First

Session, 49th General Assembly

Elizabeth II, 2019

BILL 17

AN ACT TO PROVIDE FOR

DAMAGES AND RECOVERY OF OPIOID RELATED HEALTH CARE COSTS

Received

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

Second

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

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

Third

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

Royal

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

HONOURABLE ANDREW

PARSONS, Q.C.

Minister of Justice

and Public Safety and Attorney General

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would enact the Opioid Damages and Health Care Costs

Recovery Act . This Bill would

provide for the recovery of opioid damages and related health care costs.

A BILL

AN ACT TO PROVIDE FOR DAMAGES AND RECOVERY

OF OPIOID RELATED HEALTH CARE COSTS

Analysis

Short title

Definitions

Interpretation

Direct action by Crown

Recovery of cost of health care benefits

on aggregate basis

Joint and individual liability

Population-based evidence to establish

causation and quantify damages or costs

Limitation periods

Liability based on risk contribution

Apportionment of liability

Class proceeding

Effect of existing agreements

Regulations

Transitional

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

Short title

1. This

Act may be cited as the Opioid Damages

and Health Care Costs Recovery Act.

Definitions

2. In

this Act

(a) "cost of health care benefits" means

the sum of

(

i) 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

(ii) 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;

(b) "disease, injury or illness"

includes problematic substance use, addiction and general deterioration of health;

(c) "health care benefits" means

(

i) insured services as defined under the Hospital Insurance Regulations ,

(ii) insured services as defined under the Medical Care and Hospital Insurance Act ,

and

(iii) benefit as defined under the Pharmaceutical Services Act ;

(d) "insured person" means

(

i) a person, including a deceased person, for

whom health care benefits have been provided, or

(ii) a person for whom health care benefits could reasonably

be expected to be provided;

(e) "joint venture" means an association

of 2 or more persons where

(

i) the relationship among the persons does not

constitute a corporation, partnership or trust, and

(ii) the persons each have an undivided interest in

assets of the association;

(f) "manufacture" includes, for an

opioid product, the production, assembly and packaging of the opioid product;

(g) "manufacturer" means a person who

manufactures or has manufactured an 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 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

opioid products by that person or by other persons,

(iii) engages in or causes, directly or indirectly,

other persons to engage in promoting an opioid product, or

(iv) is a trade association primarily engaged in

(

A) advancing the interests of manufacturers,

(

B) promoting an opioid product, or

(

C) causing, directly or indirectly, other persons

to engage in promoting an 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,

(

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,

(II) a person described in subparagraph (

i) or

(iv);

(h) "opioid product" means any product

that contains a drug prescribed in the regulations;

(i) "opioid-related disease, injury or

illness" means disease, injury or illness caused or contributed to by an

individual's use or exposure to an opioid product, whether the opioid product

(

i) in the form in which it was manufactured,

(ii) combined with another drug or substance, or

(iii) used, or in the case of exposure is present,

in a form or manner other than

(

A) as prescribed or advised by a practitioner, or

(

B) as recommended by the manufacturer of that

opioid product;

(j) "opioid-related wrong" means

(

i) a tort that is committed in the province by a

manufacturer or wholesaler and that causes or contributes to opioid-related

disease, injury or illness, or

(ii) in an action under subsection 4(1), a breach,

by a manufacturer or wholesaler, of a common law, equitable or statutory duty

or obligation owed to persons in the province who have used or been exposed to or

might use or be exposed to an opioid product;

(k) "person" includes a trust, joint

venture or trade association;

(l) "practitioner" means a person who,

(

i) is authorized under the Dental Act, 2008, Medical

Act, 2011 , Pharmacy Act, 2012 , Registered Nurses Act, 2008 or Veterinary Medical Act, 2004 to

prescribe or advise on the therapeutic value, contents and hazards of a drug

within the meaning of the Pharmacy Act,

2012 , and

(ii) is not prohibited from prescribing a drug that

is an opioid product;

(m) "promote" or "promotion"

includes, for an opioid product

(

i) the marketing of the opioid product, whether

direct or indirect,

(ii) the distribution or sale of the opioid

product, and

(iii) any research with respect to the opioid

product;

(n) "type of opioid product" means an

opioid product in the form of a pill, a capsule, an oral liquid, a powder, an injectable, a topical or

a combination of any of these;

(o) "use or exposure", in relation to an

opioid product, means ingestion, inhalation, injection, application or

assimilation of the opioid product, whether intentional or otherwise; and

(p) "wholesaler" means a person who

distributes, sells or offers for sale opioid products to

(

i) pharmacies, distributors or other persons for

resale, or

(ii) hospitals or facilities for patient use.

Interpretation

(1) For

the purposes of this Act, a person is related to another person where, directly

or indirectly, the person is

(

a) an affiliate, as defined in

section 2 of the Corporations Act , of the other person,

(

b) an affiliate of the other person or an

affiliate of an affiliate of the other person.

(2) For the purposes of paragraph (1)(b), a person

is considered to be an affiliate of another person where the person

(

a) is a corporation and the other person, or a

group of persons not dealing with each other at arm's length of which the other

person is a member, owns a beneficial interest in the shares of the corporation

(

i) carrying at least 50% of the votes for the

election of directors of the corporation and the votes carried by the shares

are sufficient, where exercised, to elect a director of the corporation, or

(ii) having a fair market value, including a

premium for control where applicable, of at least 50% of the fair market value

of all the issued and outstanding shares of the corporation, or

(

b) is a partnership, trust or joint venture and

the other person, or a group of persons not dealing with each other at arm's

length of which the other person is a member, has an ownership interest in the

assets of that person that entitles the other person or group of persons to

receive at least 50% of the profits or at least 50% of the assets on the

dissolution, winding up or termination of the partnership, trust or joint

venture.

(3) For the purposes of paragraph (1)(b), a person

is considered to be an affiliate of another person where the other person, or a

group of persons not dealing with each other at arm's length of which the other

person is a member, has direct or indirect influence that, where exercised,

would result in control in fact of that person, except where the other person

or group of persons deals at arm's length with that person and derives

influence solely as a lender.

(4) For the purposes of determining the market

share of a defendant for a type of opioid product in the province, the court

shall calculate the defendant's market share for the type of opioid product by the

following formula:

dms = dm/MM x 100%

where

dms is 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 is the quantity of the type of opioid product

manufactured or promoted by the defendant that is distributed or sold within

the province from the date of the earliest opioid-related wrong committed by

the defendant to the date of trial; and

MM is the quantity of the type of opioid product

manufactured or promoted by all manufacturers or wholesalers 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

defendant to the date of trial.

Direct action by

Crown

(1) The

Crown 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.

(2) An action under subsection (1) is brought by

the Crown in its own right and not on the basis of a subrogated claim.

(3) In an action under subsection (1), the Crown

may recover the cost of health care benefits whether or not there has been a

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

the opioid-related wrong committed by the defendant.

(4) In an action under subsection (1), the Crown

may recover the cost of health care benefits

(

a) for particular individual insured persons who

have suffered damage caused or contributed to by the use of or exposure to a

type of opioid product; or

(

b) on an aggregate basis, for a population of

insured persons who have suffered damage caused or contributed to by the use of

or exposure to a type of opioid product.

(5) Where the Crown seeks in an action under

subsection (1) to recover the cost of health care benefits on an aggregate

basis,

(

a) it is not necessary to

(

i) identify the particular individual insured

persons,

(ii) prove the cause of opioid-related disease,

injury or illness in any particular individual insured person, or

(iii) prove the cost of health care benefits for any

particular individual insured person;

(

b) the health care records and documents of

particular individual insured persons or the documents related to the provision

of health care benefits for particular individual insured persons are not

compellable except as provided under a rule of law, practice or procedure that

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

(

c) a person is not compellable to answer questions

with respect to the health of, or the provision of health care benefits for,

particular individual insured persons;

(

d) notwithstanding paragraphs (

b) and (c), on

application by a defendant, the court may order discovery of a statistically

meaningful sample of the documents referred to in paragraph (

b) and the order

shall include directions concerning the nature, level of detail and type of

information to be disclosed; and

(

e) where an order is made under paragraph (d),

the identity of particular individual insured persons shall not be disclosed,

and all identifiers that disclose or may be used to trace the names or identities

of any particular individual insured persons shall be deleted from any

documents before the documents are disclosed.

Recovery of cost

of health care benefits on aggregate basis

(1) In

an action under subsection 4(1) for the recovery of the cost of health care

benefits on an aggregate basis, subsection (2) applies where the Crown proves, on

a balance of probabilities, that, in respect of a type of opioid product,

(

a) the defendant breached a common law, equitable

or statutory duty or obligation owed to insured persons who have used or been

exposed to or might use or be exposed to the type of opioid product;

(

b) using the type of opioid product can cause or

contribute to disease, injury or illness; and

(

c) during all or part of the period of the breach

referred to in paragraph (a), the type of opioid product, manufactured or

promoted by the defendant, was offered for distribution or sale in the

province.

(2) Subject to subsections (1) and (4), the court

shall presume that

(

a) the population of insured persons who used or

were exposed to the type of opioid product manufactured or promoted by the

defendant would not have used or been exposed to the product but for the breach

referred to in paragraph (1)(a); and

(

b) the use or exposure described in paragraph (

a) caused or contributed to disease, injury or illness or the risk of disease, injury

or illness in a portion of the population described in paragraph (a).

(3) Where the presumptions in paragraph (2)(

a) and

(

b) apply,

(

a) the court shall determine on an aggregate

basis the cost of health care benefits provided after the date of the breach

referred to in paragraph (1)(

a) resulting from use or exposure to the type of

opioid product; and

(

b) each defendant to which the presumptions apply

is liable for the proportion of the aggregate cost referred to in paragraph (

a) equal to its market share in the type of opioid product.

(4) The amount of a defendant's liability assessed

under paragraph (3)(

b) may be reduced, or the proportions of liability assessed

under paragraph (3)(

b) readjusted among the defendants, to the extent that a

defendant proves, on a balance of probabilities, that the breach referred to in

paragraph (1)(

a) did not cause or contribute to the use or exposure referred to

in paragraph (2)(

a) or to the disease, injury or illness or risk of disease,

injury or illness referred to in paragraph (2)(b).

Joint and

individual liability

(1) Two

or more defendants in an action under subsection 4(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) for the cost of those health care benefits.

(2) For the purposes of an action under subsection

4(1), 2 or more manufacturers or wholesalers, whether or not they are

defendants in the action, are considered to have jointly breached a duty or

obligation described in the definition of "opioid-related wrong"

where

(

a) one or more of those manufacturers 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 where 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 costs

7. Statistical

information and information derived from epidemiological, sociological and

other relevant studies, including information derived from sampling, is admissible

as evidence for the purposes of establishing causation and quantifying damages

or the cost of health care benefits respecting an opioid-related wrong in an

action brought

(

a) by or on behalf of a person, in the person's

own name or as a member of a class of persons under the Class Actions Act ; or

(

b) by the Crown under subsection 4(1).

Limitation

periods

(1) An

action brought by the Crown within 2 years after the coming into force of this

Act for the recovery of the cost of health care benefits or for damages alleged

to have been caused or contributed to by an opioid-related wrong is not barred

under the Limitations Act .

(2) An action described in subsection (1) for

damages alleged to have been caused or contributed to by an opioid-related

wrong is revived where the action was dismissed before the coming into force of

this Act only because it was held by a court to be barred under or extinguished

by the Limitations Act .

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.

(2) Where the Crown is unable to establish which

defendant caused or contributed to the use or exposure described in paragraph (

b) and, as a result of a breach of a common law, equitable or statutory duty or

obligation,

(

a) one or more defendants causes or contributes

to a risk of disease, injury or illness by making a type of opioid product

available to insured persons; and

(

b) an insured person has used or been exposed to

the type of opioid product referred to in paragraph (

a) and suffers disease,

injury or illness as a result of the use or exposure,

the court may find each defendant that

caused or contributed to the risk of disease, injury or illness liable for a

proportion of the damages or cost of health care benefits incurred, equal to

the proportion of its contribution to that risk of disease, injury or illness.

(3) The court may consider the following in

apportioning liability under subsection (2):

(

a) the length of time a defendant engaged in the

conduct that caused or contributed to the risk of disease, injury or illness;

(

b) the market share a defendant had in the type

of opioid product that caused or contributed to the risk of disease, injury or

illness;

(

c) the degree of potency of the opioid product

manufactured or promoted by a defendant;

(

d) the amount spent by a defendant on promoting

the type of opioid product that caused or contributed to the risk of disease,

injury or illness;

(

e) the degree to which a defendant collaborated

or acted in concert with other manufacturers or wholesalers in any conduct that

caused, contributed to or aggravated the risk of disease, injury or illness;

(

f) the extent to which a defendant conducted

tests and studies to determine the risk of disease, injury or illness resulting

from use of or exposure to the type of opioid product;

(

g) the extent to which a defendant assumed a

leadership role in manufacturing or promoting the type of opioid product;

(

h) the efforts a defendant made to warn

practitioners and the public about the risk of disease, injury or illness

resulting from use of or exposure to the type of opioid product;

(

i) the extent to which a defendant continued

manufacturing or promoting the type of opioid product after it knew or ought to

have known the risk of disease, injury or illness resulting from use of or

exposure to the type of opioid product;

(

j) the extent to which a defendant continued

promoting the type of opioid product after it knew or ought to have known that

the amount or dosage of the type of opioid product promoted did not reasonably

reflect the health needs of the population of insured persons who were likely

to use or be exposed to the type of opioid product;

(

k) affirmative steps that a defendant took to

reduce the risk of disease, injury or illness to the public; and

(

l) other considerations considered relevant by

the court.

Apportionment of

liability

(1) This

section does not apply to a defendant in respect of whom the court has

made a finding of liability under

section 9.

(2) A defendant who is found liable for an

opioid-related wrong may commence, against one or more of the defendants found

liable for that wrong in the same action, an action or proceeding for

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

caused or contributed to by that wrong.

(3) Subsection (2) applies whether or not the

defendant commencing an action or proceeding under that subsection has paid all

or any of the cost of health care benefits or the damages caused or contributed

to by the opioid-related wrong.

(4) In an action or proceeding described in

subsection (2), the court may apportion liability and order contribution among

each of the defendants in accordance with the considerations listed in subsection

9(3).

Class proceeding

(1) The

Crown may, under the Class Actions Act ,

commence an action under subsection 4(1) on behalf of a class consisting of

(

a) one or more of the Crown, the Crown in right

of a province of Canada and the Government of a territory of Canada; and

(

b) a federal or provincial government payment

agency that makes reimbursement for the costs of services that are in the

nature of health care benefits within the meaning of this Act.

(2) Nothing in subsection (1) prevents a member of

a class described in that subsection from opting out of the class proceeding in

accordance with the Class Actions Act .

Effect of

existing agreements

(1) In

subsections (2) and (3), "proceeding" means a proceeding

(

a) in relation to an action taken under

subsection 4(1); or

(

b) continued as described in

section 14.

(2) Notwithstanding any prior agreement that

purports to bind the Crown in relation to compensation arising from an

opioid-related wrong,

(

a) the Crown is not barred from commencing or

continuing a proceeding;

(

b) the evidence that may be brought against a

party to the agreement in the course of a proceeding is not limited; and

(

c) the liability of, or the amount of

compensation payable by, a party to the agreement in relation to an

opioid-related wrong that is the subject of a proceeding is not limited.

(3) Where an agreement described in subsection

(2) has been finalized by receiving consent of all parties to the agreement and all

necessary court approvals, where any, before this Act comes into force, any

compensation received by the Crown under the agreement shall be deducted from

any compensation received by the Crown as a result of a proceeding.

(4) Compensation is not payable by the Crown and

proceedings shall not be commenced or continued to claim compensation from the

Crown or to obtain a declaration that compensation is payable by the Crown as a

result of the voiding of an agreement described in subsection (2).

Regulations

13. The

Lieutenant-Governor in Council may make regulations

(

a) prescribing drugs for the purposes of

paragraph 2(h);

(

b) defining a word or phrase used but not defined

in the Act; and

(

c) generally, to give effect to this Act.

Transitional

14. Where

a proceeding in relation to an opioid-related wrong is commenced by or on behalf

of the Crown and is ongoing at the time this Act comes into force

(

a) the proceeding shall continue in accordance

with this Act;

(

b) a step in the proceeding completed, and an

order made, before this Act comes into force continues to have effect unless,

(

i) the step or order would be inconsistent with

this Act, or

(ii) the court orders otherwise; and

(

c) a step in the proceeding that began but was

not completed before this

section comes into force shall be completed in

accordance with this Act.

Commencement

(1) This Act comes into force on a day

to be proclaimed by the Lieutenant-Governor in Council.

(2) When

brought into force under subsection (1), a provision of this Act has the

retroactive effect necessary to give the provision full effect for all

purposes, including allowing an action to be brought under subsection 4(1)

arising from an opioid-related wrong, whenever the opioid-related wrong

occurred.

Queen's Printer