Judgments

Decision Information

Merck & Co., Inc. v. Apotex Inc. (T.D.)

Collection	Judgments
Date	1998-04-06
Report citation	[1998] 3 F.C. 400
File numbers	T-2408-91
Subjects	Constitutional Law - Charter of Rights - Criminal Process Evidence

Decision Content

T-2408-91

Merck & Co., Inc. and Merck Frosst Canada Inc. (Plaintiffs)

Apotex Inc. (Defendant)

Indexed as: Merck & Co., Inc. v. Apotex Inc. (T.D.)

Trial Division, MacKay J."Toronto, February 23, 24, 25, 26; Ottawa, April 6, 1998.

Evidence — Motion to admit as evidence in Federal Court show cause proceedings true copies of documents filed in judicial review application in Ontario Court — Plaintiffs intending to use documents as evidence of assertions contained therein — Relying on Canada Evidence Act ss. 23, 24, 30 (CEA) — Evidence of assertions made in affidavits or cross-examination in Ontario Court proceedings precluded from admission by hearsay rule, unless within exception to rule — CEA facilitating admission of documentary evidence meeting requirements for admission under some exception to hearsay rule — Not providing exceptions, except to extent permitting admission without formal proof of authenticity of documents otherwise required at common law — Ontario Court records not questioned as to authenticity but said to be hearsay and irrelevant — CEA not providing evidence admissible regardless of relevance — Plaintiffs not establishing relevance of evidence in Ontario Court proceedings — Testimony from prior judicial proceedings admissible in later proceedings involving same parties, issues — Ontario Court proceedings involving different issues, parties — Contempt show cause proceedings quasi-criminal — Charter, ss. 11, 13, protecting against self-incrimination, applied — Affidavits admissible to question credibility if CEO testifying, but CEO not compellable in light of s. 11(c) — Affidavits in Ontario Court proceeding of witness already testifying herein, inadmissible as would constitute unfair process i.e. other parties deprived of opportunity to cross-examine on matters dealt with therein.

Constitutional law — Charter of Rights — Criminal process — Motion to admit as evidence in Federal Court show cause proceedings true copies of documents in judicial review application in Ontario Court — Plaintiffs intending to use such evidence, particularly affidavits, cross-examination thereon, as part of evidence in chief — Charter, ss. 11(c), 13 protecting against self-incrimination, applied — Contempt show cause proceeding quasi-criminal as fine, imprisonment could be imposed — Affidavits, cross-examination thereon admissible to question credibility if defendant's CEO choosing to testify, but not compellable in light of s. 11(c) — S. 13 precluding admission of prior testimony as evidence in later proceedings, limited by case law to oral testimony, excluding from scope, documents or real evidence from prior proceedings — But where affidavits, cross-examination from prior judicial review application that of person subsequently ordered in other proceedings to show cause why should not be found in contempt, and that person not testifying in later proceedings, affidavit, cross-examination thereon, within meaning of —testimony— within s. 13, inadmissible.

At the conclusion of the plaintiffs' case in this proceeding to show cause why the defendant and its CEO should not be found in contempt of court, the plaintiffs moved to introduce documents from a judicial review application in the Ontario Court. The plaintiffs relied upon Canada Evidence Act, sections 23, 24 and 30, which provide for the admission of business and judicial records and public documents without formal proof of each document's authenticity or of the covering certification. The plaintiffs intended to use such evidence, particularly the affidavits and cross-examination thereon of Dr. Sherman, the CEO of Apotex, Ms. Firestone, a witness called by the plaintiffs to testify herein, and Ms. Moffs, as evidence of the assertions then made.

The issues were: (1) whether the evidence sought to be adduced was hearsay, and if so, whether it was exempt from the hearsay rule; (2) whether the evidence was admissible under Canada Evidence Act, sections 28 and 30; (3) whether the affidavits and transcripts of cross-examination thereon were otherwise admissible; and (4) whether other documents from the record of the Ontario Court proceedings were admissible.

Held, the motion should be dismissed.

The evidence the plaintiffs sought to introduce was precluded from admission by the hearsay rule unless admissible by some exception thereto.

