Date: 20071023
Docket: T-1836-06
Citation: 2007
FC 1095
BETWEEN:
ALTANA PHARMA INC. and
ALTANA PHARMA AG
Applicants
and
NOVOPHARM LIMITED and
THE MINISTER OF HEALTH
Respondents
REASONS FOR ORDER
PHELAN J.
I. INTRODUCTION
[1]
This is an
appeal and cross-appeal of a prothonotary’s order in which the central issue is
whether a party is permitted without leave of the Court to have 5 expert
witnesses “per issue” in a case or 5 experts “per case” under s. 7 of
the Canada Evidence Act, R.S.C. 1985, c. C-5 (CEA). The proceedings in
question are an “NOC proceeding”, a proceeding under the Patented Medicines
(Notice of Compliance) Regulations, S.O.R./93-133 (NOC Regulations). This
case requires a review of the Court’s jurisprudence on s. 7 of the CEA.
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7. 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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7. 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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[2]
For the
reasons outlined, the Court has concluded that s. 7 permits each side in a
trial or other proceeding only 5 experts without leave of the Court to increase
the number of experts to be called or where evidence may be relied upon.
II. BACKGROUND
[3]
On
September 5, 2006, Novopharm Limited (Novopharm) filed a purported Notice of
Allegation (NOA) on Altana Pharma Inc. and Altana Pharma AG (Altana). The
patents in question are Canadian Patent Nos. 2,089,748 and 2,092,694.
[4]
As part of
the NOC proceedings, Altana served Novopharm with affidavits from 13 expert
witnesses and two fact witnesses. Altana did not seek leave of the Court
pursuant to s. 7 of the CEA prior to filing these expert affidavits.
[5]
Novopharm
moved before the learned Prothonotary for an order that Altana comply with the 5
witnesses per case rule which it argues is imposed by s. 7 of the CEA. Altana
denied that it was in breach of s. 7 but moved, by cross-motion, for leave to
file all the expert evidence tendered, if it was found that leave was required.
[6]
The learned
Prothonotary agreed with the Respondent Novopharm’s argument that s. 7 should
be interpreted as limiting each party to 5 expert witnesses, regardless of the
number of issues requiring expert evidence. However, the learned Prothonotary
considered herself bound by the decision in Merck & Co. v. Canada (Minister of Health), 2003 FC 1511 (Merck 2003)
which she understood to have concluded that s. 7 limits a party/side to 5
experts per issue unless leave of the Court is secured. She succinctly put the
issue forward as:
I am therefore clearly bound to interpret
section 7 as applicable to issues in the case, and the Respondent will have to
take its argument on that matter to a Judge of this Court or to the Court of
Appeal.
[7]
Having
reached that legal conclusion in principle in favour of Altana, the learned
Prothonotary went on to consider how many issues were in the case and whether
the “5 expert witness per issue” rule should be applied to each issue. The learned
Prothonotary concluded, in dismissing Altana’s motion for leave to admit more
than 5 expert witnesses per issue, that Altana could not rely on more than 5
expert affidavits of the 11 expert affidavits filed and then having accepted
that two specific affidavits out of the 11 affidavits were necessary, ordered
Altana to choose within five days which 3 further affidavits would be relied
upon.
[8]
In the
Merck 2003 decision to which the learned Prothonotary referred, the Court held
that the same Prothonotary had erred in law by ignoring and failing to follow
the jurisprudence of this Court in Eli Lilly & Co. v. Novopharm Ltd.
(1997), 73 C.P.R. (3d) 371 (Eli Lilly 1997), a decision of Reed J., and GlaxoSmithKline
Inc. v. Apotex (Sept. 4, 2003) Ottawa T-867-02 (F.C.) (GlaxoSmith 2003), a decision
of Pinard J. The Eli Lilly 1997 decision was upheld on appeal without any
reference to the s. 7 issue. Therefore, the only substantive decisions on this
matter are those of this Court.
[9]
Both sides
have appealed the learned Prothonotary’s decision; Novopharm to restrict Altana
to 5 experts per case; Altana to secure leave to rely on more than 5 experts
per issue.
III. LEGAL ANALYSIS
[10]
As
indicated earlier, the central issue is not really whether the learned
Prothonotary is bound by precedent of this Court - it is obvious that she is.
The central issue is whether this Court has settled its interpretation of s. 7
of the CEA and, if so, whether it should be reviewed.
