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Bill 116, Foundations for Promoting and Protecting Mental Health and Addictions Services Act, 2019

Elliott, Christine Minister of Health and Long-Term Care

Royal Assent received. Statutes of Ontario 2019,

chapter 17

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Bill 116 Royal Assent (PDF)

EXPLANATORY

NOTE

This Explanatory Note was written as a reader’s

aid to Bill 116 and does not form part of the law.

Bill 116 has been enacted as

Chapter 17 of the Statutes of Ontario, 2019.

The

Bill enacts two Schedules, the Mental Health and Addictions

Centre of Excellence Act, 2019 and the Opioid Damages

and Health Care Costs Recovery Act, 2019 .

Schedule

Mental Health and Addictions Centre of Excellence Act, 2019

Ontario

Health shall establish and maintain, within Ontario Health, a Mental Health and

Addictions Centre of Excellence. The functions of Ontario Health to be carried

out through its Centre of Excellence are provided for.

Schedule

Opioid Damages and Health Care Costs Recovery Act, 2019

The

Schedule enacts the Opioid Damages and Health Care Costs Recovery

Act, 2019 and makes a complementary amendment to the Limitations Act, 2002 .

The

Act gives Ontario a direct and distinct action against manufacturers and wholesalers

of opioid products (as defined in the Act) to recover the cost of health care benefits

caused or contributed to by an opioid-related wrong. Ontario may recover the cost

of health care benefits with respect to particular individual insured persons or

on an aggregate basis, with respect to a population of insured persons. The Act

sets out particular rules where Ontario seeks to recover the cost of health care

benefits on an aggregate basis and presumptions where the rules are satisfied.

There are also provisions dealing with the joint and several liability of defendants.

Statistical

information and information derived from epidemio­logical, sociological and other

relevant studies is admissible as evidence for the purposes of establishing causation

and quantifying damages or the cost of health care benefits in an action brought

by or on behalf of a person in the person’s own name or as a member of a class,

or in an action under the Act.

The

Act also changes the rule with respect to limitation periods.

Section 6 of the

Act permits a proceeding for damages or for recovery of the cost of health care

benefits, alleged to have been caused or contributed to by an opioid-related wrong,

to be commenced by Ontario before, or within 15 years after, that

section comes

into force. A complementary amendment is made to the Limitations

Act, 2002 to replace the general limitation period rule with the limitation

period set out in

section 6.

an action that does not involve the recovery of the cost of health care benefits

on an aggregate basis, the court may apportion liability of two or more defendants

if certain criteria are met. The Act sets out factors for the court to consider

in apportioning liability. Where there has not been an apportioning of liability,

a defendant who has been found liable for an opioid-related wrong may commence an

action against one or more of the other defendants found liable in the same action

for contribution toward payment of the damages or the cost of health care benefits.

Section

11 addresses ongoing class proceedings or proposed class proceedings in

relation to opioid-related wrongs in which Ontario is or may be a class member.

Section 12 gives Ontario the authority to commence a class action in relation to

an opioid-related wrong on behalf of itself and other Canadian jurisdictions.

Section

13 addresses the effect of the Act on prior agreements purporting to bind Ontario

in relation to compensation arising from an opioid-related wrong.

Bill 116 2019

Act to enact the Mental Health and Addictions Centre of Excellence Act, 2019 and

the Opioid Damages and Health Care Costs Recovery Act, 2019

CONTENTS

Contents

of this Act

Commencement

Short

title

Schedule 1

Mental

Health and Addictions Centre of Excellence Act, 2019

Schedule 2

Opioid

Damages and Health Care Costs Recovery Act, 2019

Her

Majesty, by and with the advice and consent of the Legislative Assembly of the Province

of Ontario, enacts as follows:

Contents

of this Act

1 This Act consists of this section, sections 2 and 3 and the

Schedules to this Act.

Commencement

(1) Subject to subsections (2) and (3), this Act

comes into force on the day it receives Royal Assent.

(2) The

Schedules to this Act come into force as provided in each Schedule.

(3) If

a

Schedule to this Act provides that any provisions are to come into force on a

day to be named by proclamation of the Lieutenant Governor, a proclamation may apply

to one or more of those provisions, and proclamations may be issued at different

times with respect to any of those provisions.

Short

title

3 The

short title of this Act is the Foundations

for Promoting and Protecting Mental Health and Addictions Services Act, 2019 .

Schedule 1

Mental Health and Addictions Centre of Excellence Act, 2019

Preamble

The

Government of Ontario,

Recognizes

that mental health is an essential element of health;

Believes

that, for too long, the lack of attention to and investment in the mental health

and addictions system has led to unnecessary delays in accessing care and caused

unnecessary suffering;

Acknowledges

the social and economic costs of mental illness and addictions, including the fact

that mental illness and addictions are leading contributors to lost productivity

and absenteeism in the workplace;

Supports

the introduction and implementation of a mental health and addictions strategy and

is committed to its long-term success;

Believes

that the introduction, implementation and success of a mental health and addictions

strategy depends on the sustained commitment of all sectors and levels of government;

Wants

to maximize the value of its investments through a co-ordinated approach to mental

health and addictions; and

committed to the creation of a fully integrated health care system in which mental

health and addictions care is a core component.

Purpose

The purpose

of this Act is to lay a foundation to support a mental health and addictions strategy

in Ontario.