The provisions of the Canada Evidence Act relied upon by the plaintiffs did not establish the necessary basis for admission of any of the documents as evidence of the assertions contained therein. They merely facilitate admission of documentary evidence which meets the requirements for admission under some exception to the hearsay rule, but do not themselves provide the exceptions, except to the extent that they permit admission without formal proof that would otherwise be required at common law of the authenticity of the documents in question. Moreover, they do not provide that evidence in the forms described is admissible regardless of its relevance. The notice served pursuant to section 30 did not lead to admissibility of any of the documents. The Ontario Court records are not here questioned as to their authenticity, but are said to be hearsay and irrelevant. The plaintiffs did not establish the relevance of evidence offered in the Ontario Court proceedings to this show cause proceeding. Testimony from prior judicial proceedings is admissible in a later proceeding, as an exception to the hearsay rule when the proceedings involve the same parties and essentially the same issues. The Ontario Court proceeding was an application for judicial review which raised different issues from those before this Court. Moreover, the plaintiffs herein were not involved in the application in the Ontario Court. Sections 23 and 24 do not facilitate admission of documents which are not established as relevant to the issues of whether the defendant or its CEO engaged in activities that demonstrated contempt for the Court's authority or orders.

The documents were inadmissible for other reasons as well. Show cause proceedings are quasi-criminal in nature. Charter, sections 11 and 13 (which protect against self-incrimination) applied. The prior affidavits and cross-examination of Dr. Sherman could be used to question his credibility if he were to testify, but he was not a compellable witness in light of Charter, paragraph 11(c).

Case law appears to limit the application of Charter, section 13 (which precludes the admission of prior testimony as evidence in later proceedings) to oral testimony, excluding from its scope documents or real evidence from prior proceedings. Where, however, the affidavit and cross-examination thereon filed in a prior judicial review proceeding is that of a person subsequently ordered in other proceedings to show cause why he should not be found in contempt, and that person has not testified in the later proceedings, the affidavit from prior judicial review proceedings and any cross-examination thereon, falls within the meaning of "testimony" within Charter, section 13. It may not be adduced by the opposing party whose reliance upon it would constitute incriminating use within section 13. In any case, the Court would not exercise its discretion to admit Dr. Sherman's affidavits because to do so would breach its responsibility to ensure recognition of his right, pursuant to Charter paragraph 11(c ) not to be compelled to be a witness against himself in this quasi-criminal proceeding.

The affidavits of Ms. Firestone were not admissible because she had already appeared as a witness in these proceedings, and had been examined and cross-examined. She might have been examined in regard to any matter relevant to this proceeding that is dealt with in her affidavits in the Ontario Court proceeding and that would have provided opportunity for cross-examination by Apotex and by Dr. Sherman. But to now admit her affidavits would effectively deprive Apotex of the opportunity to cross-examine her on matters dealt with in her affidavits that the plaintiffs would rely upon as evidence. That would not qualify as fair process.

The affidavit and cross-examination of Ms. Moffs was inadmissible. Her evidence in the Ontario Court proceeding where issues were different was hearsay and no basis for treating it as an exception to the rule excluding hearsay was made out, nor was any basis established for considering it relevant if it were otherwise admissible.

As the plaintiffs did not establish the relevance of any of the other documents submitted for admission as evidence, they were also inadmissible.

statutes and regulations judicially considered

Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 23 (as am. by S.C. 1997, c. 18, s. 117), 24, 28, 30 (as am. by S.C. 1994, c. 44, s. 91).

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 8, 11, 13.

Combines Investigation Act, R.S.C. 1970, c. C-23, s. 17.

cases judicially considered

applied:

R. v. Kuldip, [1990] 3 S.C.R. 618; (1990), 61 C.C.C. (3d) 385; 1 C.R. (4th) 285; 1 C.R.R. (2d) 110; 114 N.R. 284; 43 O.A.C. 340.

considered:

Dubois v. The Queen, [1985] 2 S.C.R. 350; (1985), 66 A.R. 202; 23 D.L.R. (4th) 503; [1986] 1 W.W.R. 193; 41 Alta. L.R. (2d) 97; 22 C.C.C. (3d) 513; 48 C.R. (3d) 103; 18 C.R.R. 1; 62 N.R. 50; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; (1990), 67 D.L.R. (4th) 161; 54 C.C.C. (3d) 417; 29 C.P.R. (3d) 97; 76 C.R. (3d) 129; 47 C.R.R. 1; 106 N.R. 161; 39 O.A.C. 161.

authors cited

Sopinka, John et al. The Law of Evidence in Canada. Toronto: Butterworths, 1992.

MOTION to admit as evidence documents from a judicial review application in the Ontario Court as evidence of the assertions contained therein in this Federal Court proceeding to show cause why the defendant and its CEO should not be found in contempt of court. Motion dismissed.

counsel:

Charles E. Beall and Emmanuel Manolakis for plaintiffs.