[11]
Regarding
the standard of review, as held in Merck & Co. v. Apotex Inc., 2003
FCA 488, this Court will review discretionary decisions of a prothonotary de
novo where:
(a) the question raised
in the motion is vital to the final issue of the case; or
(b) the
order is clearly wrong, in the sense that the exercise of discretion by the
prothonotary was based upon a wrong principle or upon a misapprehension of the
facts.
On the issue of error of law, the standard, as held in Housen
v. Nikolaisen, [2002] 2 S.C.R. 235, is correctness.
[12]
The learned
Prothonotary’s decision involved both an issue of law and the exercise of
discretion. The basis of the exercise of discretion was coloured by what the learned
Prothonotary considered, quite reasonably, the principle from Merck 2003 that
each side was entitled to 5 experts per issue. The manner in which she reached
her conclusion as to which witnesses could be relied upon was influenced by her
understanding of the operation of s. 7.
[13]
Therefore,
the Court will, to the extent necessary in this matter, consider the learned
Prothonotary’s decision de novo and the principle of law at issue on the
standard of correctness.
A. Court’s Jurisprudence
[14]
The legal
issue in this appeal is rooted in Justice Reed’s decision in Eli Lilly 1997.
However, the decision to which the learned Prothonotary referred was that of
Merck 2003. Justice Heneghan took it as settled jurisprudence on the basis of
Eli Lilly 1997 and GlaxoSmith 2003 that this Court had determined that each
party was entitled as of right to rely on 5 experts per issue in each case.
Having accepted that premise, the Court’s attention was more particularly
focused on the ability of a prothonotary to depart from presumed jurisprudence
rather than an in-depth review of that jurisprudence.
[15]
In
GlaxoSmith 2003, an unreported decision of Justice Pinard decided three months
before Merck 2003, the relief requested was an order striking Apotex’s
affidavits that exceeded the number allowed in s. 7 of the CEA. The motion was
dismissed for the following reasons:
·
the
applicants had unreasonably delayed in bringing this motion;
·
the motion
was premature as the matter of striking the affidavits should have been left to
the judge hearing the main application;
·
NOC
proceedings are to be decided expeditiously; and
·
“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 experts.” The Court then cited Eli Lilly 1997 at pp. 411-412.
[16]
There may
have been an assumption in GlaxoSmith 2003 that the rule was 5 experts per
issue, but there was no specific conclusion on this point. As will be
discussed, the reference to that part of the Eli Lilly 2003 decision is not a
clear unequivocal ruling on the point.
[17]
In Eli
Lilly 1997, Justice Reed was dealing with an action to stop the marketing of
the generic version of PROZAC. The action was grounded in passing-off.
Importantly, the decision involved three cases of a single plaintiff and a
separate defendant in each case. The result is that the decision had one
plaintiff and three defendants. The issue of how many “sides” there were is
critical to an understanding of Justice Reed’s s. 7 ruling.
[18]
In her
decision, Justice Reed returned to comment on two decisions made in the course
of the trial, one of which related to s. 7. In discussing the complexity of
hearing three actions on common evidence, Justice Reed went on to comment on
what she thought was, at that time, the state of the law on s. 7 – that s. 7
referred only to expert opinions (presumably discounting other types of opinion
evidence) and that it was limited to 5 witnesses per subject matter or factual
issue in a case, not 5 witnesses in total.
[19]
The
salient passage is:
Section 7 of the Canada
Evidence Act provides:
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. [Emphasis added.]
In this case three actions
were set down for hearing concurrently, on common evidence. They were not
consolidated although Mr. Radomski as counsel for both Apotex and Nu-Pharm
essentially proceeded with respect to his clients in a consolidated fashion.
Section 7 has been interpreted as referring to expert opinion evidence
only and as limiting the evidence to five witnesses per subject matter or
factual issue in a case, not five witnesses in total (Buttrum v. Udell,
[1925] 3 D.L.R. 45 (Ont. S.C.), Re Scamen and Canadian Northern Railway Co.
(1912), 6 D.L.R. 142 (Alta. S.C.), Fagnan v. Ure, [1958] S.C.R. 377, 13
D.L.R. (2d) 273, Hamilton v. Brusnyk (1960), 28 D.L.R. (2d) 600 (Alta.
S.C.), R. v. Morin, [1991] O.J. No. 2528 (QL) [summarized 16 W.C.B.
