A man walks past the Supreme Court of Canada, in Ottawa, on June 16, 2023.Adrian Wyld/The Canadian Press
British Columbia won at the Supreme Court of Canada on Friday against the country’s leading pharmacies and two generic drug makers, as the top court upheld a key section of a 2018 law that enabled B.C. to include other provinces, territories and Ottawa in a class action on opioid health care costs.
The 6-1 ruling means that governments across the country can be part of a single class-action lawsuit that B.C. has already launched in the province’s superior court. That process started six years ago against about four dozen companies involved in the manufacture and sale of prescription opioids.
The decision could help speed the already-lengthy legal saga for potential recovery of health care costs by governments from the companies. Had B.C. lost the top-court case, each government would have had to initiate a similar claim on its own.
The drug-overdose crisis has hit B.C. the hardest of all provinces. In 2016, B.C. declared a public-health emergency. Since then, overdoses – primarily from illicit opioids – killed almost 16,000 people. Last year was the deadliest in the long public-health crisis, when drugs killed 2,573 people in the province.
Across Canada, opioid toxicity killed 47,162 people from the start of 2016 through this past March.
A class-action certification hearing took place a year ago in B.C. Supreme Court, which has yet to issue a decision on the matter. B.C. alleges – the claims have not been tested in court – that companies in the business of making and selling legal opioids contributed to the overdose epidemic by falsely marketing their products as less addictive and less prone to misuse.
B.C. says court should certify class action lawsuit against opioid industry
The Supreme Court case against B.C. was brought by Sanis Health Inc. and Shoppers Drug Mart Inc. – both owned by Loblaw Cos. Ltd. – as well as Sandoz Canada Inc., the domestic arm of the Swiss generic drug maker, and McKesson Canada Corp., which owns Rexall pharmacies.
B.C.’s 2018 opioids damages legislation as a whole was not in question at the Supreme Court of Canada. What was fought over was section 11 of the law, considered a novel approach by the B.C. government in the evolution of class-action law. It allowed B.C. to include other governments in its class action. But they can choose to opt out.
The companies argued that this approach was beyond a province’s constitutional powers. The Supreme Court rejected that argument and deemed the approach a valid procedural mechanism, agreeing with two lower-court rulings. The complex modern world means governments and courts need to co-operate across borders, the court said.
“National class actions, and in particular multi‑Crown class actions, ensure that justice is not blocked by provincial borders,” wrote Supreme Court Justice Andromache Karakatsanis. “The opioid epidemic is a stark example of a crisis that should attract co-operation and comity.”
Alyssa Tomkins, a partner at Gowling WLG and experienced in public law and commercial litigation, said the Supreme Court decision reflects trends in class-action law, such as an aim for efficiency rather than multiple legal actions. She was not involved in the case.
“Courts for some time have been trying to facilitate national class actions,” said Ms. Tomkins.
Niki Sharma, B.C. Attorney-General, said in a statement: “Our government will continue this fight on behalf of its citizens and all people of Canada until a final resolution is reached.”
Loblaw, in a statement, said the Supreme Court decision “almost guarantees a much longer, more expensive, complex and inefficient process.” The company said it has been improperly included in the class action.
Peter Pliszka, a partner at Fasken Martineau DuMoulin LLP and counsel for Sandoz Canada, said in a statement that class-action certification and other issues are still being litigated.
As part of B.C.’s strategy to recover health care costs from companies in the opioids business, the province in 2018 enacted the Opioid Damages and Health Care Costs Recovery Act, similar to legislation introduced in 1998 to sue the tobacco industry. The new act landed soon after the class-action lawsuit began.
The companies in the Supreme Court case are only a few that are named in the B.C. class action. Opioids maker Purdue Pharma (Canada) has already settled. In 2022, it agreed to a $150-million deal with federal, provincial and territorial governments in the context of the proposed class action.
In the late 1990s, B.C. was the first province to sue tobacco companies. Around the same time, individuals in Quebec also sued and eventually won in provincial court in 2015 and 2019. At that point, the tobacco companies sought bankruptcy protection and the provincial claims were included.
This October, after a legal odyssey of more than a quarter-century, a proposed deal was reached. Three large tobacco companies are set to pay individuals and provinces $32.5-billion to settle legal claims.
The opioids class action is currently six years in. A year ago at the certification hearing, Reidar Mogerman, counsel for B.C. in the class action, summarized the case in court: “This litigation is about what the defendants did, what the defendants knew, when did they know it [and] how did they react to the information that they had.”
Editor’s note: A previous version of this article incorrectly stated that the province of British Columbia won a case brought against it 3-0 at the B.C. Supreme Court in 2022 and won at B.C. Supreme Court in 2023. It won at the B.C. Supreme Court in 2022 and won 3-0 at B.C. Court of Appeal in 2023. This version has been updated.