IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
British Columbia v. Apotex Inc.,  
2022 BCSC 1  
Date: 20220104  
Docket: S189395  
Registry: Vancouver  
Between:  
Her Majesty The Queen in Right of the Province of British Columbia  
Plaintiff  
And  
Apotex Inc., Apotex Pharmaceutical Holdings, Inc., Bristol-Myers Squibb  
Canada, Bristol-Myers Squibb Company, Paladin Labs, Endo Pharmaceuticals  
Inc., Endo International PLC, Endo Ventures LTD., Ethypharm Inc., Janssen  
Inc., Johnson & Johnson, Pharmascience Inc., Joddes Limited, Pro Doc  
Limitee, The Jean Coutu Group (PJC) Inc., Mylan Pharmaceutical ULC, Mylan  
N.V., Purdue Pharma Inc., Purdue Pharma L.P., The Purdue Frederick  
Company, Purdue Frederick Inc., Ranbaxy Pharmaceuticals Canada Inc., Sun  
Pharmaceutical Industries LTD., Hikma Labs Inc., Hikma Pharmaceuticals PLC,  
Roxane Laboratories Inc., Boehringer Ingelheim (Canada) Ltd./Boehringer  
Ingelheim (Canada) LTD., West-Wared Columbus Inc., Sanis Health Inc.,  
Sandoz Canada Inc., Sandoz International GMBH, Teva Canada Innovation G.P.  
S.E.N.C., Teva Canada Limited, Teva Pharmaceuticals USA, Inc., Teva  
Pharmaceutical Industries LTD., Actavis Pharma Company, Valeant Canada  
LP/ Valeant Canada S.E.C., Bausch Health Companies Inc., Imperial  
Distributors Canada Inc., Amerisourcebergen Canada Corporation, Kohl &  
Frisch Limited, Kohl & Frisch Distribution Inc., McKesson Corporation,  
McKesson Canada Corporation, Nu-Quest Distribution Inc., Abbott  
Laboratories Inc., United Pharmacists Manitoba Inc., Procurity Inc., Procurity  
Pharmacy Services Inc., Shoppers Drug Mart Inc., Loblaw Companies Limited,  
Unipharm Wholesale Drugs LTD., and LPG Inventory Solutions  
Defendants  
And Between:  
Her Majesty The Queen in Right of the Province of British Columbia  
Plaintiff  
And  
British Columbia v. Apotex Inc.  
Noramco Inc. and BGP Pharma ULC  
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Proposed Defendants  
Brought under the Class Proceedings Act, R.S.B.C. 1996, c. 50  
Corrected Judgment: The list of appearances was corrected on January 12, 2022  
Before: The Honourable Mr. Justice Brundrett  
Reasons for Judgment  
Counsel for Her Majesty The Queen in  
Right of the Province of British Columbia  
Reidar Mogerman, Q.C.  
Luciana P. Brasil  
Jen Winstanley  
(via video)  
Counsel for McKesson Canada Corporation:  
Counsel for LPG Inventory Solutions:  
Sandra A. Forbes  
Rui Gao  
(via video)  
Owen James  
(via video)  
Counsel for Mylan Pharmaceuticals ULC,  
Mylan N.V.:  
Scott Maidment  
Joan Young  
Jennifer Dent  
(via video)  
Counsel for Bristol-Myers Squibb Canada,  
Bristol-Myers Squibb Company:  
David Neave  
Rebecca von Rüti  
(via video)  
Counsel for Teva Canada Limited, Ranbaxy  
Pharmaceuticals Canada Inc.,  
Pharmascience Inc., Actavis Pharma  
Company:  
Laura Fric  
Craig Lockwood  
Robert Carson  
(via video)  
Counsel for Sandoz Canada Inc.:  
Peter Pliszka  
Andrew Borrell  
Tom Posyniak  
(via video)  
British Columbia v. Apotex Inc.  
