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
 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.
 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. PfizerCanada 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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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