Date: 20031222
Docket: T-568-03
Citation: 2003 FC 1511
Ottawa, Ontario, this 22nd day of December, 2003
Present: The Honourable Madam Justice Heneghan
BETWEEN:
MERCK & CO., INC. and
MERCK FROSST CANADA & CO.
Applicants
and
THE MINISTER OF HEALTH AND APOTEX INC.
Respondents
REASONS FOR ORDER AND ORDER
[1] Apotex Inc. ("Apotex") appeals from the Order, dated October 23, 2003, of the Prothonotary which provides as follows:
IT IS ORDERED THAT:
(1) Apotex shall have 10 days from the date of this order to serve and file a notice electing upon which five of the affidavits of Dr. Allen W. Rey, Dr. Juliet Compston, Dr. Eli Shefter, Dr. Michael J. Cima, Dr. Peter J. Stang, Dr. Roger Newton, Dr. Robert Allan McClelland, Dr. Graham Russell or Dr. Robert S. Langer it will rely.
(2) The affidavits mentioned in paragraph (1) above and not included in this election shall be struck.
(3) The time within which cross-examinations are to be conducted shall run from the date of filing of Apotex's notice of election.
[2] The Order resulted from a motion brought by Merck & Co., Inc. and Merck Frosst Canada & Co. ("Merck") to strike out all or part of 10 of the 14 affidavits filed by Apotex in this proceeding. The proceeding is brought pursuant to the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, as amended (the "Regulations").
[3] Following service of a Notice of Allegation ("NOA") by Apotex on or about February 24, 2003, Merck issued its Notice of Application on or about April 10, 2003. Merck delivered its evidence, by way of affidavit, on May 30, 2003. Apotex submitted its affidavit evidence between July 21 and July 25, 2003. On or about August 14, 2003, Merck served its Notice of Motion seeking to strike several of Apotex's affidavits, both in whole or in part.
[4] One of the grounds advanced by Merck upon its Motion to Strike was the complaint that Apotex had filed more than five expert affidavits allegedly contrary to section 7 of the Canada Evidence Act R.S.C. 1985, c. C-5, (the "Canada Evidence Act"). Section 7 provides as follows:
| Where, in any trial or other proceeding, criminal or civil, it is intended by the prosecution or the defence, or by any party, to examine as witnesses professional or other experts entitled according to the law or practice to give opinion evidence, not more than five of such witnesses may be called on either side without the leave of the court or judge or person presiding.
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Lorsque, dans un procès ou autre procédure pénale ou civile, le poursuivant ou la défense, ou toute autre partie, se propose d'interroger comme témoins des experts professionnels ou autres autorisés par la loi ou la pratique à rendre des témoignages d'opinion, il ne peut être appelé plus de cinq de ces témoins de chaque côté sans la permission du tribunal, du juge ou de la personne qui préside.
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[5] In the Reasons for Order, the Prothonotary purported to distinguish earlier decisions of this Court in which section 7 was considered. In Eli Lilly & Co. v. Novopharm Ltd. (1997), 73 C.P.R. (3d) 371 (F.C.T.D.) Justice Reed interpreted the limitation to the number of experts who could address a single issue, not as a limitation applicable to the case as a whole.
[6] More recently, in an unreported decision dated September 4, 2003 in GlaxoSmithKline Inc. et al. v. Apotex et al. (T-876-02), Justice Pinard in dealing with a motion to strike affidavits in similar proceedings undertaken pursuant to the Regulations, refused to do so and relied on the earlier decision in Eli Lilly, supra. He dismissed the motion to strike as being premature, relying on the jurisprudence of this Court which makes it clear that interlocutory motions to strike affidavits should not be brought and the question of admissibility of evidence should be left to the judge hearing the application.
[7] Further, and of particular relevance to this appeal in relation to the question of the number of expert witnesses, the learned judge referred to the decision in Eli Lilly, supra and said at paragraph 4 as follows:
In any event, it is not clear and obvious to me that the evidence served and filed by the respondent Apotex Inc. comprises, with respect to any single issue, more than five expert affidavits (see, for example, Eli Lilly and Co. v. Novopharm Ltd. (1997), 73 C.P.R. (3d) 371 at 411-12 (F.C.T.D.); affirmed 10 C.P.R. (4th) 10 (F.C.A.)).
