SNL2019 CHAPTER O-6.2 - OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY ACT

SNL2019 CHAPTER O-6.2 OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY ACT Amended: 2024 cP-12.3 s75; 2024 c25; 2024 cN-5.1 s63 CHAPTER O-6.2 AN ACT TO PROVIDE FOR DAMAGES AND RECOVERY OF OPIOID RELATED HEALTH CARE COSTS (Assented to December 6, 2019) Analysis 1. Short title 2. Definitions 3. Interpretation 4. Direct action by Crown 4.1 Direct action by Crown in right of Canada 5. Recovery of cost of health care benefits on aggregate basis 6. Joint and individual liability in action under subsection 4(1) or 4.1(1) 7. Population-based evidence to establish causation and quantify damages or costs 8. Limitation periods 9. Liability based on risk contribution 9.1 Joint and individual liability of directors and officers 10. Apportionment of liability 11. Class proceeding 12. Effect of existing agreements 13. Regulations 14. Transitional 15. Commencement Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows: Short title 1. This Act may be cited as the Opioid Damages and Health Care Costs Recovery Act. 2019 cO-6.2 s1 Back to Top Definitions 2. In this Act (a.01) "active ingredient" means an ingredient prescribed in the regulations; (a.02) "consultant" means a person who provides advisory services to (i) a wholesaler in relation to the distribution, sale or offering for sale of opioid products, or (ii) a manufacturer in relation to the sale of active ingredients or opioid products; (a) "cost of health care benefits" means (i) in relation to an action under subsection 4(1), the sum of (A) the present value of the total expenditure by the government for health care benefits provided for insured persons as a result of opioid-related disease, injury or illness, and (B) the present value of the estimated total expenditure by the government 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, and (ii) in relation to an action under subsection 4.1(1), the sum of (A) the present value of the total expenditure by the government of Canada for health care benefits provided for insured persons as a result of opioid-related disease, injury or illness, and (B) the present value of the estimated total expenditure by the government of Canada 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; (b) "disease, injury or illness" includes problematic substance use, addiction and general deterioration of health; (c) "health care benefits" means (i) in relation to an action under subsection 4(1) (A) insured services as defined in the Hospital Insurance Regulations , (B) insured services as defined in the Medical Care and Hospital Insurance Act, (C) benefit as defined in the Pharmaceutical Services Act , and (D) other expenditures by the government, 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 , and (ii) in relation to an action under subsection 4.1(1), expenditures by the government of Canada for programs, services, benefits or similar matters associated with disease, injury or illness; (d) "insured person" means (i) a person, including a deceased person, for whom health care benefits have been provided, or (ii) a person for whom health care benefits could reasonably be expected to be provided; (e) "joint venture" means an association of 2 or more persons where (i) the relationship among the persons does not constitute a corporation, partnership or trust, and (ii) the persons each have an undivided interest in assets of the association; (f) "manufacture" includes, for an opioid product, the production, assembly and packaging of the opioid product; (g) "manufacturer" means a person who manufactures or has manufactured an active ingredient or opioid product and a person who, in the past or currently, (i) causes, directly or indirectly, through arrangements with contractors, subcontractors, licensees, franchisees or others, the manufacture of an active ingredient or opioid product, (ii) 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 active ingredients or opioid products by that person or by other persons, (iii) engages in or causes, directly or indirectly, other persons to engage in promoting an active ingredient or opioid product, or (iv) i s a trade association primarily engaged in (A) advancing the interests of manufacturers, (B) promoting an active ingredient or opioid product, or (C) causing, directly or indirectly, other persons to engage in promoting an active ingredient or opioid product, but does not include (v) a wholesaler or retailer of opioid products who is not related to (A) a person who manufactures an opioid product, or (B) a person described in subparagraph (i), or (vi) a person who (A) is a manufacturer only because subparagraph (ii) or (iii) applies to the person, and (B) is not related to (I) a person who manufactures an opioid product, or (II) a person described in subparagraph (i) or (iv); (h) "opioid product" means any product that contains a drug or active ingredient prescribed in the regulations; (i) "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 (i) in the form in which it was manufactured, (ii) combined with another drug or substance, or (iii) used, or in the case of exposure is present, in a form or manner other than (A) as prescribed or advised by a practitioner, or (B) as recommended by the manufacturer of that opioid product; (j) "opioid-related wrong" means (i) a tort that is committed in the province by a manufacturer, wholesaler or consultant and that causes or contributes to opioid-related disease, injury or illness, or (ii) in an action under subsection 4(1) or 4.1(1), a breach, by a manufacturer, wholesaler or consultant, of a common law, equitable or statutory duty or obligation owed to persons in the province who have used or been exposed to