Supreme Court rules governments can sue opioid companies together
A landmark Supreme Court ruling lets Canada's governments file a single class-action lawsuit for drug crisis health-care costs
By Alexandra Keeler
In a landmark decision, the Supreme Court of Canada ruled Friday that a first-of-its-kind, nation-wide class action lawsuit could proceed against 49 companies alleged to have played a role in Canada’s opioid crisis.
The lawsuit, which B.C. has already launched, seeks to recover some of the health-care costs governments have incurred since 1996 in responding to the drug crisis.
The crisis has claimed more than 47,000 lives nation-wide in the last eight years alone.
“I am pleased by the Supreme Court decision affirming our right to hold pharmaceutical companies to account,” the federal Minister of Mental Health and Addictions Ya’ara Saks said in a post on social media platform X following the judgment.
“Canada intends to join this suit should it be certified,” the post said, referring to the process where a court determines whether a class-action lawsuit can proceed.
“We’ve taken action to crackdown on the predatory practices of the pharmaceutical industry — and we won’t stop now,” Saks wrote.
The judgment
The case centered on a provision of B.C.’s Opioid Damages and Health Care Costs Recovery Act — legislation implemented in 2018 by then-Attorney General David Eby.
That provision enables B.C. to file lawsuits on other governments’ behalf.
Four of the 49 companies named in the class action — Sanis Health Inc., Shoppers Drug Mart Inc., Sandoz Canada Inc., and McKesson Canada Corporation — argued the provision was an unconstitutional overreach, violating territorial limits on provinces’ legislative power and undermining the sovereignty of other governments.
In a 6-1 decision, Canada’s highest court dismissed the companies' appeal.
“National class actions, and in particular multi-Crown class actions, ensure that justice is not blocked by provincial borders,” Justice Andromache Karakatsanis wrote for the majority.
“The opioid epidemic is a stark example of a crisis that should attract cooperation and comity,” she wrote.
The court also said B.C.’s legislation respects provinces’ sovereignty, because they retain the option “to opt out and go it alone.”
However, no province has exercised this option. All 10 provinces and three territories have chosen to join B.C.’s lawsuit. In 2022, the B.C. revised its legislation to permit the federal government to join its lawsuit as well, but it has not yet done so.
The court noted in its decision that some smaller jurisdictions would be unlikely to bring lawsuits if they were required to do so alone.
“As the Attorneys General for the Northwest Territories and Prince Edward Island point out, the existence of this choice [of joining the nation-wide lawsuit] may be the only way that smaller jurisdictions could achieve recovery,” Karakatsanis wrote.
In a further show of solidarity, most Canadian provinces and territories have passed their own opioid-recovery laws modeled after B.C.’s legislation. These include provisions similar to the one challenged in this case.
The court noted that B.C.’s legislation is modeled on the province’s Tobacco Damages and Health Care Costs Recovery Act — legislation B.C. has used to sue tobacco companies for costs associated with tobacco-related harms. However, that legislation does not contain a provision comparable to the one in dispute in this case.
Some provincial governments — including B.C., Ontario and Quebec — have brought lawsuits against tobacco companies individually, while others have not commenced any litigation.
In the US, state, federal, municipal and tribal governments have pursued a similar unification strategy against pharmaceutical companies over that country’s opioid crisis. The Multidistrict Litigation process has resulted in more than $50-billion in settlements so far.
Time is money
The provinces are alleging dozens of companies contributed to Canada’s opioid crisis by downplaying the risks associated with opioids and promoting excessive distribution of these drugs.
In the wake of the Supreme Court’s decision, governments will move to have the case certified, which would then enable the case to proceed to a hearing on its merits.
In their court submissions, lawyers for the government argued the streamlined litigation process would enable governments to reduce costs, pool resources and coordinate legal strategies. They also said a united process would improve access to justice and help deter wrongdoing.
However, some of the companies argued a unified case will actually make the process less efficient.
Last November, Gordon McKee, a lawyer representing Janssen Inc. and Johnson & Johnson, argued at the B.C. Supreme Court that it would be a “monster of complexity” to conduct a single trial to determine opioid-related health-care damages for all provinces and territories.
A public relations representative for Loblaws similarly expressed concern that a unified case could increase complexity.
“We are disappointed in the outcome as this decision almost guarantees a much longer, more expensive, complex and inefficient process,” the representative told Canadian Affairs in an emailed statement.
“The Supreme Court's decision is about jurisdiction, not merit, and we remain steadfast in the view that we are improperly included in this action. We will continue to seek every opportunity to have the claims against us resolved as soon as possible,” the representative said.
Stronger together
In addition to pursuing legal action, Canadian governments have taken several other steps to address pharmaceutical companies’ role in the drug crisis.
In 2016, the National Opioid Use Guideline Group, a national task force convened by medical regulators, published the Canadian Guidelines for Safe and Effective Use of Opioids for Chronic Non-Cancer Pain. These guidelines were developed to standardize opioid prescribing practices across Canada and to ensure opioids are used appropriately for chronic, non-cancerous pain.
In 2021, Health Canada introduced stricter oversight and controls on opioid prescriptions and marketing, aiming to curb the over-prescription and misuse of opioids.
And the newly-formed Canada’s Drug Agency has faced calls to develop a nationwide strategy to address Canada’s inconsistent prescribing practices. A July report by the Canadian Drug Agency Transition Office, a temporary office charged with developing the drug agency’s mandate, called for better prescription oversight and enhanced education.
"Today’s ruling from the Supreme Court sends a clear message to all those responsible for starting the opioid addiction crisis," Alberta's Minister of Mental Health and Addiction Dan Williams told Canadian Affairs in an emailed statement. "We are coming, and we are not going to stop until those responsible pay for the damage and pain caused to families and communities across Canada."
"We will not repeat the mistakes made in the past, and as we fight against those who caused this crisis in the first place we will use any settlements to provide more treatment and recovery to people with addiction."
This article was produced through the Breaking Needles Fellowship Program, which provided a grant to Canadian Affairs, a digital media outlet, to fund journalism exploring addiction and crime in Canada. Articles produced through the Fellowship are co-published by Break The Needle and Canadian Affairs.