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Brief Overview of Case
On May 25, 2023, the Supreme Court of Canada denied to hear an important appeal in the Opioid Litigation case. The denial from Canada’s top Court means that the Province of British Columbia’s claim, currently being brought as a proposed class action on behalf of a class of Canadian governments, will likely proceed regardless of the outcome of the certification hearing scheduled for the end of 2023.
The claim, originally filed in August 2018 by Camp Fiorante Matthews Mogerman LLP, Branch MacMaster LLP and Howie, Sacks and Henry LLP, seeks to recover opioid-related healthcare costs, as well as costs of addressing and abating the opioid crisis on behalf of the Province of British Columbia and a class of Canadian governments. The defendants consist of 50 manufacturers and distributors of opioids.
The April 2021 Motion to Strike Pleadings
In its proposed amended claim subject to a motion to strike, the Province sought to plead a number of causes of action as against the defendants, including negligent design, failure to warn, negligent/fraudulent misrepresentation, breach of the Competition Act, RSC, 1985, c. C-34, breach of the Food and Drugs Act, RSC 1985, c. F-27, unjust enrichment and public nuisance.
Following a multi-day hearing and a reserve judgement, in January 2022, the case management Judge ruled that the Province had met the pleadings requirements under s. 4(1)(a) of British Columbia’s Class Proceedings Act and denied the defendants’ motions to strike the causes of action for failing to plead material facts. In doing so, His Honour allowed the Province’s “novel” public nuisance claim to proceed, along with the above noted claims and those legislated under the Opioid Damages and Health Care Costs Recovery Act.
On appeal, the British Columbia Court of Appeal found that it was not plain and obvious that the Province had failed to plead material facts in support of its claims and upheld the case management Judge’s decision. However, it found that “the application of public nuisance to the underlying pleaded material facts would be a radical extension of the notion of a public nuisance to an entirely novel set circumstances”[para 203]. It struck the public nuisance claim, leaving both sides to look to the Supreme Court to weigh in on the question of whether the tort of public nuisance and the remaining claims could proceed.
Supreme Court Leave Denied
The Supreme Court gives no reasons why it denies leave to appeal applications, leaving one to conclude that it is simply not prepared to tackle the novel question of whether the tort of public nuisance should be applied in cases of product liability, such as the Opioids case at this time. For now, however, the question of whether the Province has plead material facts in support of its claims has been laid to rest, the result being that even if the Province fails to meet the remaining balance of the certification test, it can and will likely proceed as an independent claim.
What are the implications for future cases?
For future cases looking to test the boundaries of the tort of public nuisance, the test remains that as articulated in Ryan v. Victoria (City), 1999 CanLII 706 (SCC), which requires the plaintiff to show (1) a public right and (2) an unreasonable interference with that right by the defendant. For now, public nuisance causes of actions will remain in the realm of what courts deem a “public right”, such as rights of unobstructed access to public facilities, highways or navigable waterways, public rights to fish, clean air and water, or other public resources.
What are the implications of this decision?
While the Opioids case is unique in its size, subject matter and complexity, there are important lessons all class action and mass tort lawyers can take from this particular motion and subsequent appeals. Having an agreement to bind the outcome of the motion to strike pleadings to certification allowed for significant cost and judicial economy savings for both sides. For the Province, the Court of Appeal decision now enables it to proceed with its claims regardless of the outcome of the certification hearing, creating significant leverage for its case overall. While not every case will have the right set of facts or damages to proceed as a stand-alone case, it’s an important consideration for those practicing in this area of law to keep in mind.