or might use or be exposed to an opioid product; (k) "person" includes a trust, joint venture or trade association; (l) "practitioner" means a person who, (i) is authorized under the Dental Act, 2008, Medical Act, 2011 , Pharmacy Act, 2024 , Nurses Act or Veterinary Medical Act, 2004 to prescribe or advise on the therapeutic value, contents and hazards of a drug within the meaning of the Pharmacy Act, 2024 , and (ii) is not prohibited from prescribing a drug that is an opioid product; (m) "promote" or "promotion" includes, for an opioid product (i) the marketing of the opioid product, whether direct or indirect, (ii) the distribution or sale of the opioid product, and (iii) any research with respect to the opioid product; (n) "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; (o) "use or exposure", in relation to an opioid product, means ingestion, inhalation, injection, application or assimilation of the opioid product, whether intentional or otherwise; and (p) "wholesaler" means a person who distributes, sells or offers for sale opioid products to (i) pharmacies, distributors or other persons for resale, or (ii) hospitals or facilities for patient use. 2019 cO-6.2 s2 ; 2024 cP-12.3 s75 ; 2024 c25 s1 ; 2024 cN-5.1 s63 Back to Top Interpretation 3. (1) For the purposes of this Act, a person is related to another person where, directly or indirectly, the person is (a) an affiliate, as defined in section 2 of 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. (2) For the purposes of paragraph (1)(b), a person is considered to be an affiliate of another person where 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 the 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, where exercised, to elect a director of the corporation, or (ii) having a fair market value, including a premium for control where 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. (3) For the purposes of paragraph (1)(b), a person is considered to be an affiliate of another person where 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 direct or indirect influence that, where exercised, would result in control in fact of that person, except where the other person or group of persons deals at arm's length with that person and derives influence solely as a lender. (4) For the purposes of determining the market share of a manufacturer for a type of opioid product sold in the province, the court shall calculate the manufacturer's market share for the type of opioid product by the following formula: mms = mm/MM x 100% where mms is the manufacturer's market share for the type of opioid product from the date of the earliest opioid-related wrong committed by that manufacturer to the date of trial; mm is the quantity of the type of opioid product manufactured by the manufacturer that is distributed, sold or offered for sale within the province from the date of the earliest opioid-related wrong committed by that manufacturer to the date of trial; and MM is the quantity of the type of opioid product manufactured by all manufacturers that is purchased or dispensed within the province for the purpose of providing health care benefits from the date of the earliest opioid-related wrong committed by the manufacturer to the date of trial. (4.1) For the purposes of determining the market share of a wholesaler for a type of opioid product sold in the province, the court shall calculate the wholesaler's market share for the type of opioid product by the following formula: wms = wm /WW x 100% where wms is the wholesaler's market share for the type of opioid product from the date of the earliest opioid-related wrong committed by that wholesaler to the date of trial; wm is the quantity of the type of opioid product that is distributed, sold or offered for sale by the wholesaler within the province from the date of the earliest opioid-related wrong committed by that wholesaler to the date of trial; and WW is the quantity of the type of opioid product that is distributed, sold or offered for sale within the province for the purpose of providing health care benefits from the date of the earliest opioid-related wrong committed by the wholesaler to the date of trial. 2019 cO-6.2 s3 ; 2024 c25 s2 Back to Top Direct action by Crown 4. (1) The Crown has a direct and distinct action against a manufacturer, wholesaler or consultant to recover the cost of health care benefits caused or contributed to by an opioid-related wrong. (2) An action under subsection (1) is brought by the Crown in its own right and not on the basis of a subrogated claim. (3) In an action under subsection (1), the Crown may recover the cost of health care benefits whether or not there has been a recovery by other persons who have suffered damage caused or contributed to by the opioid-related wrong committed by the defendant. (4) In an action under subsection (1), the Crown 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. (5) Where the Crown seeks in an action under subsection (1) to recover the cost of health care benefits on an aggregate basis, (a) it is not necessary to (i) identify the particular individual insured persons, (ii) prove the cause of opioid-related disease, injury or illness in any particular individual insured person, or (iii) 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 related 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) notwithstanding paragraphs (b) and (c), on application by a defendant, the court may order discovery of a statistically meaningful sample of the documents referred to in paragraph (b) and the order shall include directions concerning the nature, level of detail and type of information to be disclosed; and (e) where an order is made under paragraph (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. 