(2d) 416], B.C. Pea Growers Ltd. v. City of Portage La Prairie (1963),
43 D.L.R. (2d) 713 (Man. Q.B.)).
[20]
In
reviewing the interpretation of s. 7, Justice Reed relied on Buttrum, Scamen,
Fagnan, Hamilton, Morin and the Pea Growers
decision at the lower level. Justice Hughes, in his case management decision in
Eli Lilly & Company and Eli Lilly Canada Inc. v. Apotex Inc., 2007
FC 1041 (Eli Lilly 2007), pointed out that in the cases cited by Justice Reed,
she obviously did not have the Manitoba Court of Appeal’s decision in B.C.
Pea Growers Ltd. v. City of Portage La Prairie (1964), 49 D.L.R. (2d) 91,
which effectively referred to the trial judgment referred to by Justice Reed.
[21]
With the
greatest respect, these six cases do not support the understanding Justice Reed
had as to the state of the interpretation of s. 7. At least one of them had
been overturned on appeal – a matter, which if it had been brought to Justice
Reed’s attention, would have influenced her view as to the state of the law.
[22]
In Buttrum,
the Ontario Court of Appeal considered s. 12 of the Ontario Evidence Act and held that it restricted the number
of experts to 3 witnesses per party, regardless of the number of issues
requiring expert evidence. Section 12 of the Ontario Evidence Act, as considered in that case, is similar
to s. 7 of the CEA.
12. Where it is intended by a party
to examine as witnesses persons entitled, according to the law or practice, to
give opinion evidence, not more than three of such witnesses may be called upon
either side without the leave of the judge or other person presiding.
[23]
The Buttrum
decision held that the provision limited a party, without leave, to 3 expert witnesses
in total rather than per issue.
[24]
In Scamen
and in Fagnan, the Alberta Supreme Court and the Supreme Court of
Canada, respectively, were called upon to construe section 10 of the Alberta
Evidence Act, 1910, 2nd Sess., C. 3. That section provided:
10. Where it is intended by a party
to examine as witnesses persons entitled according to the law or practice to
give opinion evidence not more than three of such witnesses may be called upon
either side.
[25]
The
critical distinction in the wording of the Alberta legislation and that of the
federal and Ontario legislation is the absence of
any discretion in the courts to permit a greater number of witnesses. In the
face of a clearly impractical and unworkable provision which would create a
“mischief”, the courts gave an interpretation which avoided the mischief and
the unworkable rigidity of the provision.
[26]
In Hamilton, the Alberta Supreme Court
could only follow Scamen and Fagnan.
[27]
The Alberta legislation stands in sharp
contrast to that of Manitoba, Ontario and Canada. The courts in Manitoba and Ontario have recognized that Fagnan
gave the Alberta legislation a broad
interpretation because there was no provision for leave of the court to file
additional expert evidence. This was recognized by Farley J. in Bank of
America Canada v. Mutual Trust (1998), 39 O.R. (3d) 134 at pages 137-138:
In my view the approach in B.C. Pea
and Buttrum is preferable to that of Scamen, supra, as
interpreted by Fagnan. It is clear that in the latter two cases the
courts found it necessary to give the section of the Alberta Evidence Act
broad interpretation because there was no provision for leave in that section.
Had the Alberta legislation incorporated the
possibility of leave for more experts if the necessity were demonstrated, then
there would not have been any problem in otherwise protecting the interests of
justice. In fact just as Fagnan was being decided in the Supreme Court
of Canada, the Alberta statute was amended to
include the following word:
… without leave of the court which
shall be applied for before the examination of any such witness.
(Emphasis added)
This amendment cleared up the problem of
future cases in Alberta; however it would not be appropriate to import the
pre-amendment remedy from Alberta to Ontario as the Ontario legislation always had the
leave protection. Scamen and Fagnan should be relegated to the
curiosity cupboard as obsolete cases which were required to correct an
historical oddity of the then Alberta legislation.
[28]
Lastly, in
Morin, the Crown sought “leave to call more than five expert witnesses
on the retrial”. The Court stated that the Crown drew attention to Fagnan
but there is no discussion of the case or its application to s. 7 of the CEA.
The Court simply held that, on the basis of the evidence and submissions, it
was satisfied that there was a reasonable basis for calling the extra
witnesses, and leave was granted.
[29]
Therefore,
Morin is of no precedential value in respect of s. 7 as there was no
interpretation of the provision.
[30]
Of the six
decisions referred to by Justice Reed, three relate to the very different
provision of the Alberta statute, one case makes no interpretation of s. 7 and
two (being Buttrum and the Pea Growers appeal decision) are
decided opposite to the understanding Justice Reed had. Her understanding
would no doubt have been different if she had had the Court of Appeal’s
judgment in Pea Growers.
