Date: 20040130
Docket: T-1878-02
Citation: 2004 FC 166
Ottawa, Ontario, Friday, this 30th day of January 2004
PRESENT: MADAM PROTHONOTARY MIREILLE TABIB
BETWEEN:
AB HASSLE, ASTRAZENECA AB and
ASTRAZENECA CANADA INC.
Applicants
- and -
APOTEX INC. and THE MINISTER OF HEALTH
Respondents
REASONS FOR ORDER AND ORDER
TABIB P.
[1] I am seized of a motion by the Respondent, Apotex Inc. (hereinafter "Apotex"), for an order striking the affidavit of Daphne C. Ripley and striking parts of the affidavit Peder Oxhammar on the basis that they contain hearsay evidence.
[2] The principles to be applied in this matter are those applied in Canadian Tire Corp. v. P.S. Partsource Inc. (2001), 11 C.P.R. 4th 386 (F.C.A.), (hereinafter "Partsource"), as recently approved in AstraZeneca Canada Inc. v. Apotex Inc. [2003] F.C.J. No. 1909 (F.C.A.), to the effect that on a motion to strike evidence on the basis of hearsay, the matter is best left to the trier of fact unless it is clear that the evidence is hearsay, that the hearsay goes to a controversial issue, and that the other party would be prejudiced by leaving the matter for disposition by the trier of fact.
[3] Apotex has suggested that it was up to the Applicants to show that the hearsay does not go to a controversial issue or that prejudice would not be caused to Apotex by leaving the determination to the hearing on the merits.
[4] I appreciate that, in Partsource, it was held that once it is shown that the evidence constitutes hearsay, the burden then shifts on the party tendering the evidence to establish the existence of the twin requirements of necessity and reliability as an exemption to the hearsay rule. However, I do not see how it flows from this that it would also be up to the party tendering the evidence to show that it is not controversial and that it would not cause prejudice to the other party for the issue to be left to the trier of fact. The rule is that determinations as to admissibility of evidence are best left to the trier of fact. An exception can be made when the three conditions identified in Partsource are met. It is clearly up to the party requesting the Court to exercise its discretion to depart from the rule and to make a determination on the admissibility of evidence on an interlocutory motion to establish the existence of these conditions.
[5] The affidavit of Daphne Ripley only seeks to introduce correspondence received from an American publishing house, giving the publication date of a book entitled "Chemical Stability of Pharmaceuticals: Handbook for Pharmacists". This book is in evidence in the proceeding and was introduced by Apotex itself. The evidence as to the publication date would appear to be hearsay. The Applicants have not argued or led evidence going to necessity or reliability, but they do not have to at this stage. If Apotex cannot establish that the evidence is controversial or that it would be prejudiced if the matter were not decided now, the matter will be deferred to the trier of fact, and the Applicants will be able to make there any argument they wish as to hearsay or the exceptions to the rule. For the purpose of this motion, however, I will take it that the first condition of the test in Partsource is satisfied.
[6] As to the condition of controversy, Apotex relies on a statement in the affidavit of H.B. Radomski to the effect that "the publication date of this book is a controversial issue in these proceedings". I am not satisfied by that evidence. "Controversial" refers to an issue on which there is a debate. It implies that each side has a clearly held and contradictory position on that issue. At the hearing, counsel for Apotex could not state that any evidence had been led or any position taken by Apotex as to the date of publication of this book. While a fact might be relevant, important or even crucial to the determination of the issues between the parties, it is not controversial if it is not actively disputed by the other party. I hasten to add, if clarification was needed, that lack of controversy does not go to the admissibility of the evidence but simply to whether the issue of admissibility should be decided as an interlocutory matter or left to the hearing judge.
[7] Nor am I satisfied that leaving the determination of the admissibility of that evidence to the judge on the merits would be prejudicial to Apotex. The only prejudice alleged by Apotex flows from the fact that it would be effectively deprived of its right to cross-examine on this evidence. The loss of the right to cross-examine is the defining feature of hearsay evidence. If that was a sufficient prejudice, in and of itself, to meet the third requirement of the test set out in Partsource, then that requirement might as well not have been stated, as there would be prejudice every time hearsay evidence was tendered. Here, Apotex has not sought to establish any other form of prejudice, such as that it was unable without cross-examination to independently verify the hearsay statement, to bring contradictory evidence if the statements were controversial, or why, in the circumstances, it would be prejudicial for it to be put to that exercise pending a determination on the merits. In the circumstances, no such prejudice even appears likely.
[8] The comments made in relation to the Ripley affidavit as to the controversial nature of the evidence and the prejudice to Apotex of leaving the determination to the trier of fact can similarly be made for the affidavit of Mr. Oxhammar. In addition, it is clear from the wording of the Oxhammar affidavit that the documents attached thereto as exhibits "A" and "B" are not tendered in evidence for the truth of their contents. The Applicants in their written representations have clearly stipulated that they do not rely upon the truth of the content of these exhibits. Apotex has therefore not established that the evidence is hearsay.
[9] In the course of the hearing, Apotex raised for the first time the argument that if exhibits "A" and "B" of the affidavit of Peder Oxhammar were not tendered as evidence of the truth of their content, then they are irrelevant and should be struck. Not only is the record before me insufficient to support this conclusion, but Apotex has utterly failed to allege or establish that it would suffer prejudice if the issue of relevance was left to the decision of the trier of fact.
ORDER
IT IS ORDERED THAT:
1. Apotex's motion to strike the affidavits of Daphne C. Ripley and Peder Oxhammer is dismissed, costs in the cause.
"Mireille Tabib"
Prothonotary
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1878-02
STYLE OF CAUSE: AB Hassle, Astrazeneca AB and Astrazeneca
Canada Inc.
v.
Apotex Inc. and The Minister of Health
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 26, 2004
REASONS FOR Judgement : Madam Prothonotary Mireille Tabib
APPEARANCES:
Scott Beezer FOR APPLICANTS
J. Sheldon Hamilton
Andrew R. Brodkin FOR RESPONDENT
Daniel G. Cohen Apotex Inc.
SOLICITORS OF RECORD:
Smart & Biggar FOR APPLICANTS
Barristers & Solicitors
Toronto, Ontario
Goodmans LLP FOR RESPONDENT
Barristers & Solicitors Apotex Inc.
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada The Minister of Health