Harry B. Radomski and David M. Scrimger for defendant.

Brian H. Greenspan for Dr. Bernard Sherman.

solicitors:

Gowling, Strathy & Henderson, Ottawa, for plaintiffs.

Goodman Phillips & Vineberg, Toronto, for defendant.

Greenspan, Humphrey, Toronto, for Dr. Bernard Sherman.

The following are the reasons for order rendered in English by

MacKay J.: This is a proceeding pursuant to an order that the defendant Apotex Inc. (Apotex) and Dr. Bernard Sherman, Chairman and at the relevant times Chief Executive Officer of Apotex, show cause why it and he should not be found in contempt of court as a result of its and his activities following filing of reasons for judgment [(1994), 59 C.P.R. (3d) 133 (F.C.T.D.)] on December 14, 1994, allowing the plaintiffs' action for infringement of its patent for its enalapril maleate prescription drug, marketed under the trade name Vasotec.

After calling witnesses to testify as to activities of the defendant Apotex and Dr. Sherman, at the conclusion of the plaintiffs' case, counsel for the plaintiffs "Merck" moved to submit documents from another proceeding as evidence in this matter. This followed upon plaintiffs' notices dated July 11, 1997 and served on the defendant Apotex and on Dr. Sherman in advance of commencement of this proceeding. Two notices were then served, both regarding the same specified list of documents. The first notice, said to be pursuant to section 30 of the Canada Evidence Act , R.S.C., 1985, c. C-5 [as am. by S.C. 1994, c. 44, s. 91], advised that the plaintiffs may tender in evidence the documents which were made in the usual and ordinary course of business by the Ontario Court of Justice General Division. The second notice, said to be pursuant to "subsection [sic ] 28 of the Canada Evidence Act" advised that the "Plaintiffs are hereby providing notice of their intention to produce copies of . . . documents in evidence at the hearing of this matter". Further, that notice provides that "pursuant to Sections 23 and 24 of the Canada Evidence Act . . . the Plaintiffs may tender . . . the following certified copies of records or proceedings before the Ontario Court of Justice (General Division), Divisional Court".

The same documents are specified in both notices. In the first notice specified above each document is described as a certified copy, while in the second notice the documents are listed and the list as a whole is described as constituted of certified copies. The list from the second notice is as follows, i.e., certified copies of:

1. Application for Judicial Review, filed by Apotex Inc., January 31, 1995;

2. Affidavit of Bernard Sherman, with Exhibits, affirmed January 31, 1995, Court File 58/95;

3. Supplemental Affidavit of Bernard Sherman, with Exhibits, affirmed February 1, 1995, Court File 58/95;

4. Affidavit of Theresa Sheila Firestone, with Exhibits, sworn February 1, 1995, Court File 58/95;

5. Affidavit of Shirley Moffs, with Exhibits, sworn February 1, 1995, Court File 58/95;

6. Affidavit of Bernard Sherman, with Exhibits, affirmed February 10, 1995, Court File 58/95;

7. Affidavit of Theresa Sheila Firestone, with Exhibits, sworn February 15, 1995, Court File 58/95; and

8. Transcript of the Cross-examination of Bernard Sherman held February 16, 1995, Application Record, Volume IV, Tab 9, Court No. 58/95.

At the hearing of this matter, at conclusion of testimony by witnesses called by the plaintiffs, the documents sought to be introduced by counsel were in two bundles, here described as they were at the hearing as bundles X and Y, which included, respectively:

in bundle X, certified as true copies of docu ments from the Divisional Court file 58/95""AFFIDAVITS OF THERESA SHEILA FIRESTONE dated February 1, 1995 and February 15, 1995"; and

in bundle Y, certified as true copies of docu- ments from the Divisional Court file 58/95""NOTICE OF APPLICATION FOR JUDICIAL REVIEW, AMENDED NOTICE OF APPLICATION FOR JUDICIAL REVIEW, AFFIDAVITS OF BERNARD SHERMAN dated January 31, 1995 and February 10, 1995, AFFIDAVIT OF SHIRLEY MOFFS dated February 1, 1995 AS WELL AS TRANSCRIPTS OF THE CROSS-EXAMINATION OF SHIRLEY MOFFS and APPLICATION RECORD, Vol. II and Vol. IV".