[31]
A further
consideration of the Eli Lilly 1997 decision is that the number of witnesses
“per issue” versus “per case” was not the central focus of what was an
interlocutory decision made in the course of the trial. The following quote
discloses Justice Reed’s substantive concern about the meaning of “sides” as
applied to “parties”. She even describes the results of an interpretation of
the right to 5 experts per issue as a “rather unreasonable result”.
Prior to counsel for the
defendants calling some of their expert witnesses, counsel for the plaintiffs
raised a concern that it appeared as though the defendants were planning on
calling more than five witnesses per "side" on a factual issue (particularly
the criticism of Dr. Heeler's survey evidence). An edited version of the
reasons I gave orally with respect to this concern was placed on the record. In
summary those reasons were that section 7 does not deal with the situation in
which separate actions are being heard concurrently; no jurisprudence dealing
with the meaning of "side" could be found; if the word
"side" is interpreted as synonymous with party, this leads to the
rather unreasonable result that the three defendants could call fifteen
witnesses and the two plaintiffs, being separate parties to each of the three
actions, could call thirty expert witnesses on each factual issue.
Ideally, if anyone had thought of it at the time, this matter should have been
dealt with when the application to set the three cases down for concurrent
hearing was made.
[32]
The whole
issue of the number of witnesses was ultimately decided on the basis of the
exercise of discretion.
[33]
In my
view, Justice Reed proceeded on the assumption that the weight of the authority
tended toward “5 experts per factual issue” and then resolved the issue, not
through a studied analysis of the law or ringing endorsement of the principle,
but through the exercise of discretion in a pragmatic manner in the middle of a
trial.
[34]
It is from
this somewhat qualified endorsement of the “5 experts per issue” principle that
this Court has proceeded to date.
B. Comity
[35]
The
parties argued whether this Court is bound by the prior decisions emanating
from Justice Reed’s decision. Altana’s position is that judicial comity compels
this Court to continue to apply the existing interpretation of s. 7.
[36]
Justice
Granger in Holmes v. Jarrett (1993), 68 O.R. (3d) 667 at 673-677 (Gen.
Div.), conducted a thorough analysis of the application of stare decisis
in regard to judgments of the same court. He concluded that he would only go
against a judgment of another judge of his own court if:
(a) subsequent
decisions have affected the validity of the impugned judgment;
(b) it is
considered that some binding authority in case law or some relevant statute was
not considered; and
(c) the
judgment was unconsidered, a nisi prius judgment given in circumstances
familiar with all trial judges, where the exigencies of the trial require an
immediate decision without opportunity to fully consult authority.
[37]
For
reasons discussed in the previous section, the Eli Lilly 1997 decision had
elements of points (a) and (c) because the Court of Appeal in Pea Growers
was not referred to the learned judge and the interpretation at issue was given
in the midst of a trial where the particular issue was not that which is
squarely before this Court.
[38]
While not
strictly binding authority falling within Justice Granger’s item (b) situation
that would justify not following a court’s earlier decision, there has been
more recent comment from the Supreme Court which outlines the mischief to which
s. 7 was directed and which likely would have influenced Justice Reed (as she
recognized at page 412 the unreasonable result if each party could have the
maximum number of experts for each issue).
[39]
In R.
v. D.D., [2000] 2 S.C.R. 275, a case dealing in part with expert evidence,
the Supreme Court at paragraph 56 pinpointed the problem of the proliferation
of expert opinions:
… expert evidence is time-consuming
and expensive. Modern litigation has introduced a proliferation of expert
opinions of questionable value. The significance of the costs to the parties
and the resulting strain upon judicial resources cannot be overstated. When the
door to the admission of expert evidence is opened too widely, a trial has the
tendency to degenerate into “a contest of experts with the trier of fact acting
as referee in deciding which expert to accept”.
[40]
Lastly, on
the binding nature of the Eli Lilly 1997 decision, Justice Décary in R. v.
Phoenix Assurance Co., [1976] 2 F.C. 649 at para. 17 (QL) (T.D.), held that
the principle of stare decisis does not apply between judges of the same
court:
There can be no stare decisis
between judges of the same court. There may be a question of collegiality in a
case where the facts are identical, or at least are similar to the extent that
a decision cannot be ignored.