Page 3  
Counsel for Pro Doc Limitee:  
Kelsey Sherriff  
(watching brief only, via video)  
Counsel for Nu-Quest Distribution Inc.:  
Keith Morgan  
(via video)  
Counsel for Hikma Pharmaceuticals PLC,  
Hikma Labs Inc., West-Ward Columbus  
Inc.:  
Robert McDonell  
(via video)  
Counsel for Amerisourcebergen Canada  
Corporation, Kohl & Frisch Distribution Inc.,  
Kohl & Frisch Limited Procurity Inc.,  
Procurity Pharmacy Services Inc., Unipharm  
Wholesale Drugs Ltd.:  
Roger Horst  
Mahdi Hussein  
(via video)  
Counsel for Imperial Distributors Canada  
Inc.:  
Marko Vesely  
(via video)  
Counsel for The Purdue Frederick Company  
Inc., Purdue Pharma L.P.:  
Danielle Royal  
Lesley Mercer  
(watching brief only, via video)  
Counsel for Sanis Health Inc., Shoppers  
Drug Mart Inc., Loblaw Companies Limited:  
Deborah Glendinning  
Kevin O’Brien  
Seth Whitmore  
(via video)  
Counsel for Janssen Inc., Johnson &  
Johnson:  
Robin Reinertson  
S. Gordon McKee  
Joshua Hutchinson  
(via video)  
Counsel for Paladin Labs Inc., Endo  
Pharmaceuticals Inc., Endo International  
Plc., Endo Ventures Ltd.:  
Michael Feder, Q.C.  
Jill Yates  
Patrick Williams  
(via video)  
Counsel for Apotex Inc.:  
Harry Radomski  
Nando De Luca  
(via video)  
Counsel for Bausch Health Companies Inc.,  
Valeant Canada LP:  
Jim Sullivan, Q.C.  
Andrew Skodyn  
Melanie Baird  
Brady Gordon  
(via video)  
British Columbia v. Apotex Inc.  
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Counsel for Abbott Laboratories Inc.:  
Caroline Zayid  
Byron Shaw  
(Attended April 26, 27, 29, 30)  
Katherine Booth  
Kirsten Marsh  
(via video)  
Counsel for The Jean Coutu Group (PJC)  
Inc.:  
Mary Buttery, Q.C.  
Geoffrey Shaw  
Danielle DiPardo  
Derek Ronde  
(watching brief only, via video)  
Counsel for Ethypharm Inc.  
Counsel for Noramco Inc.:  
Brent B. Olthuis  
Maryanna Dinh  
(watching brief only, via video)  
Joe McArthur  
Laura Cundari  
Patrick Palmer  
(via video)  
Counsel for BGP Pharma ULC:  
Scott Maidment  
Joan Young  
Jennifer Dent  
(via video)  
Place and Date of Trial/Hearing:  
Place and Date of Judgment:  
Vancouver, B.C.  
April 26-30, May 10-12, 2021  
Vancouver, B.C.  
January 4, 2022  
British Columbia v. Apotex Inc.  
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Table of Contents  
INTRODUCTION ....................................................................................................... 7  
THE PARTIES AND THE PROPOSED FURTHER AMENDED CLAIM.................... 9  
OVERVIEW OF THE CAUSES OF ACTION........................................................... 13  
THE GENERAL POSITIONS OF THE PARTIES .................................................... 15  
RELEVANT LEGAL PRINCIPLES ON THE APPLICATION TO STRIKE/AMEND 16  
a) The Relevant Legal Framework .................................................................... 16  
b) Amendment of Pleadings .............................................................................. 19  
c) Applications to Strike..................................................................................... 21  
d) Section 4(1)(a) of the Class Proceedings Act................................................ 23  
GENERAL GROUNDS ON WHICH DEFENDANTS SEEK TO STRIKE / OPPOSE  
AMENDMENT.......................................................................................................... 23  
a) “Lumping” Defendants Together ...................................................................... 23  
b) Proper Characterization of the Plaintiff’s Claims .............................................. 30  
c) Failure to Adequately Particularize Claims....................................................... 32  
d) Lack of Proximity Between the Defendants and the Plaintiff ............................ 33  
e) Alleged Flaws in the Common Design Allegations........................................... 35  
f) Proceeding in the Absence of the Purdue Defendants is Unworkable .............. 40  
STATUTORY CAUSES OF ACTION ...................................................................... 43  
a) Breach of s. 52 of the Competition Act.......................................................... 43  
i) Whether the Province can Claim under the Competition Act..................... 43  
ii) Whether Detrimental Reliance is Required for the Competition Act Claim 49  
b) Breach of s. 9 of the FDA.............................................................................. 52  
BREACHES OF THE COMMON LAW GROUNDING ORA-BASED CAUSES OF  
ACTION ................................................................................................................... 53  
a) Negligent Misrepresentation, Fraudulent Misrepresentation, and Deceit ...... 53  
b) Duty and Failure to Warn .............................................................................. 56  
c) Negligent Design........................................................................................... 59  
d) Negligence .................................................................................................... 63  
THE INDEPENDENT CLAIMS PUBLIC NUISANCE AND UNJUST  
ENRICHMENT......................................................................................................... 63  
a) Public Nuisance ............................................................................................ 63  
i.  
