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Opioid Crisis - Class Actions. Sanis Health Inc. v. British Columbia
In Sanis Health Inc. v. British Columbia (SCC, 2024) the Supreme Court of Canada dismissed an appeal, that against a BCCA decision dismissing an appeal, that of a dismissal by the BC Superior Court of an application by the corporate defendants in a consumer opioid damages class action, who sought an interlocutory division-of-powers ultra vires declaration against a class-action-supporting BC statutory provision [the 'Opioid Damages and Health Care Costs Recovery Act, s.11'].
Here the court considers the need for, and development of, cross-jurisdictional class action legislation, of which the case summarized here - seeking remedies for an "opioid epidemic spanning our country" - is an example:I. Introduction
[1] 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. Our Court has recognized this need in a more flexible approach to interjurisdictional cooperation. It is reflected in the interpretative principle of “cooperative federalism”; the respect and recognition of each province’s adjudicative jurisdiction in the spirit of mutual comity; and the development of procedural frameworks to permit cross-border collective actions. It is reflected in the horizontal cooperation between governments for the public good.
[2] National class actions in Canada, and in particular multi-Crown class actions, represent the convergence of these ideas. Fifteen years ago, this Court urged provincial legislatures to “pay more attention to the framework for national class actions and the problems they present” (Canada Post Corp. v. Lépine, 2009 SCC 16, [2009] 1 S.C.R. 549, at para. 57). When products, people, and problems cross jurisdictional boundaries, cooperation and comity are vital to ensure that justice is not blocked by provincial borders.
[3] The opioid epidemic spanning our country is a stark example of a crisis which attracts this cooperation 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.
[4] The appellants, several pharmaceutical companies which manufacture, market, and distribute opioid products throughout Canada, challenge s. 11 of British Columbia’s Opioid Damages and Health Care Costs Recovery Act, S.B.C. 2018, c. 35 (ORA). The provision authorizes the government of B.C. to bring an action on behalf of a class consisting of other provincial, territorial and federal governments in Canada to recover their respective health care costs caused by “opioid-related wrong[s]”. The appellants say it does not respect the territorial limits on provincial legislative competence within the Constitution Act, 1867. They argue that the framework chosen by B.C. to facilitate cooperation and comity, through a law which allows for a national multi-governmental class action, violates our constitutional structure by undermining the sovereignty of other governments in Canada.
[5] The ultimate question raised by their appeal is this: Can multiple Canadian governments join in a single class action, in one province, before one province’s superior court, without unconstitutionally sacrificing their autonomy or sovereignty?
[6] Specifically, the appellants ask if one province can determine the rules of a class action that would bind other governments who choose to participate. Conversely, can a government agree to be bound by another province’s rules, even if it may limit the powers of its legislature and its successors?
[7] The appellants say that the answer to these questions must be “no”. They submit that B.C.’s class action framework in s. 11 is not possible under our Constitution, as it would enable the Province to take control over the substantive civil rights of other governments. As a representative plaintiff in a multi-Crown class action, the Province of B.C. could direct litigation on behalf of other sovereign provinces and territories, thereby binding those other governments to its decisions, infringing their litigation autonomy and violating their legislative sovereignty to enact potentially contradictory laws. The appellants argue that this cannot be reconciled with our Constitution, which restrains the territorial reach of provincial legislation to matters “[i]n each Province” (Constitution Act, 1867, s. 92).
[8] The courts in these proceedings have disagreed. They concluded s. 11 of the ORA creates a procedural mechanism which presumptively authorizes B.C. to act as a representative plaintiff in opioid-related proceedings on behalf of other Canadian governments who choose to participate. They held that this mechanism falls under the Province’s authority over “[t]he Administration of Justice in the Province” (s. 92(14) of the Constitution Act, 1867), and is meaningfully connected to B.C. without undermining any other government’s sovereignty.
[9] I agree with the courts below. As I shall explain, I do not accept the appellants’ position that the legislation deals with substantive, rather than procedural, rights. The purpose and effect of the challenged provision is to create a procedural mechanism to promote litigation efficiency by joining the claims of consenting Canadian Crowns into a single proceeding, while ensuring that each Crown’s claims will be decided in accordance with their own substantive law. Section 11 falls within the Province’s authority over the “Administration of Justice” under s. 92(14) of the Constitution Act, 1867.
[10] Section 11 of the ORA also properly respects the territorial limits under s. 92(14), which requires that the Province’s legislative powers be exercised “in the Province”. It is meaningfully connected to B.C. by providing a procedural tool that only applies to one proceeding before B.C.’s courts and affects foreign Crowns only if they consent to have their common issues resolved together. Each of the other Crowns’ substantive claims remain under the control of their own legislatures; their legislative sovereignty is respected.
[11] I would dismiss the appeal.
II. Background
[12] The emergence of national class actions in Canada reflects the harmony struck by the chords of intergovernmental cooperation and interjurisdictional comity which run throughout our federation’s constitutional structure. The three well-established goals underlying class actions — efficiency, access to justice and deterrence — recognized by this Court in Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, and Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184, may, in some cases, require intergovernmental cooperation in a federalist system.
[13] Federalism is one of the central organizing themes of our Constitution (Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at para. 57). It is “a foundational principle” of our Constitution, meant “to reconcile diversity with unity” and to “foster cooperation between Parliament and the provincial legislatures for the common good” (References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175 (GGPPA Reference), at para. 48).
