The Opioid Damages and Health Care Costs Recovery Act

The Opioid Damages and Health Care Costs Recovery Act, C.C.S.M. c. O55 (Assented to December 3, 2020) bilingual version (HTML) Table of Contents Section 1 Definitions and interpretation 2 Direct action by Crown 3 Recovery of cost of health care benefits on aggregate basis 4 Joint and several liability 5 Population-based evidence 6 Limitation periods 7 Liability based on risk contribution 8 Apportionment of liability in opioid-related wrongs 9 Regulations 10 Retroactive effect 11 Crown as class member 12 Class proceeding 13 Effect of existing agreements 14 C.C.S.M. reference 15 Coming into force Schedule HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows: Definitions 1(1) The following definitions apply in this Act. "cost of health care benefits" means the sum of (a) the present value of the total expenditure by His Majesty in right of Manitoba for health care benefits provided for insured persons as a result of opioid-related disease, injury or illness or the risk of opioid-related disease, injury or illness; and (b) the present value of the estimated total expenditure by His Majesty in right of Manitoba for health care benefits that could reasonably be expected to be provided for those insured persons as a result of opioid-related disease, injury or illness or the risk of opioid-related disease, injury or illness. (« coût des services de soins de santé ») "disease, injury or illness" includes problematic substance use, addiction and general deterioration of health. (« maladie, blessure ou affection ») "health care benefits" means (a) benefits, hospital services, medical services, out-patient services and other health services as those terms are defined in The Health Services Insurance Act ; (b) goods and services provided in a personal care home that are set out as personal care services in the Personal Care Services Insurance and Administration Regulation , Manitoba Regulation 52/93; (c) accommodations, goods and services provided by the Addictions Foundation of Manitoba; (d) a benefit as defined in The Prescription Drugs Cost Assistance Act ; (e) public health services as defined in The Public Health Act ; (f) health services as defined in The Regional Health Authorities Act or any successor Act, except to the extent those services are already covered under clauses (a) through (e); and (g) other expenditures by His Majesty in right of Manitoba, made directly or through one or more agents or other intermediate bodies, for programs, services, benefits or similar matters associated with disease, injury or illness. (« services de soins de santé ») "insured person" means (a) a person, including a deceased person, for whom health care benefits have been provided; or (b) a person for whom health care benefits could reasonably be expected to be provided. (« assuré ») "joint venture" means an association of two or more persons, if (a) the relationship among the persons does not constitute a corporation, partnership or trust; and (b) the persons each have an undivided interest in assets of the association. (« coentreprise ») "manufacture" includes, for an opioid product, the production, assembly and packaging of the opioid product. (« fabrication ») "manufacturer" means a person who manufactures or has manufactured an opioid product and a person who, in the past or currently, (a) causes, directly or indirectly, through arrangements with contractors, subcontractors, licensees, franchisees or others, the manufacture of an opioid product; (b) for any fiscal year of the person, derives at least 10% of revenues, determined on a consolidated basis in accordance with generally accepted accounting principles in Canada, from the manufacture or promotion of opioid products by that person or by other persons; (c) engages in or causes, directly or indirectly, other persons to engage in promoting an opioid product; or (d) is a trade association primarily engaged in (i) advancing the interests of manufacturers, (ii) promoting an opioid product, or (iii) causing, directly or indirectly, other persons to engage in promoting an opioid product. (« fabricant ») "opioid product" means any product that contains (a) a drug set out in the Schedule; or (b) a drug prescribed by regulation. (« produit opioïde ») "opioid-related disease, injury or illness" means disease, injury or illness caused or contributed to by an individual's use or exposure to an opioid product, whether the opioid product is (a) in the form in which it was manufactured; (b) combined with another drug or substance; or (c) used or, in the case of exposure, is present in a form or manner other than (i) as prescribed or advised by a practitioner, or (ii) as recommended by the manufacturer of that opioid product. (« maladie, blessure ou affection liée aux opioïdes ») "opioid-related wrong" means (a) a tort that is committed in Manitoba by a manufacturer or wholesaler that causes or contributes to opioid-related disease, injury or illness; or (b) in an action under subsection 2(1), a breach, by a manufacturer or wholesaler, of a common law, equitable or statutory duty or obligation owed to persons in Manitoba who have used or been exposed to or might use or be exposed to an opioid product. (« faute liée aux opioïdes ») "person" includes a trust, joint venture or trade association. (« personne ») "practitioner" means a person who (a) is authorized under The Regulated Health Professions Act or an Act listed in Schedule 2 of The Regulated Health Professions Act or The Veterinary Services Act to prescribe or advise on the