2019 cO-6.2 s4 ; 2024 c25 s3 Back to Top Direct action by Crown in right of Canada 4.1 (1) The Crown in right of Canada has a direct and distinct action against a manufacturer, wholesaler or consultant to recover the cost of health care benefits caused or contributed to by an opioid-related wrong. (2) An action under subsection (1) is brought by the Crown in right of Canada in its own right and not on the basis of a subrogated claim. (3) In an action under subsection (1), the Crown in right of Canada may recover the cost of health care benefits whether or not there has been a recovery by other persons who have suffered damage caused or contributed to by the opioid-related wrong committed by the defendant. (4) In an action under subsection (1), the Crown in right of Canada 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. (5) Where the Crown in right of Canada seeks in an action under subsection (1) to recover the cost of health care benefits on an aggregate basis, (a) it is not necessary to (i) identify the particular individual insured persons, (ii) prove the cause of opioid-related disease, injury or illness in any particular individual insured person, or (iii) 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 related 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) notwithstanding paragraphs (b) and (c), on application by a defendant, the court may order discovery of a statistically meaningful sample of the documents referred to in paragraph (b) and the order shall include directions concerning the nature, level of detail and type of information to be disclosed; and (e) where an order is made under paragraph (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. 2024 c25 s4 Back to Top Recovery of cost of health care benefits on aggregate basis 5. (1) In an action under subsection 4(1) or 4.1(1) for the recovery of the cost of health care benefits on an aggregate basis, subsection (2) applies where the Crown, or the Crown in right of Canada, as the case may be, 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 paragraph (a), the type of opioid product, manufactured or promoted by the defendant, was offered for distribution or sale in the province. (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 paragraph (1)(a); and (b) the use or exposure described in paragraph (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 paragraph (a). (3) Where the presumptions in paragraph (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 paragraph (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 paragraph (a) equal to its market share in the type of opioid product. (4) The amount of a defendant's liability assessed under paragraph (3)(b) may be reduced, or the proportions of liability assessed under paragraph (3)(b) readjusted among the defendants, to the extent that a defendant proves, on a balance of probabilities, that the breach referred to in paragraph (1)(a) did not cause or contribute to the use or exposure referred to in paragraph (2)(a) or to the disease, injury or illness or risk of disease, injury or illness referred to in paragraph (2)(b). 2019 cO-6.2 s5 ; 2024 c25 s5 Back to Top Joint and individual liability in action under subsection 4(1) or 4.1(1) 6. (1) Two or more defendants in an action under subsection 4(1) or 4.1(1) are jointly and individually liable for the cost of health care benefits where (a) those defendants jointly breached a duty or obligation described in the definition of "opioid-related wrong"; and (b) as a consequence of the breach described in paragraph (a), at least one of those defendants is held liable in the action under subsection 4(1) or 4.1(1) for the cost of those health care benefits. (2) For the purposes of an action under subsection 4(1) or 4.1(1), 2 or more manufacturers, wholesalers or consultants, whether or not they are defendants in the action, are considered to have jointly breached a duty or obligation described in the definition of "opioid-related wrong" where (a) one or more of those manufacturers, wholesalers or consultants are held to have breached the duty or obligation; and (b) at common law, in equity or under an enactment, those manufacturers, wholesalers or consultants 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 where damages would have been awarded to a person who suffered damages as a consequence of the breach. 2019 cO-6.2 s6 ; 2024 c25 s6 Back to Top Population-based evidence to establish causation and quantify damages or costs 7. 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 brought (a) 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 Actions Act ; (b) by the Crown under subsection 4(1); or (c) by the Crown in right of Canada under subsection 4.1(1). 2019 cO-6.2 s7 ; 2024 c25 s7 Back to Top Limitation periods 8. (1) An action brought by the Crown within 15 years after the coming into force of this Act 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 not barred under the Limitations Act . (1.1) An action brought by the Crown in right of Canada within 15 years after the coming into force of this Act for the recovery of the cost of health care benefits is not barred under the Limitations Act . (2) An action described in subsection (1) or (1.1) for damages alleged to have been caused or contributed to by an opioid-related wrong is revived where the action was dismissed before the coming into force of this Act only because it was held by a court to be barred under or extinguished by the Limitations Act . 