Canada’s top court has ruled that British Columbia can bring forward a class-action lawsuit against pharmaceutical providers for harms caused by opioids on behalf of other provinces, territories and the federal government.
The decision brings an end to a years-long fight with Shoppers Drug Mart and other manufacturers, distributors and retailers who make or handle opioid drugs, and paves the way for potential nationwide action by governments.
The companies wanted the Supreme Court of Canada to examine two lower-court decisions that confirmed B.C.’s right to take legal action using the provincial Opioid Damages and Health Care Costs Recovery Act (ORA).
Section 11 of the act allows B.C. to file a class-action lawsuit against opioid providers on behalf of the federal government or any province or territory that paid to treat patients who took the drugs.
The companies argued the section was unconstitutional and did not respect territorial limits. Both the B.C. Supreme Court and the B.C. Court of Appeal sided with the province, ruling the section was purely a procedural mechanism.
In a 6-1 decision, the Supreme Court of Canada has now dismissed the companies’ final appeal.
Crisis crossing borders
A majority of justices found Section 11 is constitutional and deals with procedural rights that fall within the province’s authority over the administration of justice.
“When products, people and problems cross jurisdictional boundaries, co-operation and comity are vital to ensure that justice is not blocked by provincial borders,” wrote Justice Andromache Karakatsanis in the decision released Friday morning.
“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.”
Premier David Eby welcomed the decision, writing on social media platform X that it will allow the government “to hold opioid manufacturers accountable on behalf of all Canadians, for perpetuating” the opioid crisis.
B.C. Attorney General Niki Sharma said in a statement the government will “continue this fight on behalf of its citizens and all people of Canada until a final resolution is reached and encourage the defendants to consider their role in the ongoing opioid crisis and to work collaboratively with the government of B.C. to make amends.”
Federal Minister of Mental Health and Addictions Ya’ara Saks said Ottawa intends to join the class action if it’s certified.
The opioid crisis has taken thousands of lives and devastated families across BC & Canada. <br><br>Today’s Supreme Court ruling allows us to hold opioid manufacturers accountable on behalf of all Canadians, for perpetuating this crisis.<br><br>We will continue this fight.
—@Dave_Eby
The allegation
The opioid legislation is modelled on similar B.C. legislation that forced cigarette companies to pay a portion of tobacco-related health care costs. In 2005, the Supreme Court of Canada ruled that law was constitutionally valid.
In 2018, B.C. brought forward legal action against 49 pharmaceutical companies, including Sanis Health Inc., Shoppers Drug Mart Inc., Sandoz Canada Inc. and McKesson Canada Corporation.
B.C. alleged every province and territory in Canada has experienced high rates of addiction, illness and death due to the opioid epidemic, and that the defendants contributed to the epidemic by falsely marketing their products as being less addictive and less prone to abuse than other pain medications.
None of the allegations have been proven in court.
Sanis Health, Shoppers, Sandoz Canada and McKesson Canada brought forward the constitutional challenge.
Loblaw, which owns Sanis Health and Shoppers, told CBC News in a statement that it’s “disappointed” by the court’s decision and said it “almost guarantees a much longer, more expensive, complex and inefficient process.
“The Supreme Court’s decision is about jurisdiction, not merit, and we remain steadfast in the view that we are improperly included in this action. We will continue to seek every opportunity to have the claims against us resolved as soon as possible,” the statement said.
McKesson said it respects the court’s decision and will not comment further.
As the Supreme Court of Canada paves the way for B.C. to pursue a class-action lawsuit against opioid providers on behalf of other governments, former Vancouver mayor Kennedy Stewart says he hopes any money recovered from companies can go toward addressing the toxic drug crisis.
Former Vancouver mayor Kennedy Stewart, who says he has lost two family members to toxic drugs, is hoping any money recovered from opioid providers, if the class action is successful, goes toward addiction treatment and safer supply programs.
“We have to save lives,” he told CBC News. “What both the federal and provincial governments are doing are not saving lives. We’re losing six people a day here in British Columbia and we have to do more.”
Provinces or territories are allowed to opt out of B.C.’s class-action if they wish, according to the province’s legislation, but none have so far, said B.C.’s Ministry of the Attorney General on Thursday.
Justice Suzanne Côté dissented in the case, raising concerns about the legislative sovereignty of other provinces.
She said while co-operation between provincial and federal governments “is a laudable goal,” the method “must be consistent with the structure of Canadian federalism, no matter how advantageous it may be to encroach on the jurisdiction of other governments in any given case.”