Definitions

In this

Act,

“health

service provider” means a health service provider within the meaning of the Connecting Care Act, 2019 ; (“fournisseur de services de santé”)

“integrated

care delivery system” means an integrated care delivery system within the meaning

of the Connecting Care Act, 2019 ; (“système intégré

de prestation de soins”)

“mental

health and addictions strategy” means the strategy referred to in

section 3; (“stratégie

en matière de santé mentale et de lutte contre les dépendances”)

“Minister”

means the Minister of Health and Long-Term Care or such other member of the Executive

Council to whom the administration of this Act is assigned under the Executive Council Act ; (“ministre”)

“Ministry”

means the Ministry of the Minister; (“ministère”)

“Ontario

Health” means the corporation continued under

section 3 of the Connecting Care Act, 2019 ; (“Santé Ontario”)

“regulations”

means the regulations made under this Act. (“règlements”)

Mental

health and addictions strategy

The Minister

shall develop and maintain a mental health and addictions strategy which recognizes

that mental health and addictions care is a core component of an integrated health

care system.

Mental

Health and Addictions Centre of Excellence

(1) Ontario

Health shall establish and maintain, within Ontario Health, a centre to be known

pour la santé mentale et la lutte contre les dépendances in French.

Functions

(2) In

furtherance of Ontario Health’s objects as set out in

section 6 of the Connecting Care Act, 2019 , Ontario Health shall carry out

the following functions through its Mental Health and Addictions Centre of Excellence:

1. Putting

into operation the mental health and addictions strategy.

2. Developing

clinical, quality and service standards for mental health and addictions.

3. Monitoring

metrics related to the performance of the mental health and addictions system.

4. Providing

resources and support to health service providers, integrated care delivery systems

and others related to mental health and addictions.

5. Any

other functions that the Minister may direct.

Compliance

with regulations

(3) Ontario

Health shall comply with the requirements, if any, provided for in the regulations

with respect to its Mental Health and Addictions Centre of Excellence.

Reports

(4) Ontario

Health shall include as part of any annual reports it prepares, in accordance with

such directives as may be issued from the Management Board of Cabinet from time

to time, information respecting the functions carried out through the Mental Health

and Addictions Centre of Excellence.

Regulations

The Minister

may make regulations providing for the requirements mentioned in subsection 4 (3).

Connecting

Care Act, 2019

(1) Section 6 of the Connecting Care Act, 2019

is amended by adding the following clause:

(b.1) to

support, through its Mental Health and Addictions Centre of Excellence, the mental

health and addictions strategy provided for under the Mental

Health and Addictions Centre of Excellence Act, 2019 ;

(2) Subsection

46 (1) of the Act is amended by adding “the Mental Health and

Addictions Centre of Excellence Act, 2019 ” after “under this Act” in the

portion before paragraph 1.

Commencement

The Act set out in this

Schedule comes into force on a day to be named by proclamation

of the Lieutenant Governor.

Short

title

The

short title of the Act set out in this

Schedule is the Mental Health and Addictions Centre of Excellence Act, 2019 .

Schedule 2

Opioid Damages and Health Care Costs Recovery Act, 2019

CONTENTS

Definitions

and

interpretation

Direct

action by Crown

Recovery

of cost of health care benefits on aggregate basis

Joint

and several liability in an action under s. 2

(1) Population-based

evidence to establish causation and quantify damages or cost

Limitation

periods

Liability

based on risk contribution

Apportionment

of liability in opioid-related wrongs

Regulations

Retroactive

effect

Crown

as class member

Class

proceeding

Effect

of existing agreements

Amendments to This Act

Amendments

to this Act

Amendments to Other Acts

Limitations

Act, 2002

Commencement and

Short Title

Commencement

Short

title

Schedule 1

Definitions

and

interpretation

(1) In this Act,

“cost

of health care benefits” means the sum of,

(

a) the

present value of the total expenditure by the Crown in right of Ontario 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 Crown in right of Ontario

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 prestations 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) insured services as defined in the Health

Insurance Act ,

(

b) community

services under the Home Care and Community Services Act, 1994 ,

(

c) payments

under the Homemakers and Nurses Services Act ,

(

d) services

for which a facility fee is payable under the Independent Health

Facilities Act ,

(

e) care,

services and accommodation under the Long-Term Care Homes Act,

2007 ,

(

f) drugs,

substances or professional services funded under the Ontario

Drug Benefit Act ,

(

g) care,

services and accommodation under any of the following Acts, before their repeal:

(

i) the

Charitable Institutions Act ,

(ii) the

Homes for the Aged and Rest Homes Act ,

(iii) the

Nursing Homes Act ,

(

h) other

expenditures by the Crown in right of Ontario, 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; (“prestations de soins de santé”)

“insured

person” means,

(

a) a

person, including a deceased person, for whom health care benefits have been provided,

(

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”, “fabriquer”)

“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 per cent 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

Schedule 1 to this Act, or

(

b) a

drug prescribed by the regulations made under this Act; (“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 Ontario by a manufacturer or wholesaler and 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 Ontario

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 Medicine Act, 1991 , Dentistry

Act, 1991 , Nursing Act, 1991 or Veterinarians Act to prescribe or

advise on the therapeutic value, contents and hazards of a drug within the meaning

of the Drug and Pharmacies Regulation 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; (“promouvoir”, “promotion”)

“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

(2) The

definition of “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 of “manufacturer”; or

(

c) 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”.

Meaning

of “related”

(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

section 1 of the Business 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”

(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 per cent 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 per cent 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 per cent of the profits or at least 50

per cent of the assets on the dissolution, winding up or termination of the partnership,

trust or joint venture.

Deemed

affiliate

(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

(6) For

the purposes of determining the market share of a defendant for a type of opioid

product sold in Ontario, the court shall calculate the defendant’s market share

for the type of opioid product by the following formula:

dms

= 100% × dm / MM

where,

dms

= 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,

= the quantity of the type of opioid product manufactured or promoted by the defendant

that is distributed or sold within Ontario from the date of the earliest opioid-related

wrong committed by that defendant to the date of trial,

= the quantity of the type of opioid product manufactured or promoted by all manufacturers

or wholesalers that is purchased or dispensed within Ontario 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 by Crown

(1) The Crown in right of Ontario 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) An

action under subsection (1) is brought by the Crown in right of Ontario in its own

right and not on the basis of a subrogated claim.