The plaintiffs' motion that these documents be accepted as evidence in this proceeding raises the following issues:

(i) whether the evidence sought to be adduced is exempt from the hearsay rule;

(ii) whether the evidence here is admissible under the provisions of the Canada Evidence Act relied upon by plaintiffs;

(iii) whether the affidavits and transcripts of cross-examination upon them are otherwise admissible in the cases, respectively, of Dr. Sherman, Ms. Firestone, and Ms. Moffs;

(iv) whether other documents from the record of the Ontario Court proceedings are admissible.

The evidence in question and the hearsay rule

As I understand it, the evidence here sought to be entered by certified documents from the proceedings of the Ontario Court is not simply for the purpose of establishing that the other proceedings occurred, but rather to be used as part of the plaintiffs' evidence in chief in this proceeding, relying upon the evidence voluntarily introduced in that other proceeding, as evidence here of the assertions then made. While that purpose was not specified in relation to all of the documents in question, that was clearly the purpose for introduction of affidavits filed by Dr. Sherman, and cross-examination upon them, for it was urged that the position he took in that earlier Ontario Court proceeding should be before this Court and he ought not to be perceived as presenting any different position in this show cause proceeding. Implicitly the same purpose was intended in relation to the affidavits of Ms. Firestone. She was a witness called by plaintiffs to testify in this proceeding and it was urged that, the respondents, having had notice of the plaintiffs' intention to introduce her affidavits from the Ontario Court, were at liberty to cross-examine her at this hearing, not only in relation to matters raised in her direct examination but in relation to matters dealt with in the affidavits now sought to be adduced. Without determining whether that would be permissible, it seems clear to me that the plaintiffs seek to rely on evidence provided by affidavits and cross-examination upon them, from other proceedings, for evidence of assertions contained in those documents.

In my opinion the evidence in question is clearly hearsay and is precluded from admission unless it be admissible by some exception to the hearsay rule. That rule, as defined by Sopinka, Lederman and Bryant in The Law of Evidence in Canada (Toronto: Butterworths, 1992), at page 156, may be stated as follows:

Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein.

When the plaintiffs' motion was argued, not much argument was directed to the implications of the hearsay rule, or to exceptions from it that might be relevant in the circumstances here. In my opinion the evidence the plaintiffs seek to introduce, for the purpose of evidence in this proceeding of assertions made in affidavits or cross-examination in the Ontario Court proceeding, is precluded from admission by the hearsay rule unless there be applicable exceptions to the rule.

The application of the Canada Evidence Act provisions

The provisions of the Canada Evidence Act relied upon by the plaintiffs in the notices of their intent to introduce the documents in question are first, section 30 of the Act which deals with the admissibility of records made in the usual and ordinary course of business, and section 23 [as am. by S.C. 1997, c. 18, s. 117], which permits proof of judicial records by a certified copy, section 24 which provides for admissibility of public documents, or copies thereof properly certified, when, in the case of the latter two sections notice is given in accord with section 28. Essentially both sections 23 and 24, as well as section 30, provide for admission of the specified documents without formal proof of each document's authenticity or of the covering certification.

Those statutory provisions facilitate admission of documentary evidence which meets the requirements for admission under some exception to the hearsay rule. The statutory provisions do not themselves provide the underlying rationale for the exceptions, except to the extent the statute permits admission without formal proof that would otherwise be required at common law about the authenticity of the documents in question. Moreover, the statutory rules do not provide that evidence in the forms described is admissible regardless of its relevance.

In my opinion the notice served pursuant to section 30 of the Canada Evidence Act does not in itself lead to admissibility of any of the documents in the circumstances of this case. The records of the Ontario Court made in the ordinary and usual course of its business are not here questioned as to their authenticity but they are said to be hearsay, and not relevant to the issues before this Court in this proceeding. Indeed that was essentially acknowledged, and the inappropriate resort to section 30 was acknowledged by counsel for the plaintiffs at the hearing. In submissions in support of his motion, after referring to the notice under section 30 of the Act, and argument upon the matter, counsel for the plaintiffs commented:

I'm sorry I said section 30. The notices were actually given under section 28 and in my enthusiasm to respond to their argument I got carried away. Section 28 is a section that refers to sections 23 and 24 which enables one to introduce the proceedings of another court into these proceedings.

I do apologize to my friends for section 30. I agree with them, section 30 has nothing to do with this. I ought not to have said that. It's sections 23 and 24 which are introduced through section 28. I don't know if that makes a difference but that's to do with proof of court documents . . . So to the extent I mentioned section 30 I apologize to my friends . . . .

