B.C. Attorney General Niki Sharma pauses while responding to questions outside B.C. Supreme Court in Vancouver on Nov. 27.DARRYL DYCK/The Canadian Press
The B.C. Supreme Court should certify a class-action lawsuit against dozens of players in the opioid industry for their alleged role in fuelling Canada’s overdose crisis to save time and money on what would otherwise be 13 nearly identical actions, says a lawyer for the B.C. government.
Reidar Mogerman told Justice Michael Brundrett on Monday that the court should approve a class made of governments saddled with health care costs related to a drug crisis that has killed or injured thousands of Canadians.
“This litigation is about what the defendants did, what the defendants knew, when did they know it [and] how did they react to the information that they had,” Mr. Mogerman said. “Did they, as is alleged, deceive and mislead the relevant players in the health-care system in order to balloon the sales of opioids, which in turn caused the opioid crisis?’’
The questions at the heart of the lawsuit are common across provinces and territories, the lawyer said.
The certification hearing, which will not deal with the merits of the case but rather whether it should proceed as a class proceeding, is expected to last a month. If certified, the case would then move ahead as a civil trial.
B.C. initiated the class action in 2018 with the goal of recovering public-health costs resulting from alleged wrongful conduct of opioid manufacturers, distributors and their consultants. To assist the court process, government also enacted the Opioid Damages and Health Care Costs Recovery Act, similar to legislation introduced in 1998 to sue the tobacco industry.
The lawsuit accuses brand-name and generic manufacturers of deceptively marketing opioids as both being less addictive than actually known and for conditions they were not effective in treating, and distributors of delivering these drugs “to pharmacies and hospitals in Canada in quantities that they knew or should have known exceeded any legitimate market.”
Health experts have also noted that as doctors and regulators clamped down on opioid prescribing, worried about a growing crisis, some patients turned to an illicit opioid supply that was becoming increasingly awash with deadly fentanyl.
The more than 40 defendants include manufacturers such as Purdue Pharma, retailers such as Shoppers Drug Mart Inc. and the Jean Coutu Group Inc., and distributors and wholesalers.
In June, 2022, opioid manufacturer Purdue Pharma (Canada) agreed to a $150-million settlement with federal, provincial and territorial governments in the context of the proposed class action. Premier David Eby, then attorney-general, said at the time that it was the largest settlement of a government health claim in Canadian history, and “paves the way for additional settlements to be reached in the ongoing litigation against other manufacturers and distributers of opioid products.”
The settlement was reached before allegations against Purdue Canada were proven in court.
The Globe and Mail contacted defendants including Shoppers Drug Mart and Jean Coutu for comment but did not immediately receive responses.
Attorney-General Niki Sharma said the proposed class action with federal, provincial and territorial governments is the first of its kind in Canada, designed to expedite the legal process and bring swifter justice.
“We are holding multinational pharmaceutical companies accountable for their role in today’s public health emergency, which was first declared in 2016 – an epidemic which has claimed the lives of over 13,000 people and impacted many more families,” Ms. Sharma told reporters outside the courthouse on Monday morning.
She said while there isn’t yet an estimated dollar figure that the province is seeking in damages, it’s expected to be “pretty substantial.”
Various defendants have sought to have proceedings deferred or dismissed on procedural grounds. Earlier this month, Sanis Health Inc., Shoppers Drug Mart Inc., Sandoz Canada Inc., and McKesson Canada Corporation applied for an order adjourning this week’s certification hearing pending a Supreme Court of Canada decision on the presumed inclusion of other governments in the plaintiff class.
Justice Brundrett dismissed the application on Nov. 17, noting its lateness and the fact even an Supreme Court ruling in their favour would not necessarily bring proceedings to an end.
And in late 2022, Jean Coutu, a franchisor operating a network of independently owned stores and pharmacies, mainly in Quebec, and distributor Pro Doc Limitée, a wholly owned subsidiary of Jean Coutu, argued that they should not be included in the lawsuit because they have no significant presence in B.C. and that the B.C. Supreme Court has no jurisdiction over them.
Justice Brundrett dismissed that proceeding the following April, finding a “good arguable case” that their opioids “would indirectly find their way to consumers in B.C., or be consumed in B.C.”
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With a report from The Canadian Press