Action

independent of recovery by others

(3) In

an action under subsection (1), the Crown in right of Ontario 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

(4) In

an action under subsection (1), the Crown in right of Ontario 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

(5) If

the Crown in right of Ontario 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

(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 the Crown in right of Ontario 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 Ontario.

Presumptions

(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) of this subsection 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) 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) of this subsection equal to its market share in the

type of opioid product.

Reduction

or readjustment

(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 in an action under s. 2 (1)

(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 of

“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

(2) For

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 of “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 to establish causation and quantify

damages or cost

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, 1992 ; or

(

b) under

subsection 2 (1).

Limitation periods

(1) No

proceeding that is commenced by the Crown in right of Ontario 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, 2002 or

any other Act, if the proceeding was commenced before the coming into force of this

section or within 15 years after it came into force.

Certain

proceedings revived

(2) A

proceeding described in subsection (1) for damages alleged to have been caused or

contributed to by an opioid-related wrong is revived if the 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,

2002 or any other Act.

Liability

based on risk contribution

(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

(2) If

the Crown in right of Ontario 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

(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

(1) This

section does not apply to a

defendant in respect of whom the court has made a finding of liability under

section

Action

or proceeding for contribution

(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

(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.

Apportioning

liability and contributions: factors

(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 of “opioid product” in subsection

1 (1);

(

b) respecting

any matter necessary or advisable to carry out effectively the intent and purpose

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 the Crown in right of Ontario 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 Ontario 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

(1) The Crown in right of Ontario may,

under the Class Proceedings Act, 1992 , 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.

Same

(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, 1992 .

Effect

of existing agreements

(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, 1992 , or

(

b) described

section 11 of this Act.

Same

(2) Despite

any prior agreement that purports to bind the Crown in right of Ontario in relation

to compensation arising from an opioid-related wrong,

(

a) the

Crown in right of Ontario 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.

Compensation

(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 the Crown in

right of Ontario under the agreement must be deducted from any compensation received

by it as a result of a proceeding.

Same

(4) No

compensation is payable by the Crown in right of Ontario and proceedings must not

be commenced or continued to claim compensation from the Crown in right of Ontario

or to obtain a declaration that compensation is payable by it as a result of the

voiding of an agreement described in subsection (2).

Same

(5) A

declaratory or other order of any court providing that compensation is payable by

the Crown in right of Ontario as a result of the voiding of an agreement described

in subsection (2) is not enforceable against the Crown in right of Ontario.

Amendments to This Act

Amendments

to this Act

(1) Clause (

d) of the definition of

“health care benefits” in subsection 1 (1) of the Act is repealed and the following

substituted:

(

d) services

for which a facility cost is payable under the Oversight of

Health Facilities and Devices Act, 2017 ,

(2) The

definition of “health care benefits” in subsection 1 (1) of the Act is amended by

adding the following clause:

(g.1) services

for which a facility fee was payable under the Independent

Health Facilities Act before its repeal,

Amendments to Other Acts

Limitations

Act, 2002

15 The

Schedule to the Limitations

Act, 2002 is amended by adding the following:

Opioid

Damages and Health Care Costs Recovery Act, 2019

subsection

6 (1)

Commencement and

Short Title

Commencement

(1) Subject to subsection (2), the

Act set out in this

Schedule comes into force on the day the Foundations for Promoting and Protecting Mental Health and

Addictions Services Act, 2019 receives Royal Assent.

(2) Section

14 comes into force on the later of the day subsection 1 (1) comes into force and

the day subsection 84 (1) of

Schedule 9 ( Oversight of Health

Facilities and Devices Act, 2017 ) to the Strengthening

Quality and Accountability for Patients Act, 2017 comes into force.

Short

title

17 The

short title of the Act set out in this

Schedule

is the Opioid Damages and Health Care Costs Recovery Act, 2019 .

Schedule 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.

Bill 116 As Amended by Standing Committee (PDF)

This reprint of the Bill is marked to indicate the changes that were made in Committee.

The changes are indicated by underlines for new text and a strikethrough for deleted text.

______________

EXPLANATORY NOTE

The Bill enacts two Schedules, the Mental Health and Addictions Centre of Excellence Act, 2019 and the Opioid Damages and Health Care Costs Recovery Act, 2019 .

Schedule 1

Mental Health and Addictions Centre of Excellence Act, 2019

Ontario Health shall establish and maintain, within Ontario Health, a Mental Health and Addictions Centre of Excellence. The functions of Ontario Health to be carried out through its Centre of Excellence are provided for.

Schedule 2

Opioid Damages and Health Care Costs Recovery Act, 2019

The

Schedule enacts the Opioid Damages and Health Care Costs Recovery Act, 2019 and makes a complementary amendment to the Limitations Act, 2002 .

The Act gives Ontario a direct and distinct action against manufacturers and wholesalers of opioid products (as defined in the Act) to recover the cost of health care benefits caused or contributed to by an opioid-related wrong. Ontario may recover the cost of health care benefits with respect to particular individual insured persons or on an aggregate basis, with respect to a population of insured persons. The Act sets out particular rules where Ontario seeks to recover the cost of health care benefits on an aggregate basis and presumptions where the rules are satisfied. There are also provisions dealing with the joint and several liability of defendants.

Statistical information and information derived from epidemio­logical, sociological and other relevant studies is admissible as evidence for the purposes of establishing causation and quantifying damages or the cost of health care benefits in an action brought by or on behalf of a person in the person’s own name or as a member of a class, or by Ontario in an action it brings under the Act.

The Act also changes the rule with respect to limitation periods.