Further, the notice pursuant to section 28 of the Canada Evidence Act, referring to sections 23 and 24 of the Act, does not here provide a basis for admissibility of the documents in issue. While it is said by plaintiffs that evidence offered in the Ontario Court proceedings may be relevant in this show cause proceeding, no basis is laid for that in evidence or in argument. There may be circumstances where testimony from prior judicial proceedings is admissible in a later proceeding, as an exception to the hearsay rule (see Sopinka, Lederman and Bryant, supra, at pages 270-278). Those circumstances generally require that the prior proceedings involve the same parties and essentially the same issues as in the proceedings where the prior testimony is sought to be introduced. In this case the prior proceedings are said to concern an application for judicial review to contest the decision of Ontario health authorities that the apo-enalapril product of Apotex be removed from the list of drugs to be paid for from public funds if prescribed for a resident in Ontario. That application for judicial review raises different issues from those before this Court. Moreover, the plaintiffs were apparently not involved in the application in the Ontario Court for which the style of cause describes Apotex as the applicant and Minister of Health, Attorney General of Ontario and Lieutenant Governor in Council as respondents.

In my opinion, sections 23 and 24 of the Canada Evidence Act, which concern the requirements for proof of judicial records or other public records, do not facilitate admission of documents which, as I perceive them, are not established as relevant to the issues before me. Those issues concern whether Apotex or Dr. Sherman engaged in activities, at times set out in the show cause order, after December 14, 1994, that demonstrate contempt for the Court's authority or orders.

Thus, my conclusion is that the provisions of the Canada Evidence Act here relied upon for notices by plaintiffs of their intent to seek admission as evidence of the documents in issue, do not establish the necessary basis for admission of any of the documents as evidence of any of the assertions that may be contained in those documents. In these proceedings those documents are simply hearsay and ought not to be admitted.

The affidavits in question, from prior proceedings

Even if I am wrong in my assessment of the significance of the notices given under the Canada Evidence Act in this case, or if there be some exception to the hearsay rule that would permit admission of the documents certified from the records of the Ontario Court, there are other circumstances in this case which in my opinion preclude admission of affidavits from Dr. Sherman, Ms. Firestone and Ms. Moffs, or transcripts of cross-examination upon them filed in the prior proceedings.

In considering the admissibility of the affidavits in question the circumstances differ somewhat in each case. I turn first to those relating to affidavits and any transcript of cross-examination or Dr. Sherman, then to those concerning affidavits of Ms. Firestone, and then to those concerning affidavits and cross-examination of Ms. Moffs.

Dr. Sherman is before the court as one directed to show cause why he should not be penalized for contempt of court. The proceedings are quasi-criminal in nature because of the possibility, if contempt is found, of penalties in terms of fines for both Apotex and Dr. Sherman and of possible incarceration in the case of Dr. Sherman. In these proceedings the provisions of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] apply, including those that ensure protection against self-incrimination, in particular in sections 11 and 13 of the Charter.

Counsel for Dr. Sherman, supported by counsel for Apotex, urges that the affidavits of Dr. Sherman, and presumably any transcript of cross-examination upon those, from the record filed in the earlier proceedings in the Ontario Court, are not admissible as evidence in chief of the plaintiff because of section 13 of the Charter, which provides:

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

The argument against admission of these affidavits relies upon the Supreme Court of Canada decision in Dubois v. The Queen, [1985] 2 S.C.R. 350, a case concerned with criminal proceedings where it was held that testimony offered voluntarily by an accused in the course of his trial was barred by section 13 of the Charter from being adduced at the re-trial of the accused, who did not testify at the second trial. One of the limited purposes for which evidence given at prior proceedings may be adduced, as described in the concluding phrases of section 13 of the Charter, was dealt with in R. v. Kuldip, [1990] 3 S.C.R. 618, where evidence given at a first trial by an accused was permitted to be adduced in his cross-examination, for the purpose of impeaching his testimony at a re-trial, and questioning his credibility. That limited use of the prior affidavits and cross-examination of Dr. Sherman would be permissible in this case if Dr. Sherman were to testify. As noted he has not yet done so and he is not a compellable witness in light of paragraph 11(c) of the Charter.

For the plaintiffs it is submitted that section 13 of the Charter is not here applicable. First, it is suggested that the affidavits of Dr. Sherman in the other proceedings are not "testimony" within the meaning of that word in section 13. Second, it is urged that the Charter provisions should not be applied to circumstances where the evidence sought to be adduced is in affidavits filed by Apotex in its application for judicial review, a process which counsel for the plaintiffs describes as essentially a process for equitable relief. It is urged that Dr. Sherman ought to be bound to the position he took, voluntarily, in that earlier proceeding and his affidavits then filed should be admitted as evidence in this matter of his position then adopted.

