Ottawa, Ontario, this 27th day of January, 2006
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
PFIZER LIMITED
- and -
APOTEX INC.
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is a motion by Pfizer Canada Inc. and Pfizer Limited (the "applicants") for an order setting aside the order of Prothonotary Milczynski dated October 5, 2005. The Prothonotary denied the applicants' motion for an order requiring expert witnesses of Apotex Inc. ("Apotex") to answer certain questions which they refused to answer on their cross-examination.
[2] The questions which the experts refused to answer are:
Dr. McClelland
How much have you received from Apotex? (applicants' record pages 130 to 131)
Dr. Langer
What are you charging in this case? (applicants' record page 182)
And how much have you earned from Apotex for the work you have done for them? (applicants' record page 182)
[3] The Prothonotary ruled that the expert witnesses did not have to answer these questions basically because she did not believe the questions to be relevant.
Issue
[4] Did the Prothonotary err in ruling that the questions need not be answered?
Standard of Review
[5] The Federal Court of Appeal in Merck & Co., Inc. v. Apotex Inc., 2003 FCA 488 at paragraph 19 defined the standard of review to be applied when reviewing orders of a prothonotary:
The test would now read: "Discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless (a) the questions raised in the motion are vital to the final issue of the case, or (b) the orders are 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."
[6] In my view, the questions raised in this motion do not raise questions vital to the final issue of the case.
[7] It is now necessary that I determine whether the order issued by the Prothonotary was "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" (see Merck & Co. Inc. v. Apotex Inc., supra, at paragraph 19). If it was not clearly wrong, her decision should not be set aside on appeal.
[8] As noted earlier in these reasons, the questions in issue in this appeal relate to the amount charged by an expert witness for his opinion and the total remuneration paid to the expert by the respondent. There was evidence from Dr. McClelland that he had received a substantial amount of money in 2003 and 2004 for his work as an expert for Apotex. He also indicated that he had not done much work for Apotex in 2005 and was unlikely to be doing much more work in 2005. Counsel for Apotex indicated that Dr. Langer received substantial fees in this case "in the thousands of dollars." There was this evidence before the Prothonotary that the experts were earning significant fees for their expert opinions and testimony.
[9] I am of the view that the Prothonotary was not clearly wrong as she did not exercise her discretion based upon a wrong principle or based upon a misapprehension of the facts. The Prothonotary ruled that the exact amount of the fees received by the experts was not relevant.
[10] I am of the opinion that most expert witnesses charge a fee for their reports and/or testimony. If an expert is an excellent expert witness, then there is nothing unusual about him or her charging a higher fee than an expert with lesser credentials. The mere fact that an expert witness charges more for his or her services does not in itself make the testimony less credible. I agree that should a witness make most of his or her income from services as an expert witness, this is a factor to consider when assessing competing expert testimony. It is not necessary, in order to make this assessment, to know the exact amounts charged for their services.
[11] In addition, the applicants in this case are at liberty to call their own competing expert testimony for consideration by the judge hearing the matter. If, for example, a highly paid expert of the respondent offered opinion evidence not generally accepted in the industry, the applicants' experts can rebut this testimony.
[12] I have considered the decision of R. v. Lindsay, [2005] O.J. No. 2870 (S.C.J.) (QL), but there is no indication in that case that there was any objection to the expert witness being asked the amount he was paid for his involvement as an expert witness.
[13] The applicants also suggested that the Prothonotary should have allowed the trial Judge to make the determination as to whether the expert witnesses should have answered the questions in issue. I do not agree. The Prothonotary is given authority to deal with issues of relevance and the Prothonotary's decision is also subject to appeal.
[14] The motion (appeal) of the applicants is dismissed, with costs to the respondent, Apotex Inc.
ORDER
[15] IT IS ORDERED that the motion (appeal) of the applicants is dismissed, with costs to the respondent, Apotex Inc.
Ottawa, Ontario
January 27, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1255-04
STYLE OF CAUSE: PFIZER CANADA INC. et al
- and -
THE MINISTER OF HEALTH et al
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 21, 2005
REASONS FOR ORDER AND ORDER OF: O'KEEFE J.
APPEARANCES:
| Sheila Block Andrew Bernstein |
|
| David Lederman John Simpson |
|
SOLICITORS OF RECORD:
| Torys LLP Toronto, Ontario |
|
| Goodmans LLP Toronto, Ontario |
FOR THE RESPONDENT, APOTEX INC. |
| John H. Sims, Q.C. Deputy Attorney General of Canada |
THE MINISTER OF HEALTH |