Section 6 of the Act permits an action a proceeding for damages or for recovery of the cost of health care benefits, alleged to have been caused or contributed to by an opioid-related wrong, to be commenced by Ontario before, or within 15 years after, that

section comes into force. A complementary amendment is made to the Limitations Act, 2002 to replace the general limitation period rule with the limitation period set out in

section 6.

In an action that does not involve the recovery of the cost of health care benefits on an aggregate basis, the court may apportion liability of two or more defendants if certain criteria are met. The Act sets out factors for the court to consider in apportioning liability. Where there has not been an apportioning of liability, a defendant who has been found liable for an opioid-related wrong may commence an action against one or more of the other defendants found liable in the same action for contribution toward payment of the damages or the cost of health care benefits.

Any proceeding commenced by or on behalf of Ontario in relation to an opioid-related wrong that is ongoing when

section 11 comes into force is required to proceed in accordance with the Act.

Section 11 addresses ongoing class proceedings or proposed class proceedings in relation to opioid-related wrongs in which Ontario is or may be a class member.

Section 12 gives Ontario the authority to commence a class action in relation to an opioid-related wrong on behalf of itself and other Canadian jurisdictions.

Section 13 addresses the effect of the Act on prior agreements purporting to bind Ontario in relation to compensation arising from an opioid-related wrong.

Bill 116 2019

An Act to enact the Mental Health and Addictions Centre of Excellence Act, 2019 and the Opioid Damages and Health Care Costs Recovery Act, 2019

CONTENTS

Contents of this Act

Commencement

Short title

Schedule 1

Mental Health and Addictions Centre of Excellence Act, 2019

Schedule 2

Opioid Damages and Health Care Costs Recovery Act, 2019

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Contents of this Act

1 This Act consists of this section, sections 2 and 3 and the Schedules to this Act.

Commencement

(1) Subject to subsections (2) and (3), this Act comes into force on the day it receives Royal Assent.

(2) The Schedules to this Act come into force as provided in each Schedule.

(3) If a

Schedule to this Act provides that any provisions are to come into force on a day to be named by proclamation of the Lieutenant Governor, a proclamation may apply to one or more of those provisions, and proclamations may be issued at different times with respect to any of those provisions.

Short title

3 The

short title of this Act is the Foundations for Promoting and Protecting Mental Health and Addictions Services Act, 2019 .

Schedule 1

Mental Health and Addictions Centre of Excellence Act, 2019

Preamble

The Government of Ontario,

Recognizes that mental health is an essential element of health;

Believes that, for too long, the lack of attention to and investment in the mental health and addictions system has led to unnecessary delays in accessing care and caused unnecessary suffering;

Acknowledges the social and economic costs of mental illness and addictions, including the fact that mental illness and addictions are leading contributors to lost productivity and absenteeism in the workplace;

Supports the introduction and implementation of a mental health and addictions strategy and is committed to its long-term success;

Believes that the introduction, implementation and success of a mental health and addictions strategy depends on the sustained commitment of all sectors and levels of government;

Wants to maximize the value of its investments through a co-ordinated approach to mental health and addictions; and

Is committed to the creation of a fully integrated health care system in which mental health and addictions care is a core component.

Purpose

1 The purpose of this Act is to lay a foundation to support a mental health and addictions strategy in Ontario.

Definitions

2 In this Act,

“health service provider” means a health service provider within the meaning of the Connecting Care Act, 2019 ; (“fournisseur de services de santé”)

“integrated care delivery system” means an integrated care delivery system within the meaning of the Connecting Care Act, 2019 ; (“système intégré de prestation de soins”)

“mental health and addictions strategy” means the strategy referred to in

section 3; (“stratégie en matière de santé mentale et de lutte contre les dépendances”)

“Minister” means the Minister of Health and Long-Term Care or such other member of the Executive Council to whom the administration of this Act is assigned under the Executive Council Act ; (“ministre”)

“Ministry” means the Ministry of the Minister; (“ministère”)

“Ontario Health” means the corporation continued under

section 3 of the Connecting Care Act, 2019 ; (“Santé Ontario”)

“regulations” means the regulations made under this Act. (“règlements”)

Mental health and addictions strategy

3 The Minister shall develop and maintain a mental health and addictions strategy which recognizes that mental health and addictions care is a core component of an integrated health care system.

Mental Health and Addictions Centre of Excellence

Functions

(2) In furtherance of Ontario Health’s objects as set out in

section 6 of the Connecting Care Act, 2019 , Ontario Health shall carry out the following functions through its Mental Health and Addictions Centre of Excellence:

1. Putting into operation the mental health and addictions strategy.

2. Developing clinical, quality and service standards for mental health and addictions.

3. Monitoring metrics related to the performance of the mental health and addictions system.

4. Providing resources and support to health service providers, integrated care delivery systems and others related to mental health and addictions.

5. Any other functions that the Minister may direct.

Compliance with regulations

(3) Ontario Health shall comply with the requirements, if any, provided for in the regulations with respect to its Mental Health and Addictions Centre of Excellence.

Reports

(4) Ontario Health shall include as part of any annual reports it prepares, in accordance with such directives as may be issued from the Management Board of Cabinet from time to time, information respecting the functions carried out through the Mental Health and Addictions Centre of Excellence.

Regulations

5 The Minister may make regulations providing for the requirements mentioned in subsection 4 (3).

Connecting Care Act, 2019

(1) Section 6 of the Connecting Care Act, 2019 is amended by adding the following clause:

(b.1) to support, through its Mental Health and Addictions Centre of Excellence, the mental health and addictions strategy provided for under the Mental Health and Addictions Centre of Excellence Act, 2019 ;

(2) Subsection 46 (1) of the Act is amended by adding “the Mental Health and Addictions Centre of Excellence Act, 2019 ” after “under this Act” in the portion before paragraph 1.