Thus far jurisprudence appears to limit the application of section 13 of the Charter to precluding the admission of prior testimony, as evidence in later proceedings, to oral testimony, excluding from its scope documents or real evidence from prior proceedings. The most direct statement on the matter is by Madam Justice L'Heureux-Dubé in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at page 587, where she commented, in part:

When one considers the carefully formulated wording of s. 13, . . . the drafters could not have made any clearer their intention to restrict the scope of the immunity to "testimonial" evidence. The word "testify" connotes the giving of evidence by means of oral communication in a proceeding. A witness "testifies" in recounting his or her version of certain events. This common sense meaning is simply not involved by the act of producing documents to the court.

With respect, that comment is obiter in a decision where the Supreme Court was concerned with the validity, in light of sections 7 and 8 of the Charter, or section 17 of the then Combines Investigation Act [R.S.C. 1970, c. C-23], which authorized orders to be issued to persons compelling their examination under oath and the production of documents, in the investigatory process of the Commission. L'Heureux-Dubé J. was considering the application of section 7 of the Charter to those circumstances and she referred to the pre-Charter privilege against self-incrimination. The comment quoted above was made without reference to the circumstance here that the documents in question include affidavits, and in some cases cross-examination upon them, filed in prior judicial proceedings. Those proceedings, for judicial review, progress to a hearing on the basis of affidavit evidence, and often of transcripts of cross-examination upon any affidavits filed, and without oral testimony. In my opinion, in circumstances where the affidavit is that of a person subsequently ordered in other proceedings to show cause why he or she should not be found in contempt, and that person has not testified in the later proceedings, the affidavit from prior judicial review proceedings, and any cross-examination upon it, falls within the meaning of "testimony" within section 13 of the Charter. It may not be adduced by the opposing party whose reliance upon it would constitute incriminating use within section 13 (see, Dubois , supra).

If I am wrong in so applying section 13, then in the exercise of my discretion I would not admit the affidavits of Dr. Sherman from the Ontario Court proceeding as evidence in chief in this proceeding. Dr. Sherman is not a compellable witness in this matter. The Court, by admitting the affidavits of Dr. Sherman and transcripts of cross-examination of him, would breach its responsibility, in this quasi-criminal proceeding, to ensure recognition of his right, pursuant to paragraph 11(c) of the Charter, not to be compelled to be a witness against himself.

I decline to admit the affidavits of Ms. Firestone, if they were otherwise admissible, for different reasons. She has already appeared as a witness, called by the plaintiffs, in this proceeding. She has been examined and was cross-examined by counsel for both Apotex and Dr. Sherman. Evidence she gave by affidavit in the Ontario Court proceeding is not now admissible here. She might have been examined while on the stand in this proceeding in regard to any matter relevant to this proceeding that is dealt with in her affidavits, and that would have provided opportunity for cross-examination by Apotex and by Dr. Sherman.

It is urged that having had notice of plaintiffs' intent to submit these affidavits the defendants might have raised in cross-examination of Ms. Firestone any question arising from her earlier affidavits. I am not persuaded that is so but I decline to make any final ruling since the matter did not arise in these proceedings. The defendant Apotex, and Dr. Sherman, were not bound to raise questions of Ms. Firestone from her affidavits now in question even if they might have been permitted to do so. I agree with the submission on behalf of Apotex that the process followed by the plaintiffs, if Ms. Firestone's affidavits were now admitted, would effectively deprive Apotex of the opportunity to cross-examine her on matters dealt with in her affidavits that the plaintiffs now would rely upon as evidence if their motion were granted. That would not qualify as fair process.

The affidavit and cross-examination of Ms. Moffs are not admitted in this proceeding for somewhat similar reasons. Ms. Moffs was not called as a witness in this proceeding by the plaintiffs. Her evidence, by affidavit and cross-examination, in the Ontario Court proceeding where the issues were different, is simply not admissible. It is hearsay and no basis for treating it as an exception to the rule excluding hearsay is made out, nor is any basis established for considering it relevant if it were otherwise admissible. If it were to be admitted the defendant and Dr. Sherman would be deprived of the opportunity to question her on matters the plaintiffs would rely upon from her earlier evidence in this

My conclusion is that none of the affidavits or transcripts of cross-examination on those affidavits, which plaintiffs seek to have admitted as evidence, should be admitted in the circumstances of this case.