Second

Session, 50th General Assembly

Charles III, 2024

BILL 86

AN ACT TO AMEND THE

OPIOID DAMAGES AND HEALTH CARE COSTS RECOVERY ACT

Received

and Read the First Time ................................................................

Second

Reading ............................................................................................

Committee .....................................................................................................

Third

Reading ...............................................................................................

Royal

Assent .................................................................................................

HONOURABLE JOHN

HOGAN, KC

Minister of Health

and Community Services and Attorney General

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would amend the Opioid

Damages and Health Care Costs Recovery Act to align with other provinces

and territories.

A BILL

AN ACT TO AMEND THE OPIOID DAMAGES AND

HEALTH CARE COSTS RECOVERY ACT

Analysis

S.2 Amdt.

Definitions

S.3 Amdt.

Interpretation

S.4 Amdt.

Direct

action by Crown

S.4.1 Added

Direct

action by Crown in right of Canada

S.5 Amdt.

Recovery of cost of health care benefits on aggregate basis

S.6 Amdt.

Joint

and individual liability in action under subsection 4(1) or 4.1(1)

S.7 Amdt.

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

S.8 Amdt.

Limitation periods

S.9 Amdt.

Liability based on risk contribution

S.9.1 Added

Joint

and individual liability of directors and officers

S.13 Amdt.

Regulations

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

SNL2019 cO-6.2

as amended

(1) Section 2 of the Opioid Damages and

Health Care Costs Recovery Act is amended by adding immediately before

paragraph (

a) the following:

(a.01) "active ingredient" means an

ingredient prescribed in the regulations;

(a.02) "consultant" means a person who

provides advisory services to

(

i) a wholesaler in relation to the distribution,

sale or offering for sale of opioid products, or

(ii) a manufacturer in relation to the sale of

active ingredients or opioid products;

(2) Paragraph 2(

a) of the Act is repealed and the

following substituted:

(a) "cost of health care benefits" means

(

i) in relation to an action under subsection

4(1), the sum of

(

A) the present value of

the total expenditure by the government for health care benefits provided for

insured persons as a result of opioid-related

disease, injury or illness, and

(

B) the present value of

the estimated total expenditure by the government for health care benefits that

could reasonably be expected to be provided for those insured persons as a result of opioid-related disease, injury or illness or

the risk of opioid-related disease, injury or illness, and

(ii) in relation to an action under subsection

4.1(1), the sum of

(

A) the present value of

provided for insured persons as a

result of opioid-related disease, injury or illness, and

(

B) the present value of

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;

(3) Paragraph 2(

c) of the Act is repealed and the

following substituted:

(c) "health care benefits" means

(

i) in relation to an action under subsection 4(1)

(

A) insured services as

defined in the Hospital Insurance Regulations ,

(

B) insured services as

defined in the Medical Care and Hospital Insurance Act,

(

C) benefit as defined

in the Pharmaceutical Services Act , and

(

D) other expenditures by the government, made

directly or through one or more agents or other intermediate bodies, for

programs, services, benefits or similar matters

associated with disease, injury or illness , and

(ii) in relation to an action under subsection

benefits or similar matters associated with disease, injury or illness;

(4) Paragraph 2(

g) of the Act is repealed and the

following substituted:

(g) "manufacturer" means a person who manufactures or has manufactured an active

ingredient or opioid product and a person who, in the past or currently,

(

i) causes, directly or indirectly, through arrangements with

contractors, subcontractors, licensees, franchisees or others, the manufacture

of an active ingredient or opioid product,

(ii) for any fiscal year

of the person, derives at least 10% of revenues, determined on a consolidated

basis in accordance with generally accepted accounting principles in Canada,

from the manufacture or promotion of active ingredients or opioid products by

that person or by other persons,

(iii) engages in or

causes, directly or indirectly, other persons to engage in promoting an active

ingredient or opioid product, or

(iv) i s a trade

association primarily engaged in

(

A) advancing the

interests of manufacturers,

(

B) promoting an active

ingredient or opioid product, or

(

C) causing, directly or

indirectly, other persons to engage in promoting an active ingredient or opioid

product,

but does not include

(

v) a wholesaler or

retailer of opioid products who is not related to

(

A) a person who

manufactures an opioid product, or

(

B) a person described

in subparagraph ( i ), or

(vi) a person who

(

A) is a manufacturer

only because subparagraph (ii) or (iii) applies to the person, and

(

B) is not related to

(

I) a person who

manufactures an opioid product, or

(II) a person described

in subparagraph (

i) or (iv );