Commencement

7 The Act set out in this

Schedule comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

8 The

short title of the Act set out in this

Schedule is the Mental Health and Addictions Centre of Excellence Act, 2019 .

Schedule 2

Opioid Damages and Health Care Costs Recovery Act, 2019

CONTENTS

Definitions and

interpretation

Direct action by Crown

Recovery of cost of health care benefits on aggregate basis

Joint and several liability in an action under s. 2

(1) Population-based evidence to establish causation and quantify damages or cost

Limitation periods

Liability based on risk contribution

Apportionment of liability in opioid-related wrongs

Regulations

Retroactive effect

If proceeding already commenced

Crown as class member

Class proceeding

Effect of existing agreements

Amendments to This Act

Amendments to this Act

Amendments to Other Acts

Limitations Act, 2002

Commencement and

Short Title

Commencement

Short title

Schedule 1

Definitions and

interpretation

(1) In this Act,

“cost of health care benefits” means the sum of,

(

a) the present value of the total expenditure by the Crown in right of Ontario 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 Crown in right of Ontario 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 prestations 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) insured services as defined in the Health Insurance Act ,

(

b) community services under the Home Care and Community Services Act, 1994 ,

(

c) payments under the Homemakers and Nurses Services Act ,

(

d) services for which a facility fee is payable under the Independent Health Facilities Act ,

(

e) care, services and accommodation under the Long-Term Care Homes Act, 2007 ,

(

f) drugs, substances or professional services funded under the Ontario Drug Benefit Act ,

(

g) care, services and accommodation under any of the following Acts, before their repeal:

(

i) the Charitable Institutions Act ,

(ii) the Homes for the Aged and Rest Homes Act ,

(iii) the Nursing Homes Act ,

(

h) other expenditures by the Crown in right of Ontario, 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; (“prestations 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”, “fabriquer”)

“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 per cent 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

Schedule 1 to this Act, or

(

b) a drug prescribed by the regulations made under this Act; (“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 Ontario by a manufacturer or wholesaler and 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 Ontario 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 Medicine Act, 1991 , Dentistry Act, 1991 , Nursing Act, 1991 or Veterinarians Act to prescribe or advise on the therapeutic value, contents and hazards of a drug within the meaning of the Drug and Pharmacies Regulation 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; (“promouvoir”, “promotion”)

“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

(2) The definition of “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 of “manufacturer”; or

(

c) 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”.

Meaning of “related”

(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

section 1 of the Business 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”

(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 per cent 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 per cent 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 per cent of the profits or at least 50 per cent of the assets on the dissolution, winding up or termination of the partnership, trust or joint venture.

Deemed affiliate

(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

(6) For the purposes of determining the market share of a defendant for a type of opioid product sold in Ontario, the court shall calculate the defendant’s market share for the type of opioid product by the following formula:

dms = 100% × dm / MM

where,

dms = 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 = the quantity of the type of opioid product manufactured or promoted by the defendant that is distributed or sold within Ontario from the date of the earliest opioid-related wrong committed by that defendant to the date of trial,

MM = the quantity of the type of opioid product manufactured or promoted by all manufacturers or wholesalers that is purchased or dispensed within Ontario 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 by Crown

(1) The Crown in right of Ontario 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) An action under subsection (1) is brought by the Crown in right of Ontario in its own right and not on the basis of a subrogated claim.

Action independent of recovery by others

(3) In an action under subsection (1), the Crown in right of Ontario 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

(4) In an action under subsection (1), the Crown in right of Ontario 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

(5) If the Crown in right of Ontario 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

(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 the Crown in right of Ontario 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 Ontario.

Presumptions

(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) of this subsection 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) 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) of this subsection equal to its market share in the type of opioid product.

Reduction or readjustment

(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 in an action under s. 2 (1)

(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 of “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

(2) For 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 of “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 to establish causation and quantify damages or cost

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 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 Proceedings Act, 1992 ; or

(

b) by the Crown in right of Ontario under subsection 2 (1).

Population-based evidence to establish causation and quantify damages or cost

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, 1992 ; or

(

b) under subsection 2 (1).

Limitation periods

(1) No action that is commenced by the Crown in right of Ontario before, or 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, 2002 .

Certain actions revived

(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 under or extinguished by the Limitations Act, 2002 .

Limitation periods

(1) No proceeding that is commenced by the Crown in right of Ontario 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, 2002 or any other Act, if the proceeding was commenced before the coming into force of this

section or within 15 years after it came into force.

Certain proceedings revived

(2) A proceeding described in subsection (1) for damages alleged to have been caused or contributed to by an opioid-related wrong is revived if the 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, 2002 or any other Act.

Liability based on risk contribution

(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

(2) If the Crown in right of Ontario 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

(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

(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

(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

(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.

Apportioning liability and contributions: factors

(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 of “opioid product” in subsection 1 (1);

(

b) respecting any matter necessary or advisable to carry out effectively the intent and purpose 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.

If proceeding already commenced

11 If a proceeding in relation to an opioid-related wrong is commenced by or on behalf of the Crown in right of Ontario and is ongoing as of the date this

section 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

section 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 must be completed in accordance with this Act.

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 the Crown in right of Ontario 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 Ontario 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

(1) The Crown in right of Ontario may, under the Class Proceedings Act, 1992 , 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.

Same

(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, 1992 .

Effect of existing agreements

(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, 1992 , or

(

b) continued as described in

section 11 of this Act.

Same

(2) Despite any prior agreement that purports to bind the Crown in right of Ontario in relation to compensation arising from an opioid-related wrong,

(

a) the Crown in right of Ontario is not barred from commencing or continuing 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.

