Admissibility of Expert Evidence Must Be Raised at Trial

Pfizer Canada Inc v Apotex Inc / azithromycin (NOC) 2014 FCA 54 Gauthier JA: Stratas, Webb JJA aff’g 2013 FC 493 O'Reilly J
              ZITHROMAX / azithromycin / 1,314,876

This is an appeal from O’Reilly J’s finding of fact (blogged here) that Apotex’s generic product would not infringe Pfizer’s 876 patent. Pfizer attempted to turn this factual issue into a question of law by arguing that evidence of one of Apotex’s experts was not admissible under the test for the admissibility of novel scientific evidence set out in R v J-LJ, 2000 SCC 51. The FCA rejected this argument, holding first, that in this case the question was not one of the admissibility of novel scientific evidence, but merely the interpretation of recognized tests, so the R v J-LJ analysis was not applicable [6]; and secondly, objections of this sort must be raised at trial [7], in order to allow consideration of the evidence necessary to properly apply the R v J-LJ test [9].

Prizer also argued that O’Reilly J’s made a palpable and overriding error in giving weight to the disputed evidence [12]. The FCA readily dismissed this argument on the usual deferential standard applicable to factual findings.