therapeutic value, contents and hazards of a drug within the meaning of The Pharmaceutical Act ; and (b) is not prohibited from prescribing a drug that is an opioid product. (« praticien ») "promote" or "promotion" includes, for an opioid product, (a) the marketing of the opioid product, whether direct or indirect; (b) the distribution or sale of the opioid product; and (c) any research with respect to the opioid product. (« promotion » ou « promouvoir ») "type of opioid product" means an opioid product in the form of a pill, a capsule, an oral liquid, a powder, an injectable, a topical or a combination of any of these. (« type de produit opioïde ») "use or exposure" , in relation to an opioid product, means ingestion, inhalation, injection, application or assimilation of the opioid product, whether intentional or otherwise. (« consommation ou exposition ») "wholesaler" means a person who distributes, sells or offers for sale opioid products (a) to pharmacies, distributors or other persons for resale; or (b) to hospitals, facilities or care centres for patient use. (« grossiste ») "Manufacturer" — exclusions 1(2) The definition "manufacturer" in subsection (1) does not include (a) an individual; (b) a wholesaler or retailer of opioid products who is not related to (i) a person who manufactures an opioid product, or (ii) a person described in clause (a) of the definition "manufacturer"; or (c) a person who (i) is a manufacturer only because clause (b) or (c) of the definition "manufacturer" applies to the person, and (ii) is not related to (A) a person who manufactures an opioid product, or (B) a person described in clause (a) or (d) of the definition "manufacturer". Meaning of "related" 1(3) For the purposes of subsection (2), a person is related to another person if, directly or indirectly, the person is (a) an affiliate, as defined in The Corporations Act , of the other person; or (b) an affiliate of the other person or an affiliate of an affiliate of the other person. Meaning of "affiliate" 1(4) For the purposes of clause (3)⁠(b), a person is deemed to be an affiliate of another person if the person (a) is a corporation and the other person, or a group of persons not dealing with each other at arm's length of which the other person is a member, owns a beneficial interest in shares of the corporation (i) carrying at least 50% of the votes for the election of directors of the corporation, and the votes carried by the shares are sufficient, if exercised, to elect a director of the corporation, or (ii) having a fair market value, including a premium for control if applicable, of at least 50% of the fair market value of all the issued and outstanding shares of the corporation; or (b) is a partnership, trust or joint venture, and the other person, or a group of persons not dealing with each other at arm's length of which the other person is a member, has an ownership interest in the assets of that person that entitles the other person or group of persons to receive at least 50% of the profits or at least 50% of the assets on the dissolution, winding-up or termination of the partnership, trust or joint venture. Deemed affiliate 1(5) For the purposes of clause (3)⁠(b), a person is deemed to be an affiliate of another person if the other person, or a group of persons not dealing with each other at arm's length of which the other person is a member, has any direct or indirect influence that, if exercised, would result in control in fact of that person, except if the other person or group of persons deals at arm's length with that person and derives influence solely as a lender. Formula for determining market share 1(6) For the purposes of determining the market share of a defendant for a type of opioid product sold in Manitoba, the court shall calculate the defendant's market share for the type of opioid product in accordance with the following formula: dms = 100% × dm/MM In this formula, dms is the defendant's market share for the type of opioid product from the date of the earliest opioid-related wrong committed by that defendant to the date of trial; dm is the quantity of the type of opioid product manufactured or promoted by the defendant that is distributed or sold within Manitoba from the date of the earliest opioid-related wrong committed by that defendant to the date of trial; MM is the quantity of the type of opioid product manufactured or promoted by all manufacturers or wholesalers that is purchased or dispensed within Manitoba for the purpose of providing health care benefits from the date of the earliest opioid-related wrong committed by the defendant to the date of trial. Direct action 2(1) His Majesty in right of Manitoba has a direct and distinct action against a manufacturer or wholesaler to recover the cost of health care benefits caused or contributed to by an opioid-related wrong. Action not subrogated 2(2) An action under subsection (1) is brought by His Majesty in right of Manitoba in its own right and not on the basis of a subrogated claim. Action independent of recovery by others 2(3) In an action under subsection (1), His Majesty in right of Manitoba may recover the cost of health care benefits whether or not there has been any recovery by other persons who have suffered damage caused or contributed to by the opioid-related wrong committed by the defendant. Recovery for individuals or on aggregate basis 2(4) In an action under subsection (1), His Majesty in right of Manitoba may recover the cost of health care benefits (a) for particular individual insured persons who have suffered damage caused or