[41]
The
decision in Cooper v. Molsons Bank, [1896] 26 S.C.R. 611, relied on by
Altana, can be distinguished because its pronouncement relates to courts of
co-ordinate jurisdiction, not judges of the same court. The more modern
approach is that set forth by Justice Décary.
[42]
In my
view, the decision in Eli Lilly 1997 did not, on its own terms, go as far as
has been assumed in later judgments of this Court. Further, the learned justice
was not aware that one of the key authorities on which she relied for her
understanding of the general state of the law had been overturned. Other courts
have later taken a different view of s. 7 than that assumed by Justice Reed and
the Supreme Court has since more clearly articulated a concern with expert
evidence that she only briefly touched upon.
[43]
Therefore,
it is appropriate for this Court to consider s. 7 more directly in the light of
recent authority.
C. Section 7 - Interpretation
[44]
Although
the s. 7 interpretation issues have most recently arisen in this Court in the
context of NOC proceedings or other intellectual property cases, its
application is much more broadly based. The problems inherent in the NOC
process cannot drive the interpretation, although they underscore the mischief
to which s. 7 was directed. Other cases of civil and criminal nature can have
just as difficult and multi-faceted issues and sub-issues for which opinion
evidence seems to be ripe.
[45]
The
starting point for the analysis of s. 7 is, as with all statutes, s. 12 of the Interpretation
Act:
|
12.
Every enactment is deemed remedial, and shall be given such fair, large and
liberal construction and interpretation as best ensures the attainment of its
objects.
|
12. Tout texte est censé apporter une
solution de droit et s’interprète de la manière la plus équitable et la plus
large qui soit compatible avec la réalisation de son objet.
|
[46]
Taking a
purposive approach to the provision, it is evident that s. 7 was intended to
limit the number of experts. The first critical limitation is that it operates
with respect to trials or other proceedings; the second critical limitation is
the absolute numerical restriction of 5.
[47]
Therefore,
if the purpose of the section is to restrict the number of expert witnesses,
the courts should not generally give the provision an interpretation that
broadens this limitation.
[48]
The Alberta
Supreme Court in Scamen had to depart from this usual rule because of
the rigidity of the Alberta Evidence Act which left
the Court no discretion to increase the number of experts irrespective of the
circumstances. Farley J. said as much in Bank of America Canada, supra:
Had the Alberta legislation incorporated the possibility
of leave for more experts if the necessity were demonstrated, then there would
not have been any problem in otherwise protecting the interests of justice. In
fact, just as Fagnan was being decided in the Supreme Court of Canada,
the Alberta statute was amended to
include the following words: ‘… without leave of the court which shall be
applied for before the examination of any such witnesses’.
[49]
The CEA,
like the comparable legislation in such provinces as Manitoba and Ontario, gives the Court the discretion to
increase the number of experts. It would be inconsistent with the overall
intent of the provision to expand the restriction by reading in the words “per
issue” and to also give the Court the discretion to expand the number of
experts as justice requires.
[50]
This
purposive interpretation is buttressed by a plain meaning analysis. There is no
reference in the section to “issues”. The language is stark in that regard when
stipulating 5 experts per party/side per case especially when one reads the
section with the relevant aspects isolated:
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.
[51]
In
addition, it is useful to compare other similar provisions, as this suggests a
common problem across Canada. In Pea Growers, supra,
at pages 97-98, the Manitoba Court of Appeal compared the Alberta and Manitoba provisions limiting the
number of expert witnesses noting that the former (the Alberta provision):
had no provision to call more than three
expert witnesses [“upon either side”] while the latter makes provision for the
calling of more than three experts with leave of the Court. One was a very
rigid enactment to prevent the abuse of the use of experts, but left no way out
to call more than three when justice required it.
[52]
The
Ontario Court of Appeal in Buttrum v. Udell (1925), 57 O.L.R. 97 (C.A.), considered a similar provision and
held at para. 10:
… it is much
better that the number of such witnesses called during a trial should be
limited to three on each side, and such others as the Court may on application
allow, than that the number of these witnesses should be limited only by the
number of issues of fact that may actually arise in the course of a trial, or
that counsel can with some show of reason argue will arise or have arisen
during the trial. If the latter interpretation be given the statute … the
statute would … either become a dead letter or a new source of trouble,
expense, and delay.
[53]
Only New Brunswick explicitly limits the use of
experts by issue. It is instructive that it did so by specific wording rather
than reading in those words to the statute as had to be done in Alberta.
[54]
The joint
Federal/Provincial Task Force on Uniform Rules of Evidence also considered this
common problem. It noted at page 113 of its Report that, without statutory
limits on expert witnesses, there is no way for a judge in a criminal
proceeding to prevent unnecessary expert evidence, and in a civil case, costs
are an impractical penalty if both parties make excessive use of expert
witnesses.
[55]
As the
purpose of s. 7 is, at least in part, to prevent abuse, trouble, expense and
delay caused by excessive use of expert evidence, it is more consistent with
that purpose to interpret the restriction to apply to the case as a whole
rather than to each and every issue which may arise. In fact, an interpretation
in favour of “by issue” creates the very mischief which the provision was
intended to cure.
[56]
This Court
has, on a number of occasions, expressed concern for the number and variety of
expert reports. The concern is captured in the following from Eli Lilly
Canada Inc. v. Novopharm Ltd., 2007 FC 596, at para. 7:
It must be pointed out how difficult it
is for a court in NOC proceedings to assimilate masses of purportedly expert
opinions, predominantly on scientific matters, all in written form, often
comprising several volumes. Judges are human, not computers.
[57]
Similar
problems would exist in other cases, such as complex commercial or tort actions
involving issues of finance, accounting, medical or other technical/scientific evidence.
It can be even more difficult in the area of social sciences.
[58]
While NOC
proceedings can be complex, Altana’s submission, that s. 7 of the CEA could not
have contemplated the purpose and complexity of proceedings under the NOC
Regulations, cannot be sustained. There is a presumption that regulatory
provisions are meant to work together, not only with their enabling legislation
but with other Acts and other regulations as well.
[59]
In the case
at bar, because the limit was applied to each issue as the learned Prothonotary
concluded she was bound to do, Altana was allowed to use nine expert witnesses
who filed 10 affidavits. If Novopharm matched Altana affidavit for
affidavit as it would be entitled to do as of right, the hearing judge would be
required to review a total of twenty affidavits in chief, without even
contemplating reply affidavits. This is a substantial and onerous amount of
evidence and severely taxes judicial resources.
[60]
In summary,
applying the Mischief Rule, if s. 7 is interpreted as applying per issue, the
cure is almost as bad as the disease.
[61]
There is
no conflict between the complexity of NOC proceedings and the purpose of s. 7.
The critical aspect of s. 7 is the discretion to permit more experts than the
initial limit set. Parliament has provided a mechanism to deal with complex
cases and provided a balancing mechanism between the intended limit on experts
in the case generally and the needs of a specific case.
[62]
As
recognized in Pea Growers, s. 7 is, unlike the original Alberta
provision discussed in Fagnan, not a very rigid enactment leaving no way
to call more than the stipulated number of experts where justice requires. The
needs and complexities of the particular case are dealt with through the
exercise of discretion.
[63]
Therefore,
in my opinion, taking into account the remedial nature of the provision, its
plain wording, its purpose and the mischief to be cured (or caused by an
alternative interpretation), s. 7 should be read as limiting each side to 5
experts in the case subject to the Court’s leave to vary that number.
D Applicability
to Judicial Review/NOC Proceeding
[64]
As to the
argument that the s. 7 restrictions do not apply to judicial review/NOC
proceedings, I find no merit in this submission.
[65]
Section 7
refers specifically to a “trial or other proceeding”. A judicial review
and an NOC matter is by regulation and the Rules of this Court (Rule 300) a
proceeding. On the plain words of the statute, s. 7 applies to judicial reviews
in general and to NOC proceedings specifically.
[66]
There is
no policy reason why s. 7 should not apply to judicial reviews/NOC proceedings.
Except for differences of form of proof, they have all the attributes of a
trial and have all of the problems of control of the number of experts which
Parliament intended to address.
[67]
While the
time for seeking leave to adduce more expert evidence should not necessarily be
fixed as it is a matter of Court discretion, timeliness is essential. One would
have thought that as soon as the expert reports are filed (and perhaps even before
when it is known that more expert evidence is required), the necessary motion
should, as a general rule, be brought. This is not a matter for determination
in this case.
IV. CONCLUSION
[68]
Having
determined that the learned Prothonotary’s decision should be set aside, the
matter, to the extent that the parties wish to pursue the matter of increased
expert witnesses, will no doubt be referred back to the learned Prothonotary
who has greater familiarity with the case and is charged with case management.
[69]
An order
will issue giving effect to these reasons.
“Michael
L. Phelan”
Ottawa, Ontario, October 23, 2007
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