Compensation

(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 the Crown in right of Ontario under the agreement must be deducted from any compensation received by it as a result of a proceeding.

Same

(4) No compensation is payable by the Crown in right of Ontario and proceedings must not be commenced or continued to claim compensation from the Crown in right of Ontario or to obtain a declaration that compensation is payable by it as a result of the voiding of an agreement described in subsection (2).

Same

(5) A declaratory or other order of any court providing that compensation is payable by the Crown in right of Ontario as a result of the voiding of an agreement described in subsection (2) is not enforceable against the Crown in right of Ontario.

Amendments to This Act

Amendments to this Act

(1) Clause (

d) of the definition of “health care benefits” in subsection 1 (1) of the Act is repealed and the following substituted:

(

d) services for which a facility cost is payable under the Oversight of Health Facilities and Devices Act, 2017 ,

(2) The definition of “health care benefits” in subsection 1 (1) of the Act is amended by adding the following clause:

(g.1) services for which a facility fee was payable under the Independent Health Facilities Act before its repeal,

Amendments to Other Acts

Limitations Act, 2002

15 The

Schedule to the Limitations Act, 2002 is amended by adding the following:

Opioid Damages and Health Care Costs Recovery Act, 2019

subsection 6 (1)

Commencement and

Short Title

Commencement

(1) Subject to subsection (2), the Act set out in this

Schedule comes into force on the day the Foundations for Promoting and Protecting Mental Health and Addictions Services Act, 2019 receives Royal Assent.

(2) Section 14 comes into force on the later of the day subsection 1 (1) comes into force and the day subsection 84 (1) of

Schedule 9 ( Oversight of Health Facilities and Devices Act, 2017 ) to the Strengthening Quality and Accountability for Patients Act, 2017 comes into force.

Short title

17 The

short title of the Act set out in this

Schedule is the Opioid Damages and Health Care Costs Recovery Act, 2019 .

Schedule 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.

Bill 116 Original (PDF)

EXPLANATORY

NOTE

The

Bill enacts two Schedules, the Mental Health and Addictions

Centre of Excellence Act, 2019 and the Opioid Damages

and Health Costs Recovery Act, 2019 .

Schedule

Mental Health and Addictions Centre of Excellence Act, 2019

Ontario

Health shall establish and maintain, within Ontario Health, a Mental Health and

Addictions Centre of Excellence. The functions of Ontario Health to be carried

out through its Centre of Excellence are provided for.

Schedule

Opioid Damages and Health Care Costs Recovery Act, 2019

The

Schedule enacts the Opioid Damages and Health Care Costs Recovery

Act, 2019 and makes a complementary amendment to the Limitations Act, 2002 .

The

Act gives Ontario a direct and distinct action against manufacturers and wholesalers

of opioid products (as defined in the Act) to recover the cost of health care benefits

caused or contributed to by an opioid-related wrong. Ontario may recover the cost

of health care benefits with respect to particular individual insured persons or

on an aggregate basis, with respect to a population of insured persons. The Act

sets out particular rules where Ontario seeks to recover the cost of health care

benefits on an aggregate basis and presumptions where the rules are satisfied.

There are also provisions dealing with the joint and several liability of defendants.

Statistical

information and information derived from epidemio­logical, sociological and other

relevant studies is admissible as evidence for the purposes of establishing causation

and quantifying damages or the cost of health care benefits in an action brought

by or on behalf of a person in the person’s own name or as a member of a class,

or by Ontario in an action it brings under the Act.

The

Act also changes the rule with respect to limitation periods.

Section 6 of the

Act permits an action for damages or for recovery of the cost of health care benefits,

alleged to have been caused or contributed to by an opioid-related wrong, to be

commenced by Ontario before, or within 15 years after, that

section comes into force.

A complementary amendment is made to the Limitations Act,

2002 to replace the general limitation period rule with the limitation period

set out in

section 6.

an action that does not involve the recovery of the cost of health care benefits

on an aggregate basis, the court may apportion liability of two or more defendants

if certain criteria are met. The Act sets out factors for the court to consider

in apportioning liability. Where there has not been an apportioning of liability,

a defendant who has been found liable for an opioid-related wrong may commence an

action against one or more of the other defendants found liable in the same action

for contribution toward payment of the damages or the cost of health care benefits.

Any

proceeding commenced by or on behalf of Ontario in relation to an opioid-related

wrong that is ongoing when

section 11 comes into force is required to proceed in

accordance with the Act.

Section 12 gives Ontario the authority to commence a class

action in relation to an opioid-related wrong on behalf of itself and other Canadian

jurisdictions.

Section 13 addresses the effect of the Act on prior agreements purporting

to bind Ontario in relation to compensation arising from an opioid-related wrong.

Bill 116 2019

Act to enact the Mental Health and Addictions Centre of Excellence Act, 2019 and

the Opioid Damages and Health Costs Recovery Act, 2019

CONTENTS

Contents

of this Act

Commencement

Short

title

Schedule 1

Mental

Health and Addictions Centre of Excellence Act, 2019

Schedule 2

Opioid

Damages and Health Care Costs Recovery Act, 2019

Her

Majesty, by and with the advice and consent of the Legislative Assembly of the Province

of Ontario, enacts as follows:

Contents

of this Act

1 This Act consists of this section, sections 2 and 3 and the

Schedules to this Act.

Commencement

(1) Subject to subsections (2) and (3), this Act

comes into force on the day it receives Royal Assent.

(2) The

Schedules to this Act come into force as provided in each Schedule.

(3) If

a

Schedule to this Act provides that any provisions are to come into force on a

day to be named by proclamation of the Lieutenant Governor, a proclamation may apply

to one or more of those provisions, and proclamations may be issued at different

times with respect to any of those provisions.