contributed to by the use of or exposure to a type of opioid product; or (b) on an aggregate basis, for a population of insured persons who have suffered damage caused or contributed to by the use of or exposure to a type of opioid product. Action brought on aggregate basis 2(5) If His Majesty in right of Manitoba seeks in an action under subsection (1) to recover the cost of health care benefits on an aggregate basis, (a) it is not necessary (i) to identify particular individual insured persons, (ii) to prove the cause of opioid-related disease, injury or illness in any particular individual insured person, or (iii) to prove the cost of health care benefits for any particular individual insured person; (b) the health care records and documents of particular individual insured persons or the documents relating to the provision of health care benefits for particular individual insured persons are not compellable except as provided under a rule of law, practice or procedure that requires the production of documents relied on by an expert witness; (c) a person is not compellable to answer questions with respect to the health of, or the provision of health care benefits for, particular individual insured persons; (d) despite clauses (b) and (c), on motion by a defendant, the court may order discovery of a statistically meaningful sample of the documents referred to in clause (b), and the order shall include directions concerning the nature, level of detail and type of information to be disclosed; and (e) if an order is made under clause (d), the identity of particular individual insured persons shall not be disclosed, and all identifiers that disclose or may be used to trace the names or identities of any particular individual insured persons shall be deleted from any documents before the documents are disclosed. Recovery of cost of health care benefits on aggregate basis 3(1) In an action under subsection 2(1) for the recovery of the cost of health care benefits on an aggregate basis, subsection (2) applies if His Majesty in right of Manitoba proves, on a balance of probabilities, that, in respect of a type of opioid product, (a) the defendant breached a common law, equitable or statutory duty or obligation owed to insured persons who have used or been exposed to or might use or be exposed to the type of opioid product; (b) using the type of opioid product can cause or contribute to disease, injury or illness; and (c) during all or part of the period of the breach referred to in clause (a), the type of opioid product manufactured or promoted by the defendant was offered for distribution or sale in Manitoba. Presumptions 3(2) Subject to subsections (1) and (4), the court shall presume that (a) the population of insured persons who used or were exposed to the type of opioid product manufactured or promoted by the defendant would not have used or been exposed to the product but for the breach referred to in clause (1)⁠(a); and (b) the use or exposure described in clause (a) caused or contributed to disease, injury or illness or the risk of disease, injury or illness in a portion of the population described in that clause. Effect of presumptions 3(3) If the presumptions under clauses (2)⁠(a) and (b) apply, (a) the court shall determine on an aggregate basis the cost of health care benefits provided after the date of the breach referred to in clause (1)⁠(a) resulting from use or exposure to the type of opioid product; and (b) each defendant to which the presumptions apply is liable for the proportion of the aggregate cost referred to in clause (a) equal to its market share in the type of opioid product. Reduction or readjustment of liability 3(4) The amount of a defendant's liability assessed under clause (3)⁠(b) may be reduced, or the proportions of liability assessed under clause (3)⁠(b) readjusted among the defendants, to the extent that a defendant proves, on a balance of probabilities, that the breach referred to in clause (1)⁠(a) did not cause or contribute to the use or exposure referred to in clause (2)⁠(a) or to the disease, injury or illness or risk of disease, injury or illness referred to in clause (2)⁠(b). Joint and several liability 4(1) Two or more defendants in an action under subsection 2(1) are jointly and severally liable for the cost of health care benefits if (a) those defendants jointly breached a duty or obligation described in the definition "opioid-related wrong" in subsection 1(1); and (b) as a consequence of the breach described in clause (a), at least one of those defendants is held liable in the action under subsection 2(1) for the cost of those health care benefits. Joint breach 4(2) For the purposes of an action under subsection 2(1), two or more manufacturers or wholesalers, whether or not they are defendants in the action, are deemed to have jointly breached a duty or obligation described in the definition "opioid-related wrong" in subsection 1(1) if (a) one or more of those manufacturers or wholesalers are held to have breached the duty or obligation; and (b) at common law, in equity or under an enactment, those manufacturers or wholesalers would be held (i) to have conspired or acted in concert with respect to the breach, (ii) to have acted in a principal and agent relationship with each other with respect to the breach, or (iii) to be jointly or vicariously liable for the breach if damages would have been awarded to a person who suffered damages as a consequence of the breach. Population-based evidence 5 Statistical information and information derived from epidemiological, sociological and