The Supreme Court of Canada has granted Sanis Health, Shoppers Drug Mart, Sandoz Canada, and McKesson Canada leave to appeal Sandoz Canada v British Columbia, 2023 BCCA 306. The parties are defendants in a proposed class action by the province of British Columbia (BC) under its Opioid Damages and Health Care Costs Recovery Act (the ORA). The judgment of the Court of Appeal for BC upheld a provision permitting BC to bring a class action on behalf of one or more other governments in Canada. 

Judgment granting leave issued on November 9, 2023. The progress of the appeal can be followed here: Sanis Health Inc, Shoppers Drug Mart Inc, Sandoz Canada Inc, and McKesson Canada Corporation v His Majesty the King in Right of the Province of British Columbia, Docket No. 40864.

Background

BC enacted the ORA in 2018 to allow the province to recover health care costs caused or contributed to by “opioid-related wrongs” allegedly committed by manufacturers and distributors of opioid drugs.  

Relying on authorization provided in s. 11 of the ORA, BC asserts claims not only on its own behalf but also sues on behalf of a proposed class – all federal, provincial, and territorial governments that paid healthcare, pharmaceutical, treatment and other costs related to opioids between 1996 to the present. Section 11 further provides that potential class members can opt out of the proceeding.

The defendants brought applications for a declaration that s. 11 of the ORA is constitutionally invalid and therefore of no force and effect.

In a summary trial, the trial judge dismissed the applications. On appeal, the Court of Appeal affirmed the constitutional validity of s. 11 as legislation relating to the “Administration of Justice in the Province,” which falls within provincial jurisdiction under the Constitution Act, 1867, and observed:

I agree, then, with the summary trial judge that s. 11 merely provides an additional means by which the other provinces’ respective health care recovery claims may — or may not — be pursued. The multi‑Crown proceeding represents an innovative response to the expense, time and inefficiencies involved in several separate actions. It represents a major step towards what in Canada may not be possible in the full sense — a truly national class proceeding.  

[original emphasis] 

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