Ontario case one of four class actions across Canada targeting opioid manufacturers and suppliers
The Ontario opioids class action is proceeding to the second phase of certification after the court dismissed the defendants’ motion to strike the claim.
The litigation is part of a nationwide wave of lawsuits brought against manufacturers of the highly addictive painkillers on behalf of Canadians suffering from addiction, their families, and public health insurers.
According to Peter Pliszka, counsel for Sandoz Canada Inc., one of the defendants, there are four class actions in Canada targeting the manufacturers and sellers of opioids. One began in BC and is seeking recovery of the healthcare-related costs incurred due to opioid use on behalf of BC, other provinces, and the federal government.
Earlier this month, a class action against 16 pharmaceutical companies was authorized in Quebec on behalf of people in that province diagnosed with opioid use disorder since 1996 or their family members if they are deceased.
Another was launched by Grande Prairie, Alberta, on behalf of all Canadian municipalities seeking compensation for the costs of social services incurred by municipalities dealing with the fallout from the opioid crisis.
Adam Tanel is a partner in Koskie Minsky’s class action group and lawyer for the plaintiff in the Ontario-based lawsuit.
“This is an action and an issue of, frankly, biblical scope,” he says. “The amount of harm visited across the country is just staggering. It leaves no segment of the Canadian population untouched.”
Tanel says his clients come from “every walk of life” and include babies born with neonatal abstinence syndrome as the result of their mothers being addicted to opioids while pregnant.
“It's just a horrific toll that has been visited upon Canadians,” he says. “The only thing commensurate with how terrible the toll is is how large the profits were that were reaped by the manufacturers of the opioids – and, we say, the manufacturers of the epidemic.”
Typically, a certification proceeds as one “holistic” motion, says Tanel. However, the Ontario action was “bifurcated” into two phases because the defendants brought a motion to strike, arguing the plaintiffs failed to plead a cause of action. Justice Paul Perell of the Ontario Superior Court dismissed the motion. The defendants had until last week to bring any further related motions.
Phase one of the certification process dealt with s. 5(1)(a) of the Class Proceedings Act, under which the court shall certify a class proceeding if “the pleadings or the notice of application discloses a cause of action.” The parties will now proceed to ss. 5(1)(b) to (e).
Sandoz is a defendant in the other three class actions among many other companies.
“Sandoz believes that the claims against that are without any merit, and Sandoz is vigorously defending against the claims,” says Pliszka, a senior partner in Fasken’s litigation group.
In the BC class action brought by the provinces and federal government, Sandoz has been granted leave to the Supreme Court of Canada on the issue of whether the proposed action is unconstitutional. The appeal is set to be heard on May 23 and 24.
In the BC case, says Pliszka, the defendants’ position is that the provinces fail to meet the “common issues” and the “preferable procedure” elements of the certification test. On common issues, he says the primary claim asserted by the plaintiffs is that the companies lied to the medical community about opioids by presenting them as appropriate to treat long-term, medium-pain conditions and as carrying a low risk of addiction. Sandoz and the other defendants argue there is no evidence they represented the drugs in this way. They are also claiming that the provinces and federal government lack sufficient commonality for a class action because the opioids sold in each province, the nature of each province’s illicit market, and the provincial drug plans were different.
In assessing the preferable procedure element, says Pliszka, courts have found plaintiffs must show the proposed class action serves three objectives: access to justice, judicial economy, and ameliorating the defendants’ allegedly improper past behaviour. The defendants argue the proposed class members fall short on all three.
In the Ontario case, Tanel says phase two of certification will proceed under a “slightly revised” test because the legislation was amended.
“This will be, I think, one of the more well-publicized actions that’s decided under the new test that'll deal with issues of commonality and preferability.”
Tanel predicts the defendants will focus their efforts on ss. 5(1)(c) and (d) – certification requires “the claims or defences of the class members raise common issues” and “a class proceeding would be the preferable procedure.”
“There's certainly an identifiable class of two or more persons that would be represented by the representative plaintiff. We now have a host of representative plaintiffs who fairly and adequately represent the interests of this class.”
“We're confident that that will be successful in that regard.”