The Public Nuisance Claim Generally ....................................................... 65  
ii. A Public Good............................................................................................ 68  
British Columbia v. Apotex Inc.  
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iii. Unreasonable Interference ........................................................................ 69  
iv. “Undue Expansion” of Public Nuisance ..................................................... 70  
v. Conclusion on Public Nuisance ................................................................. 74  
b) Unjust Enrichment......................................................................................... 74  
CLAIMS UNDER THE HCCRA ............................................................................... 77  
CLAIMS UNDER OTHER HEALTH CARE RECOVERY STATUTES .................... 84  
CONCLUSION ON APPLICATIONS TO STRIKE / AMEND................................... 85  
APPLICATIONS TO ADD NORAMCO AND OTHER PARTIES............................. 87  
a) Overview ....................................................................................................... 87  
b) Applicable Legal Principles ........................................................................... 88  
i) A Question or Issue Between the Plaintiff and Noramco that Relates to or  
is Connected with the Relief, Remedy, or Subject Matter of the Proceeding 91  
ii) Just and Convenient .............................................................................. 93  
CONCLUSION......................................................................................................... 96  
British Columbia v. Apotex Inc.  
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INTRODUCTION  
[1]  
This is a putative class proceeding brought by the plaintiff, Her Majesty the  
Queen in Right of the Province of British Columbia (the “Province”), to recover  
healthcare and other costs on its own behalf and on behalf of other provincial and  
federal governments. The defendants and proposed defendants comprise  
approximately 50 pharmaceutical manufacturers, wholesalers, and distributors who  
are alleged to have been involved in the manufacture, marketing, distribution, or sale  
of opioid-related products in Canada. The plaintiff alleges that the defendants’  
wrongful conduct in the manufacture, sale, marketing, promotion, and distribution of  
opioid products caused or contributed to an opioid epidemic that has resulted in  
extensive and devastating personal and public consequences. Its wide-ranging  
action encompasses numerous common law and statutory claims to recover  
healthcare costs and damages from 1996 to the present.  
[2]  
The plaintiff’s claim was originally filed on August 29, 2018. It was amended  
with the filing of an amended notice of civil claim on June 20, 2019 after the passage  
of the Opioid Damages and Health Care Costs Recovery Act, S.B.C. 2018, c. 35  
[ORA]. Counsel for the plaintiff advises that their certification application, along with  
supporting affidavits, was served in September of 2020. A second amended notice  
of civil claim, adding various parties by consent, was filed on March 29, 2021. Still,  
this proceeding remains in its early stages. Discoveries had not yet taken place at  
the time this matter was argued. Jurisdictional and constitutional challenges remain  
outstanding. A certification hearing has yet to be held.  
[3]  
Presently, I have three applications before me:  
a) The plaintiff applies to further amend its notice of civil claim under Rule 6-1(1)  
of the Supreme Court Civil Rules (the “Rules”). The plaintiff’s proposed third  
round of amendments provides further particulars of the defendants’ alleged  
conduct, adds the cause of action of public nuisance, and clarifies its other  
various causes of action.  
 
British Columbia v. Apotex Inc.  
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b) Numerous defendants apply under R. 9-5(1) to strike aspects of the plaintiff’s  
existing notice of civil claim or, if the plaintiff’s amendment is allowed, the  
plaintiff’s further amended notice of civil claim (“FANCC”).  
c) The plaintiff seeks leave pursuant to R. 6-2(7) to add certain proposed  
defendants to this action. The additional proposed defendants originally  
included Ethypham Inc., BGP Pharma ULC (“BGP”), Endo Ventures Ltd.,  
Boehringer Ingelheim (Canada) Ltd. / Boehringer Ingelheim (Canada) Ltee.,  
Roxane Laboratories Inc., Teva Canada Innovation G.P. S.E.N.C., and  
Noramco Inc. (“Noramco”) (collectively, the “Proposed Defendants”). Of these  
seven, all except Noramco and BGP consented to be added to the claim  
(while maintaining their applications to strike). After hearing BGP’s  
submission, the plaintiff changed its position and agreed to dismiss the  
application to add BGP, without costs. The result is that the only contested  
application to add a defendant is in relation to Noramco.  
[4]  
The issues in paragraphs (a) and (b) above turn on an assessment of the  
validity of aspects of the plaintiff’s pleadings. The application to amend and  
applications to strike involve similar determinations as to whether the plaintiff’s  
current or proposed pleadings disclose viable claims in relation to the causes of  
action pleaded. This assessment depends primarily on whether it is plain and  
obvious that the claims disclose no reasonable cause of action, though it also  
involves consideration of whether the claims are unnecessary, prejudicial, or  
otherwise an abuse of process. In other words, the defendants say that many of the  
plaintiff’s claims have no reasonable prospect of success and are bound to fail.  