Short

title

3 The

short title of this Act is the Foundations

for Promoting and Protecting Mental Health and Addictions Services Act, 2019 .

Schedule 1

Mental Health and Addictions Centre of Excellence Act, 2019

Preamble

The

Government of Ontario,

Recognizes

that mental health is an essential element of health;

Believes

that, for too long, the lack of attention to and investment in the mental health

and addictions system has led to unnecessary delays in accessing care and caused

unnecessary suffering;

Acknowledges

the social and economic costs of mental illness and addictions, including the fact

that mental illness and addictions are leading contributors to lost productivity

and absenteeism in the workplace;

Supports

the introduction and implementation of a mental health and addictions strategy and

is committed to its long-term success;

Believes

that the introduction, implementation and success of a mental health and addictions

strategy depends on the sustained commitment of all sectors and levels of government;

Wants

to maximize the value of its investments through a co-ordinated approach to mental

health and addictions; and

committed to the creation of a fully integrated health care system in which mental

health and addictions care is a core component.

Purpose

The purpose

of this Act is to lay a foundation to support a mental health and addictions strategy

in Ontario.

Definitions

In this

Act,

“health

service provider” means a health service provider within the meaning of the Connecting Care Act, 2019 ; (“fournisseur de services de santé”)

“integrated

care delivery system” means an integrated care delivery system within the meaning

of the Connecting Care Act, 2019 ; (“système intégré

de prestation de soins”)

“mental

health and addictions strategy” means the strategy referred to in

section 3; (“stratégie

en matière de santé mentale et de lutte contre les dépendances”)

“Minister”

means the Minister of Health and Long-Term Care or such other member of the Executive

Council to whom the administration of this Act is assigned under the Executive Council Act ; (“ministre”)

“Ministry”

means the Ministry of the Minister; (“ministère”)

“Ontario

Health” means the corporation continued under

section 3 of the Connecting Care Act, 2019 ; (“Santé Ontario”)

“regulations”

means the regulations made under this Act. (“règlements”)

Mental

health and addictions strategy

The Minister

shall develop and maintain a mental health and addictions strategy which recognizes

that mental health and addictions care is a core component of an integrated health

care system.

Mental

Health and Addictions Centre of Excellence

(1) Ontario

Health shall establish and maintain, within Ontario Health, a centre to be known

pour la santé mentale et la lutte contre les dépendances in French.

Functions

(2) In

furtherance of Ontario Health’s objects as set out in

section 6 of the Connecting Care Act, 2019 , Ontario Health shall carry out

the following functions through its Mental Health and Addictions Centre of Excellence:

1. Putting

into operation the mental health and addictions strategy.

2. Developing

clinical, quality and service standards for mental health and addictions.

3. Monitoring

metrics related to the performance of the mental health and addictions system.

4. Providing

resources and support to health service providers, integrated care delivery systems

and others related to mental health and addictions.

5. Any

other functions that the Minister may direct.

Compliance

with regulations

(3) Ontario

Health shall comply with the requirements, if any, provided for in the regulations

with respect to its Mental Health and Addictions Centre of Excellence.

Reports

(4) Ontario

Health shall include as part of any annual reports it prepares, in accordance with

such directives as may be issued from the Management Board of Cabinet from time

to time, information respecting the functions carried out through the Mental Health

and Addictions Centre of Excellence.

Regulations

The Minister

may make regulations providing for the requirements mentioned in subsection 4 (3).

Connecting

Care Act, 2019

(1) Section 6 of the Connecting Care Act, 2019

is amended by adding the following clause:

(b.1) to

support, through its Mental Health and Addictions Centre of Excellence, the mental

health and addictions strategy provided for under the Mental

Health and Addictions Centre of Excellence Act, 2019 ;

(2) Subsection

46 (1) of the Act is amended by adding “the Mental Health and

Addictions Centre of Excellence Act, 2019 ” after “under this Act” in the

portion before paragraph 1.

Commencement

The Act set out in this

Schedule comes into force on a day to be named by proclamation

of the Lieutenant Governor.

Short

title

The

short title of the Act set out in this

Schedule is the Mental Health and Addictions Centre of Excellence Act, 2019 .

Schedule 2

Opioid Damages and Health Care Costs Recovery Act, 2019

CONTENTS

Definitions

and

interpretation

Direct

action by Crown

Recovery

of cost of health care benefits on aggregate basis

Joint

and several liability in an action under s. 2

(1) Population-based

evidence to establish causation and quantify damages or cost

Limitation

periods

Liability

based on risk contribution

Apportionment

of liability in opioid-related wrongs

Regulations

Retroactive

effect

proceeding already commenced

Class

proceeding

Effect

of existing agreements

Amendments to This Act

Amendments

to this Act

Amendments to Other Acts

Limitations

Act, 2002

Commencement and

Short Title

Commencement

Short

title

Schedule 1

Definitions

and

interpretation

(1) In this Act,

“cost

of health care benefits” means the sum of,

(

a) the

present value of the total expenditure by the Crown in right of Ontario 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 Crown in right of Ontario

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 prestations 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) insured services as defined in the Health

Insurance Act ,

(

b) community

services under the Home Care and Community Services Act, 1994 ,

(

c) payments

under the Homemakers and Nurses Services Act ,

(

d) services

for which a facility fee is payable under the Independent Health

Facilities Act ,

(

e) care,

services and accommodation under the Long-Term Care Homes Act,

2007 ,

(

f) drugs,

substances or professional services funded under the Ontario

Drug Benefit Act ,

(

g) care,

services and accommodation under any of the following Acts, before their repeal:

(

i) the

Charitable Institutions Act ,

(ii) the

Homes for the Aged and Rest Homes Act ,

(iii) the

Nursing Homes Act ,

(

h) other

expenditures by the Crown in right of Ontario, 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; (“prestations de soins de santé”)

“insured

person” means,

(

a) a

person, including a deceased person, for whom health care benefits have been provided,

(

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”, “fabriquer”)

“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 per cent 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

Schedule 1 to this Act, or

(

b) a

drug prescribed by the regulations made under this Act; (“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 Ontario by a manufacturer or wholesaler and 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 Ontario

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 Medicine Act, 1991 , Dentistry

Act, 1991 , Nursing Act, 1991 or Veterinarians Act to prescribe or

advise on the therapeutic value, contents and hazards of a drug within the meaning

of the Drug and Pharmacies Regulation 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; (“promouvoir”, “promotion”)

“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

(2) The

definition of “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 of “manufacturer”; or

(

c) 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,

(

B) a person described in clause (

a) or (

d) of the definition of “manufacturer”.

