Federal Court of Canada on the Number of Expert Witnesses

On October 23, 2007, the Federal Court released its decision in Altana Pharma Inc v Canada (Health) 2007 FC 1095, setting limits on the number of expert witnesses permitted in a case without prior approval from the Court. The decision arose in the context of proceedings under the Patented Medicines (Notice of Compliance) Regulations (Regulations). Altana Pharma Inc and Altana Pharma AG (Altana) had commenced a proceeding under the Regulations seeking an Order prohibiting the Minister of Health from issuing a Notice of Compliance (NOC) to Novopharm Limited (Novopharm) for pantoprazole sodium tablets until the expiry of Canadian Patent Nos 2,089,748 and 2,092,694. In support of its case, Altana served Novopharm with affidavits from 13 experts witnesses. However, section 7 of the Canada Evidence Act (CEA) provides that: "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." Altana did not seek leave of the Court prior to filing its 13 expert affidavits, whereupon Novopharm brought a motion for an Order requiring Altana to comply with section 7 of the CEA. The central issue was the proper interpretation of section 7. Recently, there had been a question whether a party is permitted, without leave of the Court, to have five witnesses "per issue" in a case or, alternatively, five experts "per case". The Court reviewed the jurisprudence dealing with limitations on the number of experts in various statutes in Canada and concluded that section 7 permits each side in a trial or other proceeding only five experts unless leave of the Court is provided to increase the number of experts to be called. The burden lies on the party seeking to increase the number of expert witnesses it intends to call in the case to seek and obtain the approval of the Court to do so. Although the decision was made in the context of NOC proceedings and similar intellectual property cases in the Federal Court, it is possible that the conclusion will have broader application. For the full decision visit: http://decisions.fct-cf.gc.ca/en/2007/2007fc1095/2007fc1095.html For another discussion of section 7 of the CEA, see also a recent decision from the same Court, Eli Lilly and Company v Apotex Inc 2007 FC 1041 at: http://decisions.fct-cf.gc.ca/en/2007/2007fc1041/2007fc1041.html Summary by: Nick Wong