[5]  
With respect to item (c) above, the application to add Noramco turns on  
Noramco’s particular circumstances. Noramco argues that it is a mere supplier of  
active pharmaceutical ingredients (“APIs”) for opioid products. It argues that, as  
such, it stands in a different position and ought not to be lumped in with the claims  
against the other manufacturer defendants.  
British Columbia v. Apotex Inc.  
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[6] Earlier in these proceedings, I ruled that various preliminary motions by the  
defendants should be heard in conjunction with the certification hearing: British  
Columbia v. Apotex Inc., 2020 BCSC 412. On appeal, the Court of Appeal reversed  
part of my decision concerning two Quebec defendants and ordered that their  
jurisdiction simpliciter challenges be heard in advance of the certification hearing:  
British Columbia v. The Jean Coutu Group (PJC) Inc., 2021 BCCA 219 at para. 95.  
[7]  
After my sequencing decision, the plaintiff filed its applications to further  
amend its notice of civil claim and to add parties. I directed that these applications  
take place in advance of the certification hearing to solidify the goalposts and parties  
going into the certification hearing. However, these applications overlap with the  
defendants’ motions to strike in that all involve some consideration of the viability of  
various causes of action.  
[8]  
By agreement, counsel all requested to determine these issues at this early  
stage. Given the unanimous position of counsel, I agreed that it is appropriate to  
hear these applications prior to a certification hearing.  
[9]  
For the reasons that follow, the plaintiff’s application for leave to further  
amend its notice of civil claim, including to add Noramco as a defendant, is granted  
and, with the exception of the plaintiff’s alternative claim to recovery under the  
Health Care Costs Recovery Act, S.B.C. 2008, c. 27 [HCCRA], the defendants’  
motions to strike the plaintiff’s claims in the FANCC are dismissed.  
THE PARTIES AND THE PROPOSED FURTHER AMENDED CLAIM  
[10] The plaintiff filed its application to amend pleadings on January 19, 2021. A  
large number of the defendants have filed applications to strike all of the plaintiff’s  
claims, challenging both the existing pleadings and the proposed amendments in the  
FANCC. The plaintiff filed a response to the applications to strike on April 6, 2021.  
[11] There are currently three forms of pleadings before the Court:  
 
British Columbia v. Apotex Inc.  
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1. the second amended notice of civil claim filed on March 29, 2021 (including  
additional defendants added by consent);  
2. the proposed Noramco claim, which is subject to the plaintiff’s application to  
add defendant(s); and  
3. the FANCC, which is subject to the plaintiff’s application to amend.  
[12] The plaintiff has filed a consolidated version of its pleadings that includes the  
proposed amendments sought on the application to amend and the application to  
add additional defendants. I will quote where appropriate from the FANCC.  
[13] The plaintiff says the proposed amendments in the FANCC seek to:  
1. reorganize, revise, recast, supplement, and particularize claims pleaded in  
the second amended notice of civil claim;  
2. add a new claim of public nuisance;  
3. make new allegations of “common design” amongst each group of defendants  
and between the Distributor and Manufacturer Defendants in various  
combinations;  
4. add the protective language agreed to between the plaintiff and the Purdue  
Pharma Inc., Purdue Pharma L.P., The Purdue Frederick Company Inc., and  
Purdue Frederick Inc. (collectively, the “Purdue Defendants”); and  
5. add claims against the Proposed Defendants.  
[14] The representative plaintiff is the Province of British Columbia. At para. 128 of  
the FANCC, the plaintiff pleads that it brings its action to recover healthcare benefits  
on its own behalf the following classes:  
(a) all federal, provincial, and territorial governments that, during the period  
from 1996 to the present (the “Class Period”), paid healthcare,  
pharmaceutical, treatment and other costs related to Opioids (the “Class”);  
and  
British Columbia v. Apotex Inc.  
Page 11  
(b) all federal, provincial, and territorial governments that have legislation  
specifically directed at recovery of damages and healthcare costs arising  
from the Opioid Epidemic as defined below (the “ORA Subclass”).  
[15] The “Class Members” referred to in subpara. 128(a) of the FANCC are said to  
include the “ORA Subclassreferred to in subpara. 128(b).  