Meaning

of “related”

(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

section 1 of the Business 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”

(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 per cent 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 per cent 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 per cent of the profits or at least 50

per cent of the assets on the dissolution, winding up or termination of the partnership,

trust or joint venture.

Deemed

affiliate

(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

(6) For

the purposes of determining the market share of a defendant for a type of opioid

product sold in Ontario, the court shall calculate the defendant’s market share

for the type of opioid product by the following formula:

dms

= 100% × dm / MM

where,

dms

= 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,

= the quantity of the type of opioid product manufactured or promoted by the defendant

that is distributed or sold within Ontario from the date of the earliest opioid-related

wrong committed by that defendant to the date of trial,

= the quantity of the type of opioid product manufactured or promoted by all manufacturers

or wholesalers that is purchased or dispensed within Ontario 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 by Crown

(1) The Crown in right of Ontario 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) An

action under subsection (1) is brought by the Crown in right of Ontario in its own

right and not on the basis of a subrogated claim.

Action

independent of recovery by others

(3) In

an action under subsection (1), the Crown in right of Ontario 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

(4) In

an action under subsection (1), the Crown in right of Ontario 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

(5) If

the Crown in right of Ontario 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

(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 the Crown in right of Ontario 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 Ontario.

Presumptions

(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) of this subsection 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) 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) of this subsection equal to its market share in the

type of opioid product.

Reduction

or readjustment

(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 in an action under s. 2 (1)

(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 of

“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

(2) For

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 of “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 to establish causation and quantify damages or cost

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 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 Proceedings Act, 1992 ; or

(

b) by

the Crown in right of Ontario under subsection 2 (1).

Limitation

periods

(1) No action that is commenced by the

Crown in right of Ontario before, or 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, 2002 .

Certain

actions revived

(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

under or extinguished by the Limitations Act, 2002 .

Liability

based on risk contribution

(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

(2) If

the Crown in right of Ontario 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

(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

(1) This

section does not apply to a

defendant in respect of whom the court has made a finding of liability under

section

Action

or proceeding for contribution

(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

(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.

Apportioning

liability and contributions: factors

(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 of “opioid product” in subsection

1 (1);

(

b) respecting

any matter necessary or advisable to carry out effectively the intent and purpose

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.

proceeding already commenced

11 If a proceeding in relation to an opioid-related

wrong is commenced by or on behalf of the Crown in right of Ontario and is ongoing

as of the date this

section 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

section 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 must be completed in accordance with this Act.

Class

proceeding

(1) The Crown in right of Ontario may,

under the Class Proceedings Act, 1992 , 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.

Same

(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, 1992 .

Effect

of existing agreements

(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, 1992 , or

(

b) continued

as described in

section 11 of this Act.

Same

(2) Despite

any prior agreement that purports to bind the Crown in right of Ontario in relation

to compensation arising from an opioid-related wrong,

(

a) the

Crown in right of Ontario 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.

Compensation

(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 the Crown in

right of Ontario under the agreement must be deducted from any compensation received

by it as a result of a proceeding.

Same

(4) No

compensation is payable by the Crown in right of Ontario and proceedings must not

be commenced or continued to claim compensation from the Crown in right of Ontario

or to obtain a declaration that compensation is payable by it as a result of the

voiding of an agreement described in subsection (2).

Same

(5) A

declaratory or other order of any court providing that compensation is payable by

the Crown in right of Ontario as a result of the voiding of an agreement described

in subsection (2) is not enforceable against the Crown in right of Ontario.

Amendments to This Act

Amendments

to this Act

(1) Clause (

d) of the definition of

“health care benefits” in subsection 1 (1) of the Act is repealed and the following

substituted:

(

d) services

for which a facility cost is payable under the Oversight of

Health Facilities and Devices Act, 2017 ,

(2) The

definition of “health care benefits” in subsection 1 (1) of the Act is amended by

adding the following clause:

(g.1) services

for which a facility fee was payable under the Independent

Health Facilities Act before its repeal,

Amendments to Other Acts

Limitations

Act, 2002

15 The

Schedule to the Limitations

Act, 2002 is amended by adding the following:

Opioid

Damages and Health Care Costs Recovery Act, 2019

subsection

6 (1)

Commencement and

Short Title

Commencement

(1) Subject to subsection (2), the

Act set out in this

Schedule comes into force on the day the Foundations for Promoting and Protecting Mental Health and

Addictions Services Act, 2019 receives Royal Assent.

(2) Section

14 comes into force on the later of the day subsection 1 (1) comes into force and

the day subsection 84 (1) of

Schedule 9 ( Oversight of Health

Facilities and Devices Act, 2017 ) to the Strengthening

Quality and Accountability for Patients Act, 2017 comes into force.

Short

title

17 The

short title of the Act set out in this

Schedule

is the Opioid Damages and Health Care Costs Recovery Act, 2019 .

Schedule 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.

Date Bill stage Event Outcome Committee

December 12, 2019

Royal Assent

Roy