An anti-fentanyl advertisment on a sidewalk in downtown Vancouver, on April, 11, 2017.JONATHAN HAYWARD/The Canadian Press
A British Columbia Supreme Court judge has certified a class-action lawsuit against opioid companies led by the provincial government, a milestone in the effort to recover health care costs over alleged wrongful corporate conduct.
The B.C. NDP government first launched the lawsuit almost six years ago. The claims that have not yet been tested in court, and extended litigation is likely ahead.
Justice Michael Brundrett of the B.C. Supreme Court, in his 226-page judgment, acknowledged the complications as the case proceeds, but concluded a class action should be certified, in part because it would be a fair, efficient and manageable way to address the allegations. He further concluded that a class action was a “far better option than the alternatives,” such as individual cases.
“I find the defendants’ concerns about potentially complex individual issues to be overstated,” Justice Brundrett wrote in his conclusion on certification. “The substantial ingredients of the liability issues are central here and can be resolved in a common way.”
The court hearings to certify the class action against opioids companies took place over 17 days in late 2023. The B.C. government, as the lead plaintiff, alleges that “wrongful conduct in over-promoting prescription opioid use” led to substantial public health care costs to deal with the severe impact of the overdose crisis. B.C. is joined in the class action by all federal, provincial and territorial governments.
More than 40 companies that make, distribute and sell legal opioids are named as defendants. They fought against a class action, in part arguing that there were differences between the dozens of companies named in the lawsuit.
Similar legal action against tobacco companies is set to conclude this month, marking a $32.5-billion win in favour of governments across Canada and people harmed by smoking, though it took more than a quarter-century to resolve.
Drug overdoses have hit B.C. the hardest of all provinces. In 2016, B.C. declared a public-health emergency. Across Canada, opioids killed almost 50,000 people, from the start of 2016 through mid-2024. Most of the deaths were in B.C., Ontario and Alberta.
Nav Persaud, a family doctor in Toronto and Canada Research Chair in Health Justice, said that while more action is needed to turn the tide on the country’s drug crisis, the certification is an encouraging development.
“Those who profit from the opioid crisis have escaped accountability in Canada while criminal convictions were rendered in the U.S.,” he said. “This is a step in the right direction, toward justice.”
One of the main allegations in the class action is that companies marketed the legal drugs as less addictive and less likely to be misused.
“We intend to prove that the opioid crisis was caused by the wrongful conduct of these defendants and hold them accountable for putting profits before people,” said Reidar Mogerman, a lawyer at CFM Lawyers LLP in Vancouver and counsel for B.C. in the class action.
The Globe and Mail reached out to numerous companies named as defendants but did not get a response from many of them Wednesday.
One of the companies, Metro Inc.’s Jean Coutu Group, said in a statement that “we are challenging the court’s jurisdiction and believe these proceedings to be without merits.”
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.
The certification is B.C.’s second big court victory on opioids in two months. In late November, the province won a related case at the Supreme Court of Canada against several opioids companies. At dispute was a provision in B.C.’s 2018 Opioid Damages and Health Care Costs Recovery Act that enabled the government to include other provinces, territories and Ottawa in a collective class action on the issue. This was new legal territory.
The Supreme Court ruled it made sense for governments to proceed as a group: “National class actions, and in particular multi‑Crown class actions, ensure that justice is not blocked by provincial borders. The opioid epidemic is a stark example of a crisis that should attract co-operation.”
If B.C. had lost at the top court, each government would have had to pursue legal action on their own. Instead, other governments can now choose to officially opt-in to the certified class action over a period of 30 days.
Ottawa plans to opt-in, said Ya’ara Saks, federal Minister of Mental Health and Addictions, in a post on X: “Our work to end the predatory practices of the pharmaceutical industry continues.”
Niki Sharma, B.C. Attorney-General, in a statement Wednesday cited the likely pan-Canadian nature of this class action: “We will keep on fighting for people in our province and all of Canada, because it is the right thing to do.”