Opioid Damages and Health Care Costs Recovery Act, SS 2020, c 32

1 OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY c 32 The Opioid Damages and Health Care Costs Recovery Act being Chapter 32 of the Statutes of Saskatchewan, 2020 (effective July 3, 2020) as amended by the Statutes of Saskatchewan, 2022, c 27 NOTE: This consolidation is not official. Amendments have been incorporated for convenience of reference and the original statutes and regulations should be consulted for all purposes of interpretation and application of the law. In order to preserve the integrity of the original statutes and regulations, errors that may have appeared are reproduced in this consolidation. 2 c 32 OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY Table of Contents 1 Short title 8 Liability based on risk contribution 2 Definitions and interpretation 9 Apportionment of liability in opioid‑related wrongs 3 Direct action by Government 10 Regulations 4 Recovery of cost of health care benefits on 11 Retroactive effect aggregate basis 12 If proceedings already commenced 5 Joint and several liability in an action 13 Effect of existing agreements under subsection 3(1) 14 RSS 1978, c H‑0.0001 amended 5.1 Joint and several liability of directors and officers 15 Coming into force 6 Population‑based evidence to establish causation and quantify damages or cost Schedule 7 Limitation periods 3 OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY c 32 Chapter 32 An Act respecting Opioid Damages and Health Care Costs Recovery and making related amendments to The Health Administration Act Short title 1 This Act may be cited as The Opioid Damages and Health Care Costs Recovery Act. Definitions and interpretation 2(1) In this Act: “consultant” means a person who, in the course of providing services to a manufacturer or wholesaler, assists the manufacturer or wholesaler in designing, recommending or implementing a strategy to promote an opioid product; “cost of health care benefits” means 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 or the risk 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 insured persons as a result of opioid‑related disease, injury or illness or the risk of opioid‑related disease, injury or illness; “disease, injury or illness” includes problematic substance use, addiction and general deterioration of health; “health care benefits” means: (a) payments made pursuant to The Saskatchewan Medical Care Insurance Act or the regulations made pursuant to that Act, on behalf of beneficiaries as defined in that Act; (b) payments made pursuant to The Saskatchewan Hospitalization Act, as that Act existed on or before August 2, 2002, on behalf of beneficiaries as defined in that Act; (c) expenditures made pursuant to The Prescription Drugs Act or the regulations made pursuant to that Act, on behalf of residents as defined in that Act; and (d) other payments or expenditures made for programs, services, benefits or similar matters associated with disease, injury or illness made: (i) directly by the Government; (ii) by a body pursuant to any enactment, including but not limited 4 c 32 OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY to: (A) regional health authorities and health care organizations as defined in The Regional Health Services Act, as that Act existed on or before December 3, 2017; (B) district health boards established or deemed to have been established pursuant to The Health Districts Act and affiliates as defined in that Act; (C) the Saskatchewan Cancer Foundation as defined in The Cancer Foundation Act, as that Act existed on or before January 1, 2007; (D) the Saskatchewan Cancer Agency as continued by The Cancer Agency Act; (E) the provincial health authority and health care organizations as defined in The Provincial Health Authority Act; or (iii) through or by one or more agents or other intermediate bodies; “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; “joint venture” means an association of 2 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; “manufacture” includes, for an opioid product, the production, assembly and packaging of the opioid product; “manufacturer” means a person who manufactures or has manufactured an opioid product or an active pharmaceutical ingredient contained in 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 5 OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY c 32 (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; “opioid product” means any product that contains: (a) a drug set out in the Schedule; or (b) a drug prescribed by regulation; “opioid-related disease, injury or illness” means disease, injury or illness caused or contributed to by an individual’s use of 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; “opioid-related wrong” means: (a) a tort that is committed in Saskatchewan by a manufacturer or wholesaler and that causes or contributes to opioid‑related disease, injury or illness; or (b) in an action under subsection 3(1), a breach, by a manufacturer, wholesaler or consultant, of a common law, equitable or statutory duty or obligation owed to persons in Saskatchewan who have used or been exposed to or might use or be exposed to an opioid product; “person” includes a partnership, trust, joint venture or trade association; “practitioner” means a person who: (a) is authorized under The Pharmacy Act, as that Act existed on or before December 31, 1997, The Pharmacy and Pharmacy Disciplines Act or The Veterinarians Act, 1987 to prescribe or advise on the therapeutic value, contents and hazards of a drug within the meaning of The Pharmacy and Pharmacy Disciplines Act; and (b) is not prohibited from prescribing a drug that is an opioid product; “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; 6 c 32 OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY “type of opioid product” means an opioid product in the form of a pill, a capsule, an oral liquid, a powder, an injectable or a topical or a combination of any of these; “use or exposure”, in relation to an opioid product, means ingestion, inhalation, injection, application or assimilation of the opioid product, whether