[8] Apotex raises several arguments about errors committed by the Prothonotary in allowing Merck's motion to strike a number of its affidavits. It submits that the Prothonotary erred in law by failing to follow the clear jurisprudence of this Court both with respect to striking affidavits on an interlocutory basis and to interpreting section 7 as meaning that a party to a proceeding is limited to five expert witnesses in total, as opposed to five expert witnesses per issue. Further, Apotex argues that the Prothonotary erred in finding that the limitation applies to judicial review applications, rather than to a trial or a proceeding in which witnesses are called and provide viva voce evidence.
[9] As well, Apotex submits that the Prothonotary erred in law by failing to follow and apply the decision of the Supreme Court of Canada in [1958] S.C.R. 377">Fagnan v. Ure Estate, [1958] S.C.R. 377 where the Supreme Court of Canada, in considering a provision of the Alberta Evidence Act, R.S.A. 1955, c.102, concluded that the limitation operated upon the number of expert witnesses per issue rather than in relation to the proceeding as a whole.
[10] Merck takes the position that the Prothonotary correctly distinguished the decisions of this Court in Eli Lilly, supra and GlaxoSmithKline, supra, saying that neither decision squarely addressed the issue of the section 7 limitation. It also argues that the decision of the Supreme Court of Canada in [1958] S.C.R. 377">Fagnan, supra is inapplicable here since the language of the statutory provision there in issue was different from section 7 of the Canada Evidence Act. As well, it submits that there is no basis to exclude judicial review proceedings from the ambit of section 7 and says that the Prothonotary correctly concluded that this proceeding is subject to the limitation of section 7.
[11] Both parties agree that since the Order involves the interpretation of a statutory provision, the applicable standard of review is correctness and that, pursuant to Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C.A. 425 (F.C.A.), I am to exercise my discretion on a de novo basis.
[12] In my opinion, the Prothonotary erred in law by ignoring and failing to follow the jurisprudence of this Court in Eli Lilly, supra and GlaxoSmithKline, supra. I refer to the words of Associate Senior Prothonotary Giles in Flexi-Coil Ltd. v. Riteway Manufacturing Ltd. (1989), 28 C.P.R. (3d) 256 (F.C.T.D.) at para 2; aff'd. (1990), 29 C.P.R. (3d) 515 (F.C.T.D.).
The first issue raised was that of stare decisis, that is to say, whether or not a prothonotary is bound by a decision of a judge of the Trial Division. There is perhaps a valid question because any decision of a prothonotary could have been made by a trial judge and an order of a prothonotary is to be considered an order of the Court in stated circumstances. Argument was therefore directed to the question of the binding effect of a decision of one judge on another of the same level. In my view, the foundation of the rule of law is a consistency in the law which can only be achieved if there is a consistency in the decisions made, no matter what judge or other judicial officer makes them. This principle is sufficient to render most persuasive the decisions of a judge at the same level. Where the decision cited as authority is one of a judge to whom an appeal could be made, a further consideration, namely practicality, applies. It would be most impractical to render a decision in the knowledge that it would be reversed on appeal. Therefore, without question, the decision of a judge of the Trial Division (to which an appeal may be made from the decision of a prothonotary), should, in all cases, be followed by a prothonotary.
[13] There was no good reason why the Prothonotary should not have followed and applied the jurisprudence of this Court that has interpreted section 7 as a limitation upon the total number of experts per issue, rather than for the case as a whole. My finding in this regard is sufficient to dispose of this appeal and to grant it.
[14] It is unnecessary for me to address the other arguments advanced by Apotex. However, I observe that there may be merit in the argument advanced about the inapplicability of section 7 of the Canada Evidence Act to judicial review proceedings where the evidence is entered by way of affidavits, in the absence of a person who is called for "examination" as a "witness". That question remains for resolution on another occasion, supported by further argument and jurisprudence, for example dealing with the meaning of "witness" (see Bell v. Klein (No. 1), [1955] S.C.R. 309">[1955] S.C.R. 309 at 317) and "examine".
[15] In the result, the appeal is allowed with costs to Apotex.
ORDER
The appeal is allowed, with costs to Apotex.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-568-03
STYLE OF CAUSE: MERCK & CO. INC. ET AL v. APOTEX INC. AND THE MINISTER OF HEALTH
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 17, 2003
REASONS FOR ORDER AND
ORDER: Heneghan J.
DATED: December 22, 2003
APPEARANCES:
SOLICITORS OF RECORD:
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Ogilvy Renault
Toronto, Ontario
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FOR THE APPLICANT
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Goodmans
Toronto, Ontario
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FOR THE RESPONDENT
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