[16] The defendants are divided into manufacturer and distributor defendants,  
which groups are defined as follows at paras. 6 and 7 of the FANCC:  
6. The Manufacturer Defendants (as defined below in paragraph 102) marketed  
and promoted Opioids in Canada as less addictive than was actually known  
to the Manufacturer Defendants and for conditions the Manufacturer  
Defendants knew the drugs were not effective in treating. Such marketing  
and promotion efforts by the Manufacturer Defendants resulted in an increase  
in prescription and use of all Opioids, including long and short-acting Opioids.  
7. The Distributor Defendants (as defined below in paragraph 127) delivered the  
Opioids manufactured and marketed by the Manufacturer Defendants to  
pharmacies and hospitals in Canada in quantities that they knew or should  
have known exceeded any legitimate market. Such distribution efforts by the  
Distributor Defendants intensified the crisis of Opioid abuse, addiction and  
death in Canada. Where a particular entity within a corporate family of  
Defendants engaged in unlawful conduct, it did so on behalf of all entities  
within that corporate family.  
(the “Manufacturer Defendants” and the “Distributor Defendants” respectively)  
[17] The plaintiff sets out various families of Manufacturer Defendants and  
Distributor Defendants at paras. 9127 of the FANCC. Within each family of  
defendants, the business, role, responsibilities, and interrelationships of the  
defendants are described to varying extents.  
[18] The plaintiff further subcategorizes certain Manufacturer Defendants as  
manufacturing, marketing, and selling generic opioids in Canada during the class  
period (the “Generic Manufacturer Defendants”). The plaintiff’s claims against the  
Generic Manufacturer Defendants are particularized at paras. 207215 of the  
FANCC. It is alleged that the Generic Manufacturer Defendants sought to benefit  
from the opioid misrepresentations and the market created by the other  
manufacturer defendants, the so-called “Brand Manufacturer Defendants,” by  
manufacturing, marketing, and selling generic opioids.  
British Columbia v. Apotex Inc.  
Page 12  
[19] As of the date of argument, proceedings against the Purdue Defendants were  
stayed as a result of orders made in Chapter 11 bankruptcy proceedings in the  
United States and recognized by the Ontario Superior Court of Justice in  
proceedings under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-  
36: see Purdue Pharma L.P., Re., 2019 ONSC 7042. Earlier this year, I ruled that  
the Ontario stay of proceedings pertaining to the Purdue Defendants should not  
stand in the way of this matter proceeding going forward in respect of the remaining  
parties: British Columbia v. Apotex Inc., 2021 BCSC 346.  
[20] Consistent with the stay of proceedings, counsel for the Purdue Defendants  
did not participate in the present applications. Moreover, the FANCC has been  
drafted in such a way that it does not presently seek to advance allegations against  
the Purdue Defendants nor allege that they formed part of any common design  
among the defendants.  
[21] During the hearing of the present applications, the plaintiff discontinued  
proceedings against Abbott Laboratories Inc. Since the hearing of the present  
applications, the plaintiff has also discontinued its claims against Sandoz  
International GMBH and Loblaw Companies Limited.  
[22] The plaintiff devotes paras. 133157 of the FANCC to describing an “Opioid  
Epidemic.” At a broad level, the plaintiff alleges that the defendants “have created or  
assisted in the creation of an epidemic of addiction” that has allegedly “caused  
deaths and serious and long-lasting injury to public peace, health, order and safety,  
significantly harming the plaintiff and impacting its ability to deliver health care to the  
citizens of British Columbia”: para. 156 of the FANCC. The plaintiff refers to the past,  
ongoing, and future impacts of this conduct on the plaintiff, Class Members, and  
Canadian residents as the “Opioid Epidemic.”  
[23] At paras. 158206 of the FANCC, the plaintiff describes various conduct by  
the Manufacturer Defendants that the plaintiff alleges give rise to liability, including  
aggressively and improperly marketing opioids and making opioid  
misrepresentations as to the nature and effects of opioids.  
British Columbia v. Apotex Inc.  
Page 13  
[24] At paras. 216235 of the FANCC, the plaintiff attributes various improper  
practices by the Distributor Defendants pertaining to the supply of opioids that the  
plaintiff alleges lead to liability.  
[25] At paras. 238241 of the FANCC, the plaintiff sets out the damage suffered  
by the plaintiff and the Class Members in the form of substantial expenses for opioid  
prescriptions and other healthcare costs related to the use of opioids.  
[26] In terms of particularizing claims, the plaintiff specifies in the FANCC the  
names of the impugned opioid products manufactured by the Manufacturer  
Defendants and Generic Manufacturer Defendants, and provides additional  
examples of specific promotional activities underlying the opioid misrepresentations.  
