Class actions can automatically include provinces, says Supreme Court

The automatic inclusion of the federal and all provincial and territorial governments in a class action launched by a province is constitutional, rules the Supreme Court of Canada. The highest court in the country thus considers that British Columbia had the right to include other governments in its class action to counter the harm caused by opioids.

In a majority decision of six judges to one, the court finds that section 11 of the Opioid Harm Act, or theOpioid Damages and Health Care Costs Recovery Act (ORA) of British Columbia, which authorizes the province to automatically include the federal, provincial and territorial governments, is constitutional.

This article from theORA also allows governments to withdraw from action if they wish, which none of them have done, Victoria confirms.

A class action against the opioid crisis

In 2018, British Columbia launched a class action lawsuit on behalf of the federal, provincial and territorial governments against 49 pharmaceutical companies that it considers responsible for the opioid crisis raging in the country.

The defendants asserted, however, that the province did not have the jurisdiction to conduct a multi-jurisdictional class action, even if the provinces and territories, as well as Ottawa, had the possibility of withdrawing from the action.

Dismissed in the Supreme Court of British Columbia and then in the provincial Court of Appeal, the companies Sanis Health, Shoppers Drug Mart (Pharmaprix), Sandoz and McKesson asked the Supreme Court of Canada to decide the case.

By ending this constitutional battle, the Supreme Court allows a nationwide class-action lawsuit against opioid manufacturers.

A representative for Loblaw, owner of Sanis Health and Shoppers Drug Mart, believes the court’s decision paves the way for a legal process longer, more expensive and inefficient.

We are disappointed with this decisionhe specifies in a press release.

We will continue to pursue every opportunity to have complaints filed against us resolved as quickly as possible.

In contrast, British Columbia is rejoicing. Provincial Attorney General Nikki Sharma hails victory significant in the fight against the overdose crisis.

We are calling on multinational pharmaceutical companies to account for their role in the public health emergency declared in 2016, which cost countless lives and impacted many families.

Since 2016, more than 47,000 Canadians have died from opioid overdoses.

Respect for government authority

According to Justice Andromache Karakatsanis, who wrote the decision on behalf of the majority, British Columbia’s law “respects the legislative sovereignty of other governments in Canada.”

The Court considers that Canada’s opioid epidemic is a striking example of a crisis that calls for [à la] cooperation and [à la] courtesy.

Paul Daly, holder of the University of Ottawa Research Chair in Administrative Law and Governance, believes that this decision is in line with the tendency of the courts to encourage class actions to promote the efficiency of justice.

“There is a strong trend in the country’s courts in favor of class actions [comme] effective ways to resolve disputes and today’s decision is part of this trend,” he explains.

Mr. Daly is also not surprised that there is a dissenting opinion, written by Judge Suzanne Côté, which supports the defendants’ version.

“The cases that progress to the Supreme Court are often cases where there are divided opinions,” notes Mr. Daly, even if the British Columbia Court of Appeal rendered a unanimous decision.

The appeal will go forward

The office of the Attorney General of British Columbia indicated on Thursday that the decision rendered Friday would not have an impact on the prosecution itself.

British Columbia remains committed and determined to hold these companies accountable for their actionswrites a spokesperson.

For her part, the federal Minister of Mental Health and Addictions, Ya’ara Saks, is satisfied with the court’s decision to recall “the right of governments to hold pharmaceutical companies responsible” and confirms that Ottawa will join to a class action once it is launched.

“We have taken action to combat the predatory practices of the pharmaceutical industry – and we will not stop now,” she wrote on the social network X.

Greater room for maneuver

This law is inspired by a previous judgment from 2005 which ruled in favor of British Columbia against the tobacco giant Imperial Tobacco. The province aimed to hold tobacco companies accountable for the harm caused by their product.

The Supreme Court of Canada had confirmed the constitutionality of such an action in order to recover sums due to the costs caused by tobacco use on the health system.

However, it did not include the possibility of making it a class action.