The Supreme Court of Canada ruled on Friday that the province of British Columbia (BC) may bring a class action on behalf of multiple governments in Canada for harm caused by opioids.
Faced with a public health crisis caused by the opioid epidemic, BC enacted the Opioid Damages and Health Care Costs Recovery Act in 2018. This legislation creates a statutory cause of action against the manufacturers, distributors and consultations of opioid drugs for causing or contributing to opioid-related disease, injury or illness. Specifically, section 11 allows BC to bring a class action on behalf of other governments across Canada, with provinces having the option to opt out of the action. BC sought certification of the action as a class proceeding with itself as the representative plaintiff and a class consisting of all federal, provincial and territorial governments and agencies that paid healthcare, pharmaceutical and treatment costs related to opioids.
The pharmacy and drug marker defendants argued section 11 was outside of the BC government’s jurisdiction, arguing that this class action framework would enable BC to take control over the substantive civil rights of other provincial governments. By binding those governments to its decisions, section 11 would infringe on their litigation autonomy and violate their sovereignty to enact potentially contradictory laws.
The court found that section 11 is purely a procedural mechanism to facilitate a process in which the substantive claims of extraterritorial governments may be litigated. Therefore, this multi-crown litigation provision falls under the province’s authority to legislate matters concerning the administration of justice in the province. By choosing to opt-in to this procedural mechanism, a government’s choice to litigate in a different province and subject itself to the procedural rules of that province does not violate any constitutional principle.
Writing for the majority, Justice Karakatsanis stated the court recognizes that legislative overlap is inevitable when it comes to national issues like the opioid epidemic. Invoking the principle of intergovernmental cooperation, the Court said governments are free to legislate in areas that overlap for their own valid purposes. The court wrote:
In an increasingly complex modern world, where governments assume greater regulatory roles in multifaceted areas, overlapping jurisdictional boundaries, there is a greater need for cooperation between governments and between courts that cross those borders. 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 cooperation and comity.
The ruling means that all provinces, territories, and the federal government can remain in the single class-action lawsuit launched in BC. The class action is currently awaiting certification. If certified, the case would move forward as a civil trial at the BC Supreme Court.
This is the second piece of healthcare cost recovery legislation enacted by the BC government. The province was also the first province to bring an action against tobacco companies for damages over healthcare costs related to smoking, setting the example for other provinces to follow suit. In 2019, the tobacco companies sought creditors’ protection and entered into closed-door negotiations for a settlement with the provinces. In October 2024, the tobacco companies proposed $32.5 billion to settle all legal claims in Canada.
