97 O.A.C. 241; 32 O.R.(3d) 417 (C.A.), refd to. [para. 12].

Ontario Public Service Employees Union Pension Trust Fund v. Clark et al. (2006), 212 O.A.C. 286 (C.A.), refd to. [para. 12].

Presbyterian Church of Sudan et al. v. Rybiak et al. (2006), 215 O.A.C. 140; 275 D.L.R.(4th) 512 (C.A.), dist. [para. 12].

R. v. Zingre, Wuest and Reiser, [1981] 2 S.C.R. 392; 38 N.R. 272; 10 Man.R.(2d) 62, refd to. [para. 17].

Connecticut Retirement Plans and Trust Funds v. Buchan et al. (2007), 225 O.A.C. 106 (C.A.), refd to. [para. 19].

Counsel:

Robert E. Kwinter and Daniel J. Stern, for the appellant, Nestlé Canada, Inc.;

Darryl T. Mann, for the respondent, Treat America Limited.

This appeal was heard on July 26, 2011, by Feldman, Blair and Watt, JJ.A., of the Ontario Court of Appeal. On August 24, 2011, Blair, J.A., delivered the following judgment for the court.