In a decision released May 11, Justice Hughes ordered the concurrent testifying, or “hot tubbing” of expert witnesses. The decision is Apotex v. Astrazeneca Canada, 2012 FC 559 (omeprazole), a PM(NOC) section 8 liability proceeding.

The decision in T-2300-05 is not yet published on the court website but is available as a PDF. The quantification was deferred to a reference.

At paragraph 10 of the decision, Justice Hughes described the process used:

At the end of the testimony of Ms Wehner and Dr Garven I conducted a “hot tubbing” examination in which each of them took the stand at the same time, remaining under oath. They answered questions put to them by me and responded to the answers given by each other. At the end of this process, each Counsel was invited to put follow-up questions to these witnesses.

The court found Section 8 to be constitional and found that Apotex is entitled to be compensated for its loss under the provision of section 8(1) of the PM(NOC) Regulations.