B.C. in court against pharma companies in bid to certify opioid class-action lawsuit

The British Columbia Supreme Court should certify a class-action lawsuit against opioid makers on behalf of all provinces and territories to save time and money on what would otherwise be 13 nearly identical actions, a B.C. government lawyer says.

Reidar Mogerman, a lawyer for the B.C. government, told Justice Michael Brundrett on Monday the court should approve a class made of governments saddled with health-care costs related to the opioid 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," 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?"

If the judge agrees to certify provinces and territories as part of the class, the case would then move ahead as a civil trial to determine if the health-care and pharmaceutical companies were negligent and unjustly enriched by deceptively marketing opioid products.

The lawsuit alleges the defendants fraudulently misrepresented and concealed the dangers of opioids, and the action seeks damages for health-care costs recovery, Competition Act violations and other alleged misconduct.

Mogerman said the questions at the heart of the lawsuit are common across provinces and territories.

"It's not different for British Columbia," he said. "Ontario will ask the same question."

He told the judge that having a single trial examining those questions would move "the litigation way down the track in terms of how much is left for each individual plaintiff or class member to engage in," he said.

B.C. Attorney General Niki Sharma says a court hearing in Vancouver on Monday represents a "new step" in the battle against opioid makers and marketers as the province seeks to certify a class action on behalf of other jurisdictions in Canada.

Sharma says the action to obtain costs associated with the opioid crisis is a first of its kind in Canada, and one defendant, Purdue Pharma, has already settled with the province for $150 million.

Speaking outside court in Vancouver ahead of the certification hearing, Sharma says the action was started back in 2018 when Premier David Eby, who was then attorney general, put B.C. up against dozens of health care and pharmaceutical companies.

It comes even after the Supreme Court of Canada agreed this month to hear a constitutional challenge by four of the companies, who say a law allowing B.C. to recover costs on behalf of other governments is an overreach.

Sharma says the lawsuit marks a "novel approach" to speed up the process as governments seek to hold accountable companies that make, sell and market opioids for their alleged deceptive marketing of the addictive drugs.

Sharma and Minister of Mental Health and Addictions Jennifer Whiteside also issued a joint statement, calling the agreement with Purdue in June 2022 "the largest-ever government health settlement in Canadian history."

"One part of our work to address the toxic drug poisoning crisis is holding the bad actors who are fuelling this crisis — including opioid manufacturers and distributors, and their consultants — accountable," they said in the statement.

Sharma said outside court the province has been up against "numerous challenges" from the defendants, who have sought to delay the certification hearing as matters remain unresolved before Canada's high court. But a B.C. judge said an adjournment wasn't in the interests of justice.

4-week certification hearing, then possible civil trial

The province began the legal odyssey in August 2018 by passing the Opioid Damages and Health Care Costs Recovery Act, seeking costs from firms alleged to have contributed to opioid addiction.

B.C. declared a public health emergency in 2016 over the crisis, and since then nearly 13,000 people have died of overdoses in the province.

"We are holding multinational pharmaceutical companies accountable for their role in today's public health emergency," Sharma said.

"While no amount of money will ever bring back the people who have lost their lives due to toxic, unregulated drugs, our battle against the wrongful conduct of businesses and their marketing consultants is another meaningful step to address the toxic drug crisis," she said.

The certification hearing is expected to last about four weeks and a civil trial would then have to be held to determine if the companies are liable for damages.

David Klein, a lawyer who is unaffiliated with either party in the ongoing case, says he expects the defendants will argue that it's better for individual provinces to bring their own suits forward.

"I expect the defendants will say that the plan isn't adequate to advance the case," he told CBC News.

Klein says he thinks the case is likely going to be a "very long battle," likening it to a similar fight to recover health-care costs from tobacco companies.