Alberta seeks court dismissal for lawsuit challenging opioid-prescribing rules

The Alberta government is asking the court to dismiss a lawsuit that challenged the province’s opioid-prescribing rules on the basis of Charter violations.

Ophelia Black filed a lawsuit against Alberta in February, 2023, over new standards that forbid pharmacists and other dispensers from prescribing high-potency narcotics and required supervised dosing. Ms. Black alleges it breached multiple Charter rights, including her right to life, liberty and security of the person.

The following month, a Court of King’s Bench judge granted an injunction that exempted Ms. Black from the rules, concluding she had a “strong position that her constitutional rights have been infringed.” This allowed her to continue using prescribed hydromorphone at home. Hydromorphone is a fast-acting and potent opioid analgesic.

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Now, nearly three years later, Alberta is arguing that a recent amendment to its Mental Health Services Protection Act, which allows the government to provide exemptions, is grounds to dismiss the case. An exemption can be granted if it is deemed necessary for the treatment of an individual, scientific or research purposes or if it’s in the public interest.

“The plaintiff’s claims are premised on the impossibility of being exempted from the statutory scheme,” states the court application, which was filed in the Court of King’s Bench on Dec. 22. “As a result, the plaintiff’s claims are now moot, as they seek to challenge a statutory scheme that no longer exists.”

An exemption is not guaranteed if Ms. Black were to apply for one.

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Additionally, a government-approved exemption “may be conditional, time-limited, suspended, amended or revoked if conditions are not met,” according to the application form. Conditions are outlined in an exemption notice if approved.

Nathaniel Dueck, press secretary to Rick Wilson, Alberta Minister of Mental Health and Addiction, declined to comment on the matter as it is before the courts. He also declined to comment on the application of legislation to a specific individual.

Ms. Black was diagnosed with severe opioid use disorder when she became dependent on street-sourced drugs in 2020 after years of debilitating mental and physical health issues. She tried multiple forms of treatment, but nothing worked until Ms. Black was prescribed hydromorphone, a drug that she has said saved her life and provided stability.

Ms. Black, 25, says she is working toward a diploma in finance, is learning how to code and has her own apartment and a long-term partner.Jude Brocke/The Globe and Mail

During an interview on Friday, Ms. Black, 25, said she has come a long way since then. She is working toward a diploma in finance, learning how to code to build software to help other students, has her own apartment and a long-term partner.

“I go to class, I do my assignments, I don’t spend any time in my day thinking about drugs. I really started to feel like normal again,” she said. “My medication gives me the foundation for my life, allows me to live a healthy, normal lifestyle.”

Ms. Black said she is scared of losing everything she has worked so hard to build over the last few years and is frustrated that the new chapter in court brings her back into the spotlight.

“The government says they want people to recover and I have done that. I built my life piece by piece,” she said. “Dragging this back to court and losing the privacy I have built, that is going to cause harm to my life, my reputation. I’m just confused honestly. Why this? Why now?”

Shortly after the injunction was granted, a judge awarded Ms. Black more than $41,500 to cover court costs. Her lawyer, Avnish Nanda, said he brought forward another application for future costs to take the case to trial, but it has been stalled because of the legal motion.

He thinks Alberta is concerned about the larger impact of Ms. Black’s case, despite its narrow scope. He said a dismissal could prevent other people from bringing similar lawsuits forward where the government steps in between a patient and their health care provider, dictating what treatment they can receive.

“She’s pursuing a full and thriving life as a young woman and what the government of Alberta is trying to do is to deprive her of that,” Mr. Nanda said, adding he doesn’t know why the government would put her back in a potentially risky situation.

The case has not yet gone to trial. As such, none of the allegations have been proven in court.