2019 cO-6.2 s8 ; 2024 c25 s8 Back to Top Liability based on risk contribution 9. (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. (2) Where the Crown, or the Crown in right of Canada , as the case may be, is unable to establish which defendant caused or contributed to the use or exposure described in paragraph (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 paragraph (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. (3) The court may consider the following in apportioning liability under subsection (2): (a) the length of time a defendant engaged in the conduct that caused or contributed to the risk of disease, injury or illness; (b) the market share a defendant had in the type of opioid product that caused or contributed to the risk of disease, injury or illness; (c) the degree of potency of the opioid product manufactured or promoted by a defendant; (d) 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; (e) the degree to which a defendant collaborated or acted in concert with other manufacturers, wholesalers or consultants in any conduct that caused, contributed to or aggravated the risk of disease, injury or illness; (f) 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; (g) the extent to which a defendant assumed a leadership role in manufacturing or promoting the type of opioid product; (h) 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; (i) 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; (j) 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; (k) affirmative steps that a defendant took to reduce the risk of disease, injury or illness to the public; and (l) other considerations considered relevant by the court. 2019 cO-6.2 s9 ; 2024 c25 s9 Back to Top Joint and individual liability of directors and officers 9.1 (1) A director or officer of a corporation who directs, authorizes, assents to, acquiesces in or participates in an opioid-related wrong committed by the corporation is jointly and individually liable with the corporation for the cost of health care benefits or damages caused or contributed to by the opioid-related wrong. (2) Subsection (1) applies whether or not an action against the corporation for recovery of the cost of health care benefits or damages has been commenced or concluded. (3) A director or officer is not liable under subsection (1) where the director or officer proves, on a balance of probabilities, that the director or officer (a) d id not know, and in the exercise of reasonable diligence could not have known, that the corporation was committing an opioid-related wrong; or (b) exercised reasonable diligence to prevent the corporation from committing the opioid-related wrong. 2024 c25 s10 Back to Top Apportionment of liability 10. (1) This section does not apply to a defendant in respect of whom the court has made a finding of liability under section 9. (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. (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. (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 9(3). 2019 cO-6.2 s10 Back to Top Class proceeding 11. (1) The Crown may, under the Class Actions Act , commence an action under subsection 4(1) on behalf of a class consisting of (a) one or more of the Crown, 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 costs of services that are in the nature of health care benefits within the meaning of this Act. (2) Nothing in subsection (1) prevents a member of a class described in that subsection from opting out of the class proceeding in accordance with the Class Actions Act . 2019 cO-6.2 s11 Back to Top Effect of existing agreements 12. (1) In subsections (2) and (3), "proceeding" means a proceeding (a) in relation to an action taken under subsection 4(1); or (b) continued as described in section 14. (2) Notwithstanding any prior agreement that purports to bind the Crown in relation to compensation arising from an opioid-related wrong, (a) the Crown is not barred from commencing or continuing 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. (3) Where an agreement described in subsection (2) has been finalized by receiving consent of all parties to the agreement and all necessary court approvals, where any, before this Act comes into force, any compensation received by the Crown under the agreement shall be deducted from any compensation received by the Crown as a result of a proceeding. (4) Compensation is not payable by the Crown and proceedings shall not be commenced or continued to claim compensation from the Crown or to obtain a declaration that compensation is payable by the Crown as a result of the voiding of an agreement described in subsection (2). 2019 cO-6.2 s12 Back to Top Regulations 13. The Lieutenant-Governor in Council may make regulations (a.01) prescribing active ingredients for the purposes of paragraph 2(a.01 ); (a) prescribing drugs for the purposes of paragraph 2(h); (b) defining a word or phrase used but not defined in the Act; and (c) generally, to give effect to this Act. 2019 cO-6.2 s13 ; 2024 c25 s11 Back to Top Transitional 14. Where a proceeding in relation to an opioid-related wrong is commenced by or on behalf of the Crown and is ongoing at the time this Act comes into force (a) the proceeding shall continue in accordance with this Act; (b) a step in the proceeding completed, and an order made, before this Act comes into force continues to have effect unless, (i) the step or order would be inconsistent with this Act, or (ii) the court orders otherwise; and (c) a step in the proceeding that began but was not completed before this section comes into force shall be completed in accordance with this Act. 2019 cO-6.2 s14 Back to Top Commencement 15. (1) This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council. (2) When brought into force under subsection (1), 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 4(1) arising from an opioid-related wrong, whenever the opioid-related wrong occurred. (In force Dec. 27/24) 2019 cO-6.2 s15