This is an appeal from a decision of the Court allowing Apotex to claim compensation pursuant to section 8 of the NOC Regulations. The quantum is to be determined in a further proceeding.
Pfizer made arguments relating to the admissibility of the evidence on the issue of infringement provided by one of Apotex’ experts. The Court of Appeal refused to make a finding on this issue after considering the arguments made by Pfizer relating to the decision by the Supreme Court of Canada (SCC) in R.v.J.-L.J.,2000 SCC 51. The Court of Appeal noted that this SCC decision addresses threshold reliability of the evidence and Apotex’ expert was interpreting the results of known tests. The Court of Appeal further noted that Pfizer did not object at the trial level to the admissibility of the evidence and that, while it is open in some cases for an appellate court to consider the admissibility of evidence for the first time, this was not such a case. The Court of Appeal then considered Pfizer’s argument that the Court made a palpable and overriding error in giving weight to this expert evidence, and dismissed this argument and thus the appeal.