OVERVIEW OF THE CAUSES OF ACTION  
[27] The FANCC includes common law causes of action and statutory causes of  
action created through legislation. Of the latter, most of the claims depend on the  
ORA for their operation. The plaintiff submits that the duties the law imposes with  
respect to design, warning of risks, and manufacturing underpin the application of  
the ORA. The ORA is similar to legislation that was previously enacted in tobacco  
litigation: see the Tobacco Damages and Health Care Costs Recovery Act, S.B.C.  
2000, c. 30.  
[28] A more general statute, the HCCRA, allows the plaintiff to pursue subrogated  
claims to recover past and future health care costs from wrongdoers and their  
insurers. The plaintiff relies on the HCCRA, in the alternative to the ORA, to found its  
statute-based claims.  
[29] Returning to the ORA, s. 2(1) provides that “[t]he government 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.” Hence, the ORA  
establishes a cause of action for an "opioid-related wrong," defined as follows at s.  
1(1):  
opioid-related wrongmeans  
 
British Columbia v. Apotex Inc.  
a) a tort that is committed in British Columbia by a manufacturer or  
Page 14  
wholesaler and that causes or contributes to opioid-related disease, injury or  
illness, or  
b)  
in an action under section 2 (1), a breach, by a manufacturer or  
wholesaler, of a common law, equitable or statutory duty or obligation owed  
to persons in British Columbia who have used or been exposed to or might  
use or be exposed to an opioid product;  
[Emphasis added.]  
[30] Based on the above, the plaintiff submits that it is sufficient for it to plead the  
existence and breach of a common law, equitable, or statutory duty or obligation  
owed to persons in B.C. The particular breach would then be taken up by the direct  
cause of action mandated by the ORA scheme.  
[31] More specifically, the plaintiff summarizes the claims it advances in the  
proposed amendments as follows:  
a. as against all defendants:  
i.  
negligence in the form of negligent design, failure to warn and  
negligent/fraudulent misrepresentation (as a breach of a common law  
duty to ground an “opioid related wrong” as defined in the ORA or, in  
the alternative, as a basis for liability under the HCCRA);  
ii.  
failure to warn (as a breach of a common law duty to ground an  
“opioid-related wrong” under the ORA and in the alternative, as a  
basis for liability under the HCCRA); and  
iii.  
public nuisance;  
b. as against the Manufacturer Defendants:  
i.  
breach of the Competition Act, RSC, 1985, c. C-34 (as a statutory  
claim by itself and as a breach of a statutory duty to ground an  
“opioid-related wrong” under the ORA, or, in the alternative, as a basis  
for liability under the HCCRA);  
ii.  
breach of the Food and Drugs Act, RSC 1985, c. F-27 (as a breach of  
a statutory duty to ground an “opioid-related wrong”);  
iii.  
negligent design (as a breach of a common law duty to ground an  
“opioid-related wrong” and as a common law cause of action  
grounding the alternative claim under the HCCRA);  
iv.  
v.  
negligent misrepresentation, fraudulent misrepresentation and deceit  
(as a breach of a common law duty to ground an “opioid-related  
wrong”); and  
unjust enrichment.  
British Columbia v. Apotex Inc.  
Page 15  
[32] The plaintiff also advances allegations of common design with respect to  
certain defendant groups, between the Manufacturer Defendants, and between the  
Manufacturer and Distributor Defendants. On this point, the plaintiff submits that it  
does not rely upon allegations of common design as an independent cause of action  
in and of itself, but rather as a form of joint or concerted action liability that provides  
a pathway to liability for other torts. The plaintiff has not alleged the tort of  
conspiracy.  
THE GENERAL POSITIONS OF THE PARTIES  
[33] The defendants seek to strike all of the plaintiff’s claims without leave to  
amend. The defendants’ arguments include the following:  
1. the plaintiff has no reasonable claims under the pleaded statutes, and the  
various causes of action are bound to fail;  
2. the plaintiff has not adequately pleaded the material facts or provided  
particulars as required by the Rules;  
3. the proposed amendments advance claims against groups of defendants  
without particularizing the claims against each individual defendant;  
4. there is no duty of care owed by the defendants to the plaintiff to ground a  
claim in negligence;  
5. there is a juristic reason for any alleged enrichment of the defendants;  
6. waiver of tort is no longer a legally viable claim;  
7. the proposed allegations of common design are bound to fail or are  
unnecessary or vexatious; and  
8. advancing the proposed amendments in the FANCC without prejudice to the  
Purdue Defendants is unworkable.  
 
British Columbia v. Apotex Inc.  