[14] Our Court has recognized that cooperation and comity are increasingly necessary to the operation of a federal society in the 21st century (see, e.g., Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 24). Different levels of government are encouraged to work together to establish interlocking and even overlapping regulatory regimes to solve interjurisdictional problems (see, e.g., Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, at paras. 57-62). Courts are expected to give comity — or full faith and credit — to recognize one another’s judgments on subjects which cross provincial boundaries (see, e.g., Hunt v. T&N plc, 1993 CanLII 43 (SCC), [1993] 4 S.C.R. 289, at p. 324). Anything less would “fly in the face of the obvious intention of the Constitution to create a single country” (Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC), [1990] 3 S.C.R. 1077, at p. 1099).
[15] The rise of national class actions is an example of this essential cooperation. While class actions have been available at common law since the 17th century, class proceedings statutes were first enacted by provincial legislatures in the late 20th century, simplifying the aggregation, prosecution, and determination of these claims through a valuable set of procedural tools (Dutton, at paras. 19 and 26; Hollick, at para. 13). The lack of cooperation by governments and parties within these new procedural mechanisms, however, sometimes resulted in overlapping class actions in multiple provinces covering the same claims, the same defendants, and even the same plaintiffs.
[16] In response to these cross-jurisdictional problems, several provinces changed their class proceedings statutes to clarify that their superior courts could certify an action with a class of plaintiffs that included residents outside the province (see W. K. Branch and M. P. Good, Class Actions in Canada (2nd ed. (loose-leaf)), at §§ 12:2-12:9). Nearly all provinces now have legislation enabling non-resident plaintiffs to have their claims adjudicated efficiently in a single proceeding before one superior court, whose judgment will be respected and enforced by their “home” courts.
[17] These national class actions, facilitated by cooperative provincial legislative schemes and the judicial recognition of a superior court’s judgments under the rules of private international law, help Canadians to deal with products, people, and problems that cross jurisdictional boundaries. Moreover, multi-Crown class actions are an example of horizontal intergovernmental coordination between provinces and the federal government in dealing with complex issues that cross jurisdictional borders.
[18] The opioid epidemic facing Canada is a tragic example of the border-crossing problems which engage such interjurisdictional cooperation and comity. The scale and scope of the opioid crisis are well known (see, e.g., R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at paras. 93-97, per Moldaver J.; Special Advisory Committee on the Epidemic of Opioid Overdoses, Opioid- and Stimulant-related Harms in Canada, September 2024 (online)). Opioids are a powerful class of painkillers. While some opioids have become associated with the illicit drug trade, most have legitimate medical uses when properly administered. When used improperly, however, opioids can cause addiction.
[19] The pleadings claim Canada has experienced high numbers of opioid-related addictions, illnesses and deaths and that the epidemic has affected every province and territory in Canada, devastating communities, families and lives nationwide.
[20] Faced with the opioid epidemic, in 2018 B.C. brought a claim against 49 manufacturers, marketers, and distributors of opioid products, which it alleged had contributed to the opioid epidemic by falsely marketing their products as being less addictive and less prone to abuse, tolerance, and withdrawal than other pain medications. B.C. alleged the commission of several common law torts, including negligence, unjust enrichment, fraudulent misrepresentation, and breaches of s. 52 of the Competition Act, R.S.C. 1985, c. C-34.
[21] B.C. started this proceeding as a proposed class action under B.C.’s Class Proceedings Act, R.S.B.C. 1996, c. 50 (CPA), seeking certification with itself as the representative plaintiff acting on behalf of a class consisting of all federal, provincial, and territorial governments and agencies that had paid healthcare, pharmaceutical and treatment costs related to opioids.
[22] Soon after, legislation was introduced to create a direct, statutory cause of action for B.C. in the litigation it had begun. It introduced new evidentiary rules and other procedural mechanisms modeled on B.C.’s former Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30 (TRA), upheld by this Court in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473 (see Legislative Assembly of British Columbia, Official Report of Debates (Hansard), No. 150, 3rd Sess., 41st Parl., October 1, 2018, at pp. 5331-32 (Hon. David Eby)). For example, these rules allow statistical information as admissible evidence to prove causation (s. 5), relieve the government from proving the cause of any particular individual’s opioid-related injuries (s. 2(5)(a)), and require the court to presume that those individuals would not have used opioids without the defendants’ actions (s. 3(2)).
[23] Unlike the former TRA, however, s. 11(1)(b) of the ORA authorizes the government of B.C., in its existing proceeding, to “bring an action on behalf of a class consisting of” other provincial, territorial and federal governments in Canada and their healthcare agencies (as B.C. had already done), unless those governments opt out of the class under s. 16 of the CPA.
[24] The ORA came into force a few months after B.C. had started its proceeding based on the common law and Competition Act causes of action. B.C. then changed its notice of civil claim to incorporate s. 11 expressly into its pleadings. Its latest amended civil claim now also proposes two sub-classes of plaintiffs: one for all governments relying on the common law and Competition Act causes of action; and another for “governments that have legislation specifically directed at recovery of damages and healthcare costs arising from the Opioid Epidemic” (A.R., vol. IV, at p. 167; A.R., vol. VII, at p. 136).
[25] This second sub-class reflects the fact that nearly all provinces and territories in Canada have since enacted their own version of an opioid healthcare recovery statute similar to B.C.’s ORA.[1] Each statute has a provision that is substantially similar to s. 11 of B.C.’s ORA (see, e.g., Opioid Damages and Health Care Costs Recovery Act, S.A. 2019, c. O-8.5, s. 13; Opioid Damages and Health Care Costs Recovery Act, 2019, S.O. 2019, c. 17, Sch. 2, s. 12). Many have an additional provision stating that if a class action has been commenced by another province, the government’s own claim is subject to that jurisdiction’s procedural rules while maintaining the substantive rights within its own ORA-type legislation (see, e.g., Alberta’s Opioid Damages and Health Care Costs Recovery Act, s. 12; Ontario’s Opioid Damages and Health Care Costs Recovery Act, 2019, s. 11).
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