intentional or otherwise; “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. (2) The definition of “manufacturer” in subsection (1) does not include: (a) 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 of “manufacturer”; or (b) a person who: (i) is a manufacturer only because clause (b) or (c) of the definition of “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 of “manufacturer”. (3) For the purposes of subsection (2) or (5.1), a person is related to another person if, directly or indirectly, the person is: (a) an affiliate, as defined in section 2 of The Business Corporations Act, of the other person; (b) an affiliate of the other person or an affiliate of an affiliate of the other person; or (c) an officer or director of the other person within the meaning of The Business Corporations Act. (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 7 OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY c 32 (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. (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. (5.1) For the purposes of this Act, a consultant who provides services to a manufacturer or wholesaler is presumed to provide those services to any related manufacturer or wholesaler. (6) For the purposes of determining the market share of a manufacturer for a type of opioid product sold in Saskatchewan, the court must calculate the manufacturer’s market share for the type of opioid product by the following formula: DM DMS = x 100% MM where: DMS 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; DM is the quantity of the type of opioid product manufactured or promoted by the manufacturer that is distributed or sold within Saskatchewan 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 or promoted by all manufacturers that is purchased or dispensed within Saskatchewan 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. 8 c 32 OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY (7) For the purposes of determining the market share of a wholesaler for a type of opioid product sold in Saskatchewan, the court must calculate the wholesaler’s market share for the type of opioid product by the following formula: DM DMS = x 100% MM where: DMS is the wholesaler’s market share for the distribution of the type of opioid product from the date of the earliest opioid‑related wrong committed by that wholesaler to the date of trial; DM is the quantity of the type of opioid product distributed by the wholesaler that is distributed within Saskatchewan from the date of the earliest opioid‑related wrong committed by that wholesaler to the date of trial; MM is the quantity of the type of opioid product distributed by all wholesalers that is distributed within Saskatchewan 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 2020, c 32, s 2; 2022, c 27, s 3. Direct action by Government 3(1) The Government 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 Government in its own right and not on the basis of a subrogated claim. (3) In an action under subsection (1), the Government 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. (4) In an action under subsection (1), the Government may recover the cost of health care benefits: (a) for particular individual insured persons; 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) If the Government 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; 9 OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY c 32 (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 application by a defendant, the court may order discovery of a statistically meaningful sample of the documents referred to in clause (b), and the order must 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 must not be disclosed, and all identifiers that disclose or may be used to trace the names or identities of any particular individual insured persons must be deleted from any documents before the documents are disclosed. 2020, c 32, s 3; 2022, c 27, s 4. Recovery of cost of health care benefits on aggregate basis 4(1) In an action under subsection 3(1) for the recovery of the cost of health care benefits on an aggregate basis, subsection (2) applies if the Government proves, on a balance of probabilities, that, with respect to 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 Saskatchewan. (2) Subject to subsections (1) and (4), the court must 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 clause (a). 10 c 32 OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY (3) If the presumptions under clauses (2)(a) and (b) apply: (a) the court must 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 of 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. (4) The amount of a defendant’s liability assessed under clause (3)(b) may be reduced, or the proportions of liability assessed under that clause 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). 2020, c 32, s 4. Joint and several liability in an action under subsection 3(1) 5(1) Two or more defendants in an action under subsection 3(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 of “opioid-related wrong” in subsection 2(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 3(1) for the cost of those health care benefits. (2) For purposes of an action under subsection 3(1), 2 or more manufacturers, wholesalers or consultants, whether or not they are defendants in the action, are deemed to have jointly breached a duty or obligation described in the definition of “opioid-related wrong” in subsection 2(1) if: (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 if damages would have been awarded to a person who suffered damages as a consequence of the breach. 2020, c 32, s 5; 2022, c 27, s 5. 11 OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY c 32 Joint and several liability of directors and officers 5.1(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 severally liable with the corporation for the cost of health care benefits, or for 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 for damages, has been commenced or concluded. (3) A director or officer is not liable under subsection (1) if the director or officer proves, on a balance of probabilities, that the director or officer: (a) did 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. 