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[34] Generally, the defendants submit that the various causes of action the plaintiff  
proposes to advance are fatally flawed because they do not plead the necessary  
material facts to permit the defendants to know the case they have to meet. They  
say the FANCC contains vague claims, bald allegations, and bare assertions. The  
defendants submit the FANCC fails to meet the requirements to plead material facts  
as set out in the Rules and the guiding jurisprudence, and that the plaintiff has failed  
to properly plead the causes of action it seeks to advance.  
[35] The plaintiff submits that the FANCC wrestles with and articulates the gravity  
and scope of what it says is an opioid epidemic that has impacted the broader  
community in British Columbia and other provinces. It submits that the FANCC  
attempts to capture the scope of this community-level crisis.  
[36] In assessing the pleadings issues, the plaintiff asks me to bear in mind that  
the proceeding remains at an early, pre-discovery phase where informational  
asymmetry exists between the parties. It submits that the pleadings are responsive  
to the point in time of the case.  
[37] The plaintiff also submits that it is reasonable to categorize the defendants at  
a general level by grouping defendants into categories and then making allegations  
about what the categories of defendants did that gives rise to liability. The plaintiff  
also asks me to take notice of the impact of the opioid-related litigation in the United  
States and to draw support from American jurisprudence, particularly with respect to  
its public nuisance claim.  
RELEVANT LEGAL PRINCIPLES ON THE APPLICATION TO STRIKE/AMEND  
a) The Relevant Legal Framework  
[38] In assessing the FANCC in light of the defendants’ applications to strike, I  
would bear in mind the requirements for contents of a notice of civil claim set out in  
R. 3-1(2):  
Contents of notice of civil claim  
(2) A notice of civil claim must do the following:  
   
British Columbia v. Apotex Inc.  
(a) set out a concise statement of the material facts giving rise to the  
Page 17  
claim;  
(b) set out the relief sought by the plaintiff against each named  
defendant;  
(c) set out a concise summary of the legal basis for the relief sought;  
[. . .]  
(g) otherwise comply with Rule 3-7.  
[39] Rule 3-7 further guides the content of pleadings and provides in part as  
follows:  
(1) A pleading must not contain the evidence by which the facts alleged in  
it are to be proved.  
[. . .]  
(9) Conclusions of law must not be pleaded unless the material facts  
supporting them are pleaded.  
[. . .]  
(17) It is sufficient to allege malice, fraudulent intention, knowledge or other  
condition of the mind of a person as a fact, without setting out the  
circumstances from which it is to be inferred.  
(18) If the party pleading relies on misrepresentation, fraud, breach of trust,  
wilful default or undue influence, or if particulars may be necessary, full  
particulars, with dates and items if applicable, must be stated in the pleading.  
[40] The object of the Rules is set out in R. 1-3:  
Object  
(1) The object of these Supreme Court Civil Rules is to secure the just,  
speedy and inexpensive determination of every proceeding on its merits.  
Proportionality  
(2) Securing the just, speedy and inexpensive determination of a proceeding  
on its merits includes, so far as is practicable, conducting the proceeding in  
ways that are proportionate to  
(a) the amount involved in the proceeding,  
(b) the importance of the issues in dispute, and  
(c) the complexity of the proceeding.  
[41] Form 1 of Appendix A of the Rules, which further provides for the format of a  
notice of civil claim, references a “concise statement of the material facts” and “a  
British Columbia v. Apotex Inc.  
Page 18  
concise summary of the legal bases” on which the plaintiff intends to rely in support  
of the relief sought.  
[42] The general objects and requirements of a notice of civil claim were  
discussed by Justice Voith (as he then was) in Sahyoun v. Ho, 2013 BCSC 1143  
[Sahyoun 2013], and succinctly summarized by Justice Winteringham in James v.  
Johnson & Johnson Inc., 2021 BCSC 488 [James] as follows:  
[57] . . . Justice Voith underscores the object of the Rules, which is to secure  
the just, speedy, and inexpensive determination of every proceeding on its  
merits. He notes the requirements in Rule 3-1(2), that a notice of civil claim  
"set out a concise statement of the material facts giving rise to the claim" and  
"set out a concise summary of the legal basis for the relief sought", are  
mandatory and directed to promoting clarity. And he explains that, "[a]  
material fact is one that is essential in order to formulate a complete cause of  
action. If a material fact is omitted, a cause of action is not effectively pled."  
[58] Citing Frederick M. Irvine, ed., McLachlin and Taylor, British Columbia  
Practice, 3rd ed., vol. 1 (Markham, Ont.: LexisNexis Canada Inc., 2006),  
Voith J. notes that the material facts of each cause of action should disclose  
the three elements essential to every cause of action: the plaintiff's right or  
title; the defendant's wrongful act violating that right or title; and the  
consequent damage.  