other relevant studies, including information derived from sampling, is admissible as evidence for the purposes of establishing causation and quantifying damages or the cost of health care benefits respecting an opioid-related wrong in an action (a) brought by or on behalf of a person, in the person's own name or as a member of a class of persons under The Class Proceedings Act ; or (b) under subsection 2(1). Limitation periods 6(1) No action or proceeding that is commenced by His Majesty in right of Manitoba for the recovery of the cost of health care benefits or for damages alleged to have been caused or contributed to by an opioid-related wrong, or proceeding described in section 11, is barred under The Limitations Act or any other Act if the action or proceeding was commenced before the coming into force of this section or within 15 years after it came into force. Certain proceedings revived 6(2) An action or proceeding described in subsection (1) for damages alleged to have been caused or contributed to by an opioid-related wrong is revived if the action or proceeding was dismissed before the coming into force of this section merely because it was held by a court to be barred under or extinguished by The Limitations Act or any other Act. S.M. 2021, c. 44, s. 43 . Liability based on risk contribution 7(1) This section applies to an action for the recovery of the cost of health care benefits or for damages alleged to have been caused or contributed to by an opioid-related wrong, other than an action for the recovery of the cost of health care benefits on an aggregate basis. Two or more defendants 7(2) If His Majesty in right of Manitoba is unable to establish which defendant caused or contributed to the use or exposure described in clause (b) and, as a result of a breach of a common law, equitable or statutory duty or obligation, (a) one or more defendants causes or contributes to a risk of disease, injury or illness by making a type of opioid product available to insured persons; and (b) an insured person has used or been exposed to the type of opioid product referred to in clause (a) and suffers disease, injury or illness as a result of the use or exposure; the court may find each defendant that caused or contributed to the risk of disease, injury or illness liable for a proportion of the damages or cost of health care benefits incurred, equal to the proportion of its contribution to that risk of disease, injury or illness. Considerations 7(3) The court may consider the following in apportioning liability under subsection (2): 1. The length of time a defendant engaged in the conduct that caused or contributed to the risk of disease, injury or illness. 2. The market share a defendant had in the type of opioid product that caused or contributed to the risk of disease, injury or illness. 3. The degree of potency of the opioid product manufactured or promoted by a defendant. 4. The amount spent by a defendant on promoting the type of opioid product that caused or contributed to the risk of disease, injury or illness. 5. The degree to which a defendant collaborated or acted in concert with other manufacturers or wholesalers in any conduct that caused, contributed to or aggravated the risk of disease, injury or illness. 6. The extent to which a defendant conducted tests and studies to determine the risk of disease, injury or illness resulting from use of or exposure to the type of opioid product. 7. The extent to which a defendant assumed a leadership role in manufacturing or promoting the type of opioid product. 8. The efforts a defendant made to warn practitioners and the public about the risk of disease, injury or illness resulting from use of or exposure to the type of opioid product. 9. The extent to which a defendant continued manufacturing or promoting the type of opioid product after it knew or ought to have known the risk of disease, injury or illness resulting from use of or exposure to the type of opioid product. 10. The extent to which a defendant continued promoting the type of opioid product after it knew or ought to have known that the amount or dosage of the type of opioid product promoted did not reasonably reflect the health needs of the population of insured persons who were likely to use or be exposed to the type of opioid product. 11. Affirmative steps that a defendant took to reduce the risk of disease, injury or illness to the public. 12. Other considerations considered relevant by the court. Apportionment of liability in opioid-related wrongs 8(1) This section does not apply to a defendant in respect of whom the court has made a finding of liability under section 7. Action or proceeding for contribution 8(2) A defendant who is found liable for an opioid-related wrong may commence, against one or more of the defendants found liable for that wrong in the same action, an action or proceeding for contribution toward the cost of health care benefits or the payment of damages caused or contributed to by that wrong. Action or proceeding may be commenced even if damages or costs not paid 8(3) Subsection (2) applies whether or not the defendant commencing an action or proceeding under that subsection has paid all or any of the cost of health care benefits or the damages caused or contributed to by the opioid-related wrong. Factors for apportioning liability and contributions 8(4) In an action or proceeding described in subsection (2), the court may apportion liability and order contribution among each of the defendants in accordance with the considerations listed in subsection 7(3). Regulations 9 The