Experimental Testing in Litigation

April 7, 2014 | David Reive

The Federal Court has recently issued a practice direction relating to experimental testing for litigation. This practice direction resulted from arguments made in several recent cases to exclude testimony relating to experimental testing where the opposite party was not provided the opportunity to observe the testing.

In one such case (AbbVie Corporation v. Janssen Inc.), Justice Hughes admitted testing conducted without notice to the opposing party, stating as follows:

[63] Janssen made a motion to be dealt with at trial to exclude the evidence as to this testing conducted by third parties at the request of AbbVie. In particular, Janssen moved to exclude the evidence of Ms. Jin and Dr. Hughes.
[64] Unlike the practice in the United Kingdom as described in the “White Book”, Civil Procedure, Volume 2, 2013, Sweet & Maxwell, London at page 730, there is, as of yet, no Federal Courts of Canada Rule specifically directed to testing conducted for the purposes of trial. In Omark Industries (1960) Ltd v Gouger Saw Chain Co, (1965) 1 Ex C R 457 at page 516, Justice Noel discussed a “salutary” rule to the effect that an opposite party should be given notice of and an opportunity to attend at such experiments. He did, however, also say that an ex parte test may be admissible, subject to weight, particularly where, in his case the opposite party could readily have conducted the same test. Most recently Justice O’Reilly of this Court in Apotex Inc. v. Pfizer Canada Inc., 2013 FC 493 at paragraph 40,held that where a party had ample notice as to the testing and ample knowledge as to what would be done, a party cannot be held to say that the testing results are inadmissible because the party did not attend.

The practice direction states that where a party intends to establish any fact in issue by experimental testing, advance notice must be given to the other parties as to:

• the facts to be proven by such testing;

• the nature of the experimental procedure to be performed;

• when and where the adverse parties’ counsel and representative(s) can attend to watch the experiment(s); and

• when and in what format the data and test results from such experiment(s) will be shared with the adverse parties.

If the parties are unable to agree on the above points, the court will convene a case management conference to decide any points in dispute.

The practice notice indicates that unless the required notice has been provided, evidence of experiments cannot be adduced at trial without leave of the court. While at present this practice notice applies specifically to actions for infringement or validity of a patent, it is likely that the court will require this advance notice whenever experiments are to be conducted.

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