[59] Justice Voith also notes the requirement for a proper articulation of the  
legal basis supporting the claim(s) (Sahyoun at para. 33).  
[43] Justice Voith again had occasion to comment on the framework and purpose  
of the Rules in Mercantile Office Systems Private Limited v. Worldwide Warranty Life  
Services Inc., 2021 BCCA 362 as follows:  
[21]  
Pleadings are foundational. They guide the litigation process. This is  
true in relation to the discovery of documents, examinations for discovery,  
many interlocutory applications and the trial itself.  
[22]  
Pleadings also give effect to the underlying policy objectives of the  
Rules, which are to ensure the litigation process is fair and to promote justice  
between the parties: Wong v. Wong, 2006 BCCA 540 at paras. 2223. They  
enable the parties and the court “to ascertain with precision the matters on  
which parties differ and the points on which they agree; and thus to arrive at  
certain clear issues on which both parties desire a judicial decision”: 1076586  
Alberta Ltd. v. Stoneset Equities Ltd., 2015 BCCA 182 at para. 55, citing D.B.  
Casson & I.H. Dennis, eds, Odgers’ Principles of Pleading and Practice in  
Civil Actions in the High Court of Justice, 21st ed (London: Stevens & Sons,  
1975) at 7576.  
[23]  
For the court, pleadings serve the ultimate function of defining the  
issues of fact and law that will be determined by the court. In order for the  
British Columbia v. Apotex Inc.  
Page 19  
court to fairly decide the issues before them, the pleadings must state the  
material facts succinctly: Sahyoun v. Ho, 2013 BCSC 1143 at paras. 1522;  
Shoolestani v. Ichikawa, 2018 BCCA 155 at para. 30; Weaver v. Corcoran,  
2017 BCCA 160 at para. 63. They must be organized in such a way that the  
court can understand what issues the court will be called upon to decide:  
Frederick M. Irvine, ed., McLachlin & Taylor, British Columbia Practice, 3rd  
ed, vol 1 (Markham, Ont.: LexisNexis Canada Inc., 2006) (looseleaf updated  
2021) at 36; Simon v. Canada (Attorney General), 2015 BCSC 924 at paras.  
17–18, aff’d 2016 BCCA 52.  
[44] In reviewing the relevant legal framework, Voith J.A. at paras. 1617 stated  
that the Rules provide a requirement that the pleading party set out the material  
facts they rely on and place emphasis on being concise. Rule 22-3(1) prescribes that  
[t]he forms in Appendix A or A.1 must be used if applicable, with variations as the  
circumstances of the proceedings require,” which is some indication that the context  
informs how comprehensive and prescriptive the requirements for specific  
categories of pleadings must operate.  
b) Amendment of Pleadings  
[45] Rule 6-1(1) of the Rules sets out the circumstances under which a party may  
amend pleadings:  
When pleadings may be amended  
(1) Subject to Rules 6-2 (7) and (10) and 7-7 (5), a party may amend the  
whole or any part of a pleading filed by the party, other than to change parties  
or withdraw an admission,  
(a) once without leave of the court, at any time before service  
of the notice of trial, or  
(b) after the notice of trial is served, only with  
(i) leave of the court, or  
(ii) written consent of the parties.  
[46] The plaintiff already amended its pleadings once without leave on June 20,  
2019. Accordingly, it must now obtain leave of the court to further amend its  
pleadings.  
[47] Applications for leave to amend pleadings are considered on the same basis  
as applications to strike pleadings, outlined below. The test to amend pleadings  
 
British Columbia v. Apotex Inc.  
Page 20  
is whether it is plain and obvious that the proposed amendments are bound to fail:  
British Columbia (Director of Civil Forfeiture) v. Violette, 2015 BCSC 1372 at para.  
40 [Violette].  
[48] In Continental Steel Ltd. v. CTL Steel Ltd., 2014 BCSC 104, Justice Kent  
helpfully summarized the principles that govern the granting of leave to amend  
pleadings as follows:  
[26]  
Some of the basic principles governing applications for leave to  
amend pleadings include:  
1. The court has a wide discretion to permit amendments so  
as to enable the real issues between the parties to be  
determined;  
2. The discretion to permit amendments is unfettered, subject  
only to the general rule that it be exercised judicially;  
3. The overriding consideration is the interests of justice  
generally and to direct what is just and convenient between  
the parties;  
4. Amendments may not be allowed if they would cause  
actual and meaningful prejudice to the opposing party that  
cannot otherwise be dealt with in costs;  
5. Additional considerations include any delays in applying for  
the amendment, the reasons for such delay