Lieutenant Governor in Council may make regulations (a) prescribing drugs for the purposes of clause (b) of the definition "opioid product" in subsection 1(1); (b) defining any word or expression used but not defined in this Act; (c) respecting any matter necessary or advisable to carry out the purposes of this Act. Retroactive effect 10 A provision of this Act has the retroactive effect necessary to give the provision full effect for all purposes, including allowing an action to be brought under subsection 2(1) arising from an opioid-related wrong, whenever the opioid-related wrong occurred. Crown as class member 11 If a proceeding that includes a claim for the recovery of the cost of health care benefits, or for damages, alleged to have been caused or contributed to by an opioid-related wrong is commenced by the Crown in right of Canada, the Crown in right of a province of Canada or the Government of a territory of Canada on behalf of a class or proposed class of which His Majesty in right of Manitoba is a member or proposed member and is ongoing as of the date this section comes into force, any such claim made on behalf of Manitoba shall be subject to this Act, other than those provisions or portions of this Act constituting procedural law, in accordance with the rules regarding conflict of laws. Class proceeding 12(1) His Majesty in right of Manitoba may, under The Class Proceedings Act , commence an action under subsection 2(1) on behalf of a class consisting of (a) one or more of the Crown in right of Canada, the Crown in right of a province of Canada and the Government of a territory of Canada; and (b) a federal or provincial government payment agency that makes reimbursement for the cost of services that are in the nature of health care benefits within the meaning of this Act. Opting out permitted 12(2) Nothing in subsection (1) prevents a member of the class described in that subsection from opting out of the class proceeding in accordance with The Class Proceedings Act . Definition — "proceeding" 13(1) In subsections (2) and (3), "proceeding" means a proceeding (a) in relation to an action under subsection 2(1), including an action commenced under The Class Proceedings Act ; or (b) described in section 11 of this Act. (« procédure ») Effect of prior agreements 13(2) Despite any prior agreement that purports to bind His Majesty in right of Manitoba in relation to compensation arising from an opioid-related wrong, (a) His Majesty in right of Manitoba is not barred from commencing or participating in a proceeding; (b) the evidence that may be brought against a party to the agreement in the course of a proceeding is not limited; and (c) the liability of, or the amount of compensation payable by, a party to the agreement in relation to an opioid-related wrong that is the subject of a proceeding is not limited. Deducting compensation 13(3) If an agreement described in subsection (2) has been finalized by receiving the consent of all parties to the agreement and all necessary court approvals, if any, before the date this section comes into force, any compensation received by His Majesty in right of Manitoba under the agreement must be deducted from any compensation received by it as a result of a proceeding. No proceedings 13(4) No compensation is payable by His Majesty in right of Manitoba and proceedings must not be commenced or continued to claim compensation from His Majesty in right of Manitoba or to obtain a declaration that compensation is payable by it as a result of the voiding of an agreement described in subsection (2). Order not enforceable 13(5) A declaratory or other order of any court providing that compensation is payable by His Majesty in right of Manitoba as a result of the voiding of an agreement described in subsection (2) is not enforceable against His Majesty in right of Manitoba. C.C.S.M. reference 14 This Act may be referred to as chapter O55 of the Continuing Consolidation of the Statutes of Manitoba . Coming into force 15 This Act comes into force on the day it receives royal assent. SCHEDULE (Subsection 1(1)) A product that contains a drug containing any of the following active ingredients is an opioid product for the purposes of this Act: 1. Anileridine. 2. Buprenorphine, including but not limited to buprenorphine hydrochloride. 3. Butorphanol, including but not limited to butorphanol tartrate. 4. Codeine, except for those products referred to in subsection 36(1) of the Narcotic Control Regulations (Canada), including but not limited to codeine phosphate. 5. Diacetylmorphine. 6. Fentanyl, including but not limited to fentanyl citrate. 7. Hydrocodone, including but not limited to hydrocodone bitartrate. 8. Hydromorphone, including but not limited to hydromorphone hydrochloride. 9. Levorphanol. 10. Meperidine, including but not limited to meperidine hydrochloride. 11. Methadone, including but not limited to methadone hydrochloride. 12. Morphine, including but not limited to morphine hydrochloride and morphine sulfate. 13. Nalbuphine. 14. Normethadone, including but not limited to normethadone hydrochloride. 15. Opium, including but not limited to opium and belladonna. 16. Oxycodone, including but not limited to oxycodone hydrochloride. 17. Oxymorphone, including but not limited to oxymorphone hydrochloride. 18. Pentazocine, including but not limited to pentazocine hydrochloride and pentazocine lactate. 19. Propoxyphene. 20. Remifentanil. 21. Sufentanil. 22. Tapentadol, including but not limited to tapentadol hydrochloride. 23. Tramadol, including but not limited to tramadol hydrochloride.