Protocol Concerning Court-To-Court Communications In Cross Border Cases

The Commercial List has approved the adoption of the Guidelines Applicable to Court-to-Court Communications in Cross Border Cases ("Guidelines"), prepared by the American Law Institute, for matters on the Commercial List. The Guidelines have already been applied to international insolvency cases on the Commercial List. It is expected that these Guidelines will facilitate co-operative procedures for insolvency proceedings and other types of commercial disputes involving cross-border proceedings, where court-to-court communications might facilitate in harmonizing proceedings to help ensure consistent results and increase efficiency.

The Guidelines will only be applied in specific cases, following adequate notice to the parties.

Although the Guidelines were prepared for court-to-court communications as between Canada and the United States, the Commercial List endorses their application in court-to-court communications between Canada and other countries, and as between Ontario and the other provinces and territories.

Counsel and/or the parties should ensure that any issues concerning the confidentiality of materials to be transmitted by the Commercial List to another jurisdiction, including the deemed undertaking rule, Rule 30.1 of the Rules of Civil Procedure, be addressed when consideration is given by the court to the transmittal of evidentiary or written materials from the Commercial List to another court. The Guidelines are to apply only in a manner that is consistent with the Rules of Civil Procedure and the practice in this jurisdiction.

The Commercial List confirms, as noted in the Guidelines, that the Guidelines are not meant to be static, but are meant to be adapted an modified to fit the circumstances of individual cases, and to change and evolve as experience is gained from working with them.

A copy of the Guidelines may also be obtained from the Commercial List Office at 393 University Avenue, 10th Floor, Toronto, Ontario M5G 1E6, Telephone 416-327-5043, Fax 416-327-6228.

April 4, 2004