2022, c 27, s 6. Population-based evidence to establish causation and quantify damages or cost 6 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; or (b) by the Government under subsection 3(1). 2020, c 32, s 6. Limitation periods 7(1) No action that is commenced by the Government within 15 years after the coming into force of this section 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 barred under The Limitations Act. (2) Any action described in subsection (1) for damages alleged to have been caused or contributed to by an opioid‑related wrong is revived if the action was dismissed before the coming into force of this section merely because it was held by a court to be barred or extinguished by The Limitations Act. 2020, c 32, s 7; 2022, c 27, s 7. Liability based on risk contribution 8(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. 12 c 32 OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY (2) If the Government 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. (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 or wholesalers 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; 13 OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY c 32 (k) affirmative steps that a defendant took to reduce the risk of disease, injury or illness to the public; (l) other considerations considered relevant by the court. 2020, c 32, s 8. Apportionment of liability in opioid-related wrongs 9(1) This section does not apply to a defendant with respect to whom the court has made a finding of liability under section 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 towards 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 8(3). 2020, c 32, s 9. Regulations 10(1) The Lieutenant Governor in Council may make regulations: (a) defining, enlarging or restricting the meaning of any word or expression used in this Act but not defined in this Act; (b) prescribing drugs for the purposes of clause (b) of the definition of “opioid product” in subsection 2(1); (c) prescribing any matter or thing that is required or authorized by this Act to be prescribed in the regulations; (d) respecting any other matter or thing that the Lieutenant Governor in Council considers necessary to carry out the intent of this Act. (2) A regulation made pursuant to subsection (1) may be made retroactive as necessary to give the regulation full effect for all purposes of this Act. 2020, c 32, s 10. Retroactive effect 11 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 3(1) arising from an opioid‑related wrong, whenever the opioid‑related wrong occurred. 2020, c 32, s 11. 14 c 32 OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY If proceedings already commenced 12(1) If the Government has commenced a proceeding in relation to an opioid‑related wrong and the proceeding is ongoing as of the date this section comes into force: (a) the proceeding continues in accordance with this Act; (b) for the purposes of section 6 of The Class Actions Act, the Government may bring an action on behalf of a class consisting of: (i) one or more of the Government of Canada and the government of a jurisdiction within Canada; and (ii) 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; (c) a procedure completed, and an order made, before this section comes into force continues to have effect unless: (i) it would be inconsistent with this Act; or (ii) the court orders otherwise; and (d) a procedure that began but was not completed before this section comes into force must be completed in accordance with this Act. (2) Nothing in clause (1)(b) prevents a member of the class described in that provision from opting out of the proceeding in accordance with section 18 of The Class Actions Act. 2020, c 32, s 12. Effect of existing agreements 13(1) In subsections (2) and (3), “proceeding” means a proceeding: (a) in relation to an action taken under subsection 3(1); or (b) continued as described in section 12. (2) Despite any prior agreement that purports to bind the Government in relation to compensation arising from an opioid‑related wrong: (a) the Government 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) 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 Act receives Royal Assent, any compensation received by the Government under the agreement must be deducted from any compensation received by the Government as a result of a proceeding. 15 OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY c 32 (4) No compensation is payable by the Government and proceedings must not be commenced or continued to claim compensation from the Government or to obtain a declaration that compensation is payable by the Government as a result of the voiding of an agreement described in subsection (2). 2020, c 32, s 13. RSS 1978, c H-0.0001 amended 14(1) The Health Administration Act is amended in the manner set forth in this section. (2) Subsection 19(1) is amended: (a) by adding the following clause before clause (b): “(a.1) ‘future cost of health services’ means the present value of the estimated total cost of all health services that are provided, or are reasonably expected to be provided, to a beneficiary as a direct or indirect result of a personal injury described in subsection (2) after the date of settlement or, if there is no settlement, after the first day of trial”; and (b) by adding the following clauses after clause (b): “(c) ‘past cost of health services’ means the total cost of all health services provided to a beneficiary as a direct or indirect result of a personal injury described in subsection (2), including those services provided up to and including the date of settlement or, if there is no settlement, the first day of trial; “(d) ‘wrongdoer’ means: (i) a person whose negligent or wrongful act or omission causes or contributes to a beneficiary’s personal injury or death; and (ii) a person who is responsible at law for the acts or omissions of a person mentioned in clause (a); but does not include the beneficiary”. (3) Subsection 19(3) is amended by striking out “On” and substituting “Subject to sections 19.2 and 19.3, on”. (4) The following sections are added after section 19: “Requirement to notify minister of claim 19.1(1) Within 21 days after commencing an action pursuant to subsection 19(5), written notice of the action must be given to the minister, in a form acceptable to the minister: (a) by the beneficiary or the beneficiary’s personal or other legal representative; or (b) if the beneficiary or the beneficiary’s personal or other legal representative is represented in the action by a lawyer, by the lawyer or by the beneficiary or the beneficiary’s personal or other legal representative. (2) The notice to be given pursuant to subsection (1) must include a copy of the commencement documents for the action. 