B.C. government opioid case can move ahead, appeal court rules - Victoria Times Colonist
B.C.’s Court of Appeal has upheld a lower court decision that the provincial government can sue opioid-distributing companies in the province’s Supreme Court as a “putative” class-action suit — one filed on behalf of multiple people with a similar claim that hasn’t yet been certified by a court.
The government brought the lawsuit under the Opioid Damages and Health Care Costs Recovery Act, and the Class Proceedings Act.
“The plaintiff brings its claims to recover certain opioid‑related health-care costs and damages from defendants who were involved in the manufacturing, marketing, distribution or sale of opioid drugs and products from 1996 to the present,” Justice Michael Brundrett said in a 2023 decision.
“Generally, the plaintiff’s claim against the manufacturer defendants is that they marketed and promoted opioids in Canada as less addictive than they knew them to be, and for conditions they knew the drugs were not effective in treating,” Brundrett said.
“These misleading marketing and promotion efforts allegedly resulted in an increase in the prescription and use of all opioids.
Two defendants — pharmaceutical companies the Jean Coutu Group and Pro Doc Limitee — appealed Brundrett’s ruling that the Supreme Court of B.C. had jurisdiction to hear the case.
Writing for the unanimous three-judge appeal panel, Justice Lauri Ann Fenlon said in a March 19 decision that Brundrett did not err in his ruling.
“The judge did not err in finding that the pleadings linked Jean Coutu to B.C. The judge did not err in finding that there was a good arguable case that it was foreseeable the opioids would be distributed in B.C. and that there was evidence to establish an arguable case linking the appellants to misrepresentations that were received and relied on in B.C.,” a summary of Fenlon’s ruling said.
“The judge did not err in finding an arguable case that the appellants engaged in a common design to expand the opioid market and encourage consumption.”
The government began the putative class proceeding in August 2018.
Pro Doc and the Jean Coutu Group Inc. had brought an application to the court asserting B.C. was not the appropriate jurisdiction for the case to be heard.
The government rebutted that there is a “real and substantial connection” between B.C. and the claims against the defendants because they carried on business in the province and there are issues of restitution arising as a result.
“The plaintiff submits that liability for compensation for health-care costs incurred by B.C. at issue in this proceeding constitutes both a tort and gives rise to restitutionary obligations,” Brundrett said.
The judge said the government alleges that, from 1996 — when the Purdue‑related defendants first introduced and began to improperly market OxyContin in Canada — to the present, the class members paid health-care, pharmaceutical, treatment and other costs related to opioids.
“The plaintiff seeks to recover these costs,” Brundrett said.
The class action alleges public nuisance, unjust enrichment, negligent failure to warn, negligent design, negligent misrepresentation, fraudulent misrepresentation/deceit, breach of the Competition Act and breach of the Food and Drugs Act.
Pro Doc and the Jean Coutu Group Inc. submitted they have no significant presence in B.C. and no noteworthy involvement in the opioid market here.
None of the allegations have been proven in court.
Aside from Pro Doc and the Jean Coutu Group Inc., a number of pharmaceutical companies are named as defendants in the case, from Apotex Inc. to Bristol-Myers Squibb, Johnson & Johnson and Purdue Pharma Inc.
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