(5) Paragraph 2(

h) of the Act is repealed and the

following substituted:

(h) "opioid product" means any product that contains a drug or active ingredient

prescribed in the regulations ;

(6) Paragraph 2(

j) of the Act is repealed and the

following substituted:

(j) "opioid-related wrong" means

(

i) a tort that is

committed in the province by a manufacturer, wholesaler

or consultant and that causes or contributes to opioid-related disease, injury or illness, or

(ii) in an action under

subsection 4(1) or 4.1(1), a breach, by a manufacturer, wholesaler or

consultant, of a common law, equitable or statutory duty or obligation owed to

persons in the province who have used or been exposed to or might use or be

exposed to an opioid product;

2. (1) Subsection 3(4) of the Act is repealed and

the following substituted:

(4) For the purposes of

determining the market share of a manufacturer for a type of opioid product sold

in the province, the court shall calculate the manufacturer's market share for

the type of opioid product by the following formula:

mms = mm/MM x 100%

where

mms is the manufacturer's

market share for the type of opioid product from the date of the earliest

opioid-related wrong committed by that manufacturer to the date of trial;

mm is the quantity of the type of opioid product

manufactured by the manufacturer that is distributed, sold

or offered for sale within the province from the date of the earliest

opioid-related wrong committed by that manufacturer to the date of trial; and

MM is the quantity of the type of opioid product

manufactured by all manufacturers that is purchased or dispensed within the

province for the purpose of providing health care benefits from the date of the

earliest opioid-related wrong committed by the manufacturer to the date of

trial.

(2) Section 3 of the Act is amended by adding

immediately after subsection (4) the following:

(4.1) For the purposes of

determining the market share of a wholesaler for a type of opioid product sold

in the province, the court shall calculate the wholesaler's market share for

the type of opioid product by the following formula:

wms = wm/WW x 100%

where

wms is the wholesaler's market share for the type

of opioid product from the date of the earliest opioid-related wrong committed

by that wholesaler to the date of trial;

wm is the quantity of the type of opioid product that

is distributed, sold or offered for sale by the wholesaler

within the province from the date of the earliest opioid-related wrong

committed by that wholesaler to the date of trial; and

WW is the quantity of the type of opioid product that

is distributed, sold or offered for sale within the province

for the purpose of providing health care benefits from the date of the earliest

opioid-related wrong committed by the wholesaler to the date of trial.

3. Subsection 4(1) of the Act is repealed and the

following substituted:

Direct action by

Crown

(1) The Crown has a direct and distinct action against a

manufacturer, wholesaler or consultant to recover the

cost of health care benefits caused or contributed to by an opioid-related

wrong.

4. The Act is amended by adding immediately after

section 4 the following:

Direct action by Crown

in right of Canada

4.1

(1) The

Crown in right of Canada has a direct and distinct action against a

manufacturer, wholesaler or consultant to recover the

cost of health care benefits caused or contributed to by an opioid-related

wrong.

(2) An action under subsection

(1) is brought by the Crown in right of Canada in its own

right and not on the basis of a subrogated claim.

(3) In an action under

subsection (1), the Crown in right of Canada may recover the cost of health

care benefits whether or not there has been a recovery

by other persons who have suffered damage caused or contributed to by the

opioid-related wrong committed by the defendant.

(4) In an action under

subsection (1), the Crown in right of Canada may recover the cost of health

care benefits

(

a) for particular

individual insured persons who have suffered damage caused or

contributed to by the use of or exposure to a type of opioid product; or

(

b) on an aggregate basis, for

a population of insured persons who have suffered damage caused or contributed

to by the use of or exposure to a type of opioid

product.

(5) Where the Crown in right

of Canada seeks in an action under subsection (1) to recover the cost of health

care benefits on an aggregate basis,

(

a) it is not necessary to

(

i) identify

the particular individual insured persons,

(ii) prove the cause of

opioid-related disease, injury or illness in any

particular individual insured person, or

(iii) prove the cost of health

care benefits for any particular individual insured person;

(

b) the health care records

and documents of particular individual insured persons or the documents related

to the provision of health care benefits for particular individual insured

persons are not compellable except as provided under a rule of law, practice or

procedure that requires the production of documents relied on by an expert witness;

(

c) a person is not

compellable to answer questions with respect to the health of, or the provision

of health care benefits for, particular individual insured persons;

(

d) notwithstanding paragraphs

(

b) and (c), on application by a defendant, the court may order discovery of a

statistically meaningful sample of the documents referred to in paragraph (

b) and the order shall include directions concerning the nature, level of detail

and type of information to be disclosed; and

(

e) where an order is made

under paragraph (d), the identity of particular individual

insured persons shall not be disclosed, and all identifiers that disclose or

may be used to trace the names or identities of any particular individual

insured persons shall be deleted from any documents before the documents are

disclosed.

5. Subsection 5(1) of the Act is amended by

(

a) deleting the reference "subsection

4(1)" and substituting the reference "subsection 4(1) or

4.1(1)"; and

(

b) deleting the words "Crown proves" and

substituting the words "Crown, or the Crown in right of Canada, as the

case may be, proves".

6. (1) Subsection 6(1) of the Act is repealed and

the following substituted:

Joint and

individual liability in action under subsection 4(1) or 4.1(1)

(1) Two

or more defendants in an action under subsection 4(1)

or 4.1(1) are jointly and individually liable for the cost of health care

benefits where

(

a) those defendants jointly

breached a duty or obligation described in the definition of

"opioid-related wrong"; and

(

b) as a consequence of the breach described in paragraph (a), at least one

of those defendants is held liable in the action under subsection 4(1) or

4.1(1) for the cost of those health care benefits.

(2) Subsection 6(2) of the Act is amended by

(

a) deleting the reference "subsection

4(1)" and substituting the reference "subsection 4(1) or

4.1(1)"; and

(

b) deleting the words "manufacturers or

wholesalers" wherever they appear and substituting the words

"manufacturers, wholesalers or consultants".

Section 7 of the Act is amended by deleting the

word "or" at the end of paragraph (a), deleting the period at the end

of paragraph (

b) and substituting a semi-colon and the word "or" and adding

immediately after paragraph (

b) the following:

(

c) by the Crown in right of Canada under

subsection 4.1(1).

8. (1) Subsection 8(1) of the Act is amended by

deleting the words "2 years" and substituting the words "15

years".

(2) Section 8 of the Act is amended by adding

immediately after subsection (1) the following:

(1.1) An action brought by the Crown in right of Canada within 15

years after the coming into force of this Act for the recovery of the cost of

health care benefits is not barred under the Limitations Act .

(3) Subsection 8(2) of the Act is amended by deleting

the reference "subsection (1)" and substituting the reference "subsection

(1) or (1.1)".

9. (1) Subsection 9(2) of the Act is amended by deleting

the words "Crown is unable" and substituting the words "Crown,

or the Crown in right of Canada, as the case may be, is unable".

(2) Paragraph 9(3)(

e) of the Act is amended by

deleting the words "manufacturers or wholesalers" and substituting

the words "manufacturers, wholesalers or consultants".

10. The Act is amended by adding immediately after

section 9 the following:

Joint and

individual liability of directors and officers

9.1

(1) A director or officer of a corporation who directs,

authorizes, assents to, acquiesces in or participates in an opioid-related

wrong committed by the corporation is jointly and individually liable with the

corporation for the cost of health care benefits or damages caused or

contributed to by the opioid-related wrong.

(2) Subsection (1) applies whether or not an

action against the corporation for recovery of the cost of health care benefits

or damages has been commenced or concluded.

(3) A

director or officer is not liable under subsection (1) where the director or

officer proves, on a balance of probabilities, that the director or officer

(

a) d id

not know, and in the exercise of reasonable diligence could not have known,

that the corporation was committing an opioid-related wrong; or

(

b) exercised

reasonable diligence to prevent the corporation from committing the

opioid-related wrong.

Section 13 of the Act is amended by adding

immediately before paragraph (

a) the following:

(a.01) prescribing active ingredients for the

purposes of paragraph 2(a.01 );

Commencement

(1) This Act comes into force on the day the Opioid

Damages and Health Care Costs Recovery Act comes into force.

(2) When brought into

force under subsection (1), a provision of this Act has the retroactive effect

necessary to give the provision full effect for all purposes, including

allowing an action to be brought under subsection 4.1(1) arising from an

opioid-related wrong, whenever the opioid-related wrong occurred.

King's Printer