16 c 32 OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY “Minister may intervene in proceeding or assume conduct of claim 19.2(1) The minister may, in relation to an action mentioned in section 19, do any of the following: (a) intervene in the action; (b) on written notice to the beneficiary or the beneficiary’s personal or other legal representative, as the case may be, assume conduct of the health services claim portion of the action. (2) In assuming conduct pursuant to clause (1)(b), the minister may, as the minister considers appropriate, pursue, discontinue or settle all or any part of the health services claim. “Minister has independent right to recover 19.3(1) Notwithstanding subsection 19(2) and independent of the minister’s subrogated right pursuant to subsection 19(3), if, as a direct or indirect result of the negligence or wrongful act or omission of a wrongdoer, a beneficiary suffers a personal injury for which the beneficiary receives or could reasonably be expected to receive one or more health services, the minister may recover from the wrongdoer: (a) the past cost of health services; and (b) the future cost of health services. (2) The minister may commence a legal proceeding in the name of the Government for the recovery of the past costs of health services and future costs of health services mentioned in subsection (1). (3) Subsection (1) applies whether or not the personal injury was caused in whole or in part by the wrongdoer. (4) The past costs of health services and future costs of health services mentioned in subsection (1) may be recovered as damages, compensatory damages or otherwise. (5) Notwithstanding The Limitations Act, but subject to subsection (7), the minister must not commence an action pursuant to subsection (2) after the later of the following 2 dates: (a) the date that is 6 months after the expiration of the limitation period that applies to the beneficiary’s right to commence an action against the alleged wrongdoer for damages with respect to the personal injury mentioned in subsection 19(2); (b) the date that is 6 months after the date on which the minister first receives notice pursuant to section 19.1. (6) The minister may include in an action commenced pursuant to this section a claim for an order establishing liability for the personal injury or death suffered by a beneficiary mentioned in subsection 19(2) and the claim may be made even after the expiration of the limitation period that applied to the beneficiary’s right to commence an action against the alleged wrongdoer, but any order granted with respect to that claim has effect only in relation to the health services claim. 17 OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY c 32 (7) Clause (5)(b) does not apply if the limitation period mentioned in clause (5) (a) has expired before the date on which that subsection comes into force. “Proceedings by the minister 19.4(1) The minister is not required to obtain the permission of the beneficiary or the beneficiary’s family members or personal or other legal representative to commence an action pursuant to subsection 19(3) or section 19.3. (2) It is not a defence to an action commenced by the minister pursuant to section 19.3 that a claim for damages for the beneficiary’s personal injury or death has been adjudicated or settled unless: (a) the claim or settlement included a health services claim; and (b) in the case of a settlement, the requirements of subsection 19(6) have been met. (3) It is not a defence to an action commenced with respect to a beneficiary for a claim, other than a health services claim, for damages for the beneficiary’s personal injury or death that an action by the minister pursuant to subsection 19(3) or section 19.3 has been adjudicated or settled. (4) Notwithstanding subsection (2), it is a defence to an action commenced by the minister pursuant to section 19.3 that a claim for damages for the beneficiary’s personal injury or death has been adjudicated or settled before the date on which that section comes into force. “Retroactive effect 19.5 A provision of this Act has the retroactive effect necessary to give the provision full effect for all purposes”. 2020, c 32, s 14. Coming into force 15 This Act comes into force on assent. 2020, c 32, s 15. 18 c 32 OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY Schedule [Section 2] Opioid products A product that contains any of the following drugs is an opioid product for the purposes of this Act: Drugs containing any of the following active ingredients Including but not limited to Anileridine Buprenorphine Buprenorphine Hydrochloride Butorphanol Butorphanol Tartrate Codeine, except for those products Codeine Phosphate referred to in subsection 36(1) of the Narcotic Control Regulations (Canada) Diacetylmorphine Fentanyl Fentanyl Citrate Hydrocodone Hydrocodone Bitartrate Hydromorphone Hydromorphone Hydrochloride Levorphanol Meperidine Meperidine Hydrochloride Methadone Methadone Hydrochloride Morphine Morphine Hydrochloride and Morphine Sulfate Nalbuphine Normethadone Normethadone Hydrochloride Opium Opium and Belladonna Oxycodone Oxycodone Hydrochloride Oxymorphone Oxymorphone Hydrochloride Pentazocine Pentazocine Hydrochloride and Pentazocine Lactate Propoxyphene Remifentanil Sufentanil Tapentadol Tapentadol Hydrochloride Tramadol Tramadol Hydrochloride 2020, c 32. 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