Canada’s top court has affirmed the constitutionality of a law that would allow British Columbia to pursue a class-action lawsuit against opioid providers on behalf of other provinces, the territories and the federal government.
The Supreme Court of Canada’s 6-1 decision Friday is another step toward a potential cross-country action by governments that paid to treat patients who took the addictive drugs.
B.C.'s Attorney-General Niki Sharma welcomed the decision by Canada's highest court.
"Today marks a significant victory in our fight against the opioid manufacturers and distributors as B.C can now proceed on behalf of the federal, provincial and territorial governments to recover the cost of treating opioid-related disease allegedly caused by the industry's wrongful conduct following the Supreme Court of Canada ruling," Sharma said in a statement.
She added in a media availability that today's ruling gives B.C. "better tools" to help tackle the opioid crisis that has killed more 15,000 people since B.C. had declared it a public health emergency in 2016.
Sharma said in her statement that B.C. will continue this "fight" until "a final resolution is reached" but also "encourage(d) the defendants to consider their role in the ongoing opioid crisis and to work collaboratively with the Government of B.C. to make amends."
She added that she agrees with defendants, who want to get to trial as quickly as possible. "I would invite defendants of this action to help with the resolution of this, so we can come to some kind of agreement that moves forward through the courts."
Sharma did not tip her hand when asked about a potential target amount from the companies. "It always starts with the acknowledgement and recognition that there is no amount of money that we would be able to collect from these pharmaceutical companies that could undo the damage that I know a lot of families across B.C. and the country have faced," she said. "At this stage of the proceeding, it's too early to give an estimate."
Friday's ruling concludes a process that began in 2018 when B.C. enacted the Opioid Damages and Health Care Costs Recovery Act in launching a class-action lawsuit on behalf of Canada, representing all jurisdictions.
Section 11 of B.C.’s Opioid Damages and Health Care Costs Recovery Act allows the province to bring an action against opioid manufacturers and distributors on behalf of multiple governments, but also allows a government to opt out of the proceeding.
Several companies argued Section 11 violates the Constitution by overstepping provincial authority.
B.C. courts declared the law valid, prompting the companies to take their case to the Supreme Court.
A majority of the top court found that the B.C. law respects the legislative sovereignty of other Canadian governments.
It noted that nearly every province and territory in Canada and the federal government intend to participate in the proposed class action, adding that a court should exercise considerable caution before it finds that this co-operation is unconstitutional.
Section 11 is an example of the important role that national class actions play, providing a mechanism to help multiple governments work toward the same goal, the court said.
In an increasingly complex modern world, where governments assume greater regulatory roles in multi-faceted areas, there is a greater need for collaboration between governments and between courts that cross those borders, Justice Andromache Karakatsanis wrote on behalf of the majority.
“The opioid epidemic spanning our country is a stark example of a crisis which attracts this co-operation and comity. National in scope, it highlights the role a national class action can play in achieving efficiency, consistency, and access to justice for all those who have experienced harm, regardless of geographic boundaries.”
Sharma said in her remarks to media that the upheld legislation includes an opt-clause. "To date, none of the other jurisdictions have and this is an example of us working together," Sharma said in describing B.C.'s winning court as an example of "cooperative federalism."
This is not the first health-care-related class-action lawsuit led by B.C. with B.C. having played a key role in the lawsuit against the national tobacco industry, nor the first one involving opioids under the Opioid Damages and Health Care Costs Recovery Act. In 2022, Purdue Pharma settled with Canada, B.C. and other provinces before the courts ever took up the case based on the Opioid Damages and Health Care Costs Recovery Act.
But Friday's ruling broadly confirmed the constitutional ability of provinces to launch lawsuits on behalf of other jurisdictions, including the federal government, in essentially extending and amplifying the power of provinces in responding to social harms to large populations caused by corporations.
This possible extension and amplification could also apply to any future dealings with social media companies. "We've certainly talked about the many impacts, we have seen from social media companies," Sharma said. "It's certainly a model that could be used in other circumstances."
Jim Bronskill, The Canadian Press
– With files from Wolf Depner
