Date: 20100311
Docket: T-1636-08
Citation: 2010 FC 276
Ottawa, Ontario, March 11, 2010
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
ASTRAZENECA CANADA INC., ASTRAZENECA AB
and
SHIONOGI SEIYAKU KABUSHIKI KAISHA
Applicants
and
NOVOPHARM LIMITED and
THE MINISTER OF HEALTH
Respondents
REASONS FOR ORDER AND ORDER
[1]
By
Motion filed February 12, 2010, Counsel for the Applicants requests an order
that video-recordings of cross-examinations of expert witnesses in this
proceeding be filed as a supplemental volume to the Application Record. While
Counsel for Novopharm did not object to the videotaping of the
cross-examinations, objection is made to the filing of the video-recordings as
requested.
[2]
The
issue of the filing of the video-recordings was raised before me during the
pre-hearing conference conducted on January 27, 2010. At that time I said that
I would not allow the filing of a video-recording if the purpose for doing so
is to address the credibility of the witness concerned. In the representations
on the present Motion, Counsel for the Applicants accepts this statement
(para.12), but, nevertheless, makes the filing request for the following
reasons (paras. 10 and 11):
First, the Court will be able
to watch the witnesses’ recorded answers. While obviously not a substitute for
viva voce evidence, a recording is materially superior to a paper transcript
and will assist the Court in understanding the scientific evidence. The
tracking of the transcript to the images will further assist the Court in
understanding the evidence.
Second, the Court will be
better positioned to assign weight to the evidence. By way of example, a party
may argue that a witness has made an admission that throws into doubt some
portion of their affidavit evidence. On viewing the answer, however, the Court
may assign less weight to the answer on the basis that the witness did not
understand or fully consider the question. Conversely, the recording may show
that the witness gave a deliberate and considered answer and fully understood
the question asked.
[3]
In
my opinion, neither of the reasons provided warrant a deviation from the
existing practice in a summary NOC proceeding: the application is determined on
a written record. With respect to the reasons provided for deviating from the
existing practice I have two responses: understanding the evidence comes from
the capable argument of Counsel and not from seeing stated what is available to
be read; and the process of weighing the evidence is based on the content of
the evidence read in full context, and not on the manner in which the evidence might
have been obtained.
ORDER
THIS COURT ORDERS THAT:
1.
The
Motion is denied; and
2.
Costs
on the Motion are awarded to the Respondent Novopharm Limited.
“Douglas
R. Campbell”
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