B.C. launched a class action lawsuit against opioid manufacturers, marketers, and distributors, alleging their role in the opioid crisis. A key provision of B.C.’s class action legislation raised constitutional questions regarding B.C.’s ability to represent other governments in litigation without infringing upon their sovereignty. The Supreme Court of Canada in Sanis clarified these issues, ruling that it is constitutional for the B.C. Crown to be the representative plaintiff acting on behalf of a class of Canadian governments and agencies.
Facts
In 2018, B.C. brought a class action lawsuit against 49 manufacturers, marketers, and distributors of opioid products, alleging they contributed to the opioid epidemic by falsely marketing their products as being less addictive and less prone to abuse, tolerance, and withdrawal than other pain medications. B.C. sought certification with itself as the representative plaintiff acting on behalf of a class of governments and agencies in Canada that had paid healthcare, pharmaceutical and treatment costs related to opioids.
Subsequently, B.C. introduced legislation, the Opioid Recovery Act (“ORA”), which included a provision that allowed B.C. to bring an action on behalf of other Canadian provincial, territorial and federal governments to recover their respective health care costs caused by “opioid-related wrong[s]”, unless those governments opted out (s. 11 of the ORA).
The appellants, consisting of several pharmaceutical companies which manufacture, market, and distribute opioid products throughout Canada, brought an application for an order striking s. 11 of the ORA as being invalid because it is ultra vires the Legislative Assembly of B.C. They argued that B.C.’s class action framework violates the Constitution by allowing B.C. to control the litigation of other sovereign provinces and territories, binding those other governments to its decisions, infringing their litigation autonomy and violating their legislative sovereignty to enact potentially contradictory laws.
The Supreme Court of British Columbia and British Columbia Court of Appeal disagreed with the appellants.
The SCC Decision
The Supreme Court of Canada agreed with the courts below and dismissed the appeal.
Reasons
The main issue on appeal was whether s. 11 of the ORA is ultra vires because it falls outside the Province of B.C.’s territorial legislative competence, as established by s. 92 of the Constitution Act, 1867.
Justice Karakatsanis, writing for the majority of the Court, rejected the appellants’ challenge to B.C.’s class action framework, concluding that s. 11 is a valid procedural framework to facilitate intergovernmental cooperation and to respect interjurisdictional comity, empowering our federation to meet its modern challenges.
A. Section 11 Provides a Procedural Mechanism, Not A Substantive Right.
The Court rejected the appellants’ claim that s. 11 creates substantive rights for the Crown in right of B.C. and other provinces. It held that the purpose and effect of s. 11 deals with the promotion of litigation efficiency by joining the claims of consenting Crowns into the single proceeding already before the courts of B.C., so their individual claims can benefit from the efficiency and consistency that class actions and the ORA provide. Section 11 does not create a new proceeding. It serves as a procedural mechanism explaining how the rest of the ORA applies to B.C.’s existing, proposed multi-Crown, opioid class action.
As well, Justice Karakatsanis held that while participation in a class action involves some sacrifice of litigation autonomy, this is a procedural issue, not a substantive rights issue. Foreign Crowns, like any litigant, must comply with the procedural rules of the jurisdiction in which they choose to litigate. Section 11 provides an opt-in or opt-out mechanism. In choosing to participate by opting in or not opting out, a class member, including a Crown, gains the benefits of class actions in exchange for the burdens involved.
B. Section 11 is Properly Classified under Section 92(14) of the Constitution Act, 1867.
Justice Karakatsanis further held that s. 11 is classified under s. 92(14) of the Constitution Act, 1867, which grants the provinces the authority to legislate in relation to “[t]he Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts”. The Court held that s. 11 is a procedural mechanism that helps Crowns to cooperate in a collective pursuit of their individual claims without creating or changing substantive rights, and assists B.C.’s courts in presiding over that pursuit.
C. Section 11 Respects the Territorial Limits of Provincial Power
The Court also considered whether s. 11 respects the territorial limits of provincial power. Justice Karakatsanis held that s. 11 is meaningfully connected to the Province of B.C., respects the legislative sovereignty of other Canadian governments, and any extraterritorial impacts on foreign Crowns’ substantive rights are incidental, not affecting its validity. Section 11 authorizes B.C. to bring an action that maintains a meaningful connection to B.C. through the common issues within the B.C. litigation, the court’s jurisdiction over those issues, and the consent of all participating Crowns through the opt-in or opt-out mechanism. As well, some amount of overlap is inevitable regarding national issues like the opioid epidemic, and governments should be permitted to legislate for their own purposes in these areas of overlap.
Implications
By upholding the validity of B.C.’s class action framework, the Court in Sanis reinforced the ability of provinces to collaborate in large-scale litigation without infringing on each other’s sovereignty. This decision may pave the way for more multi-crown class actions, enabling Canadian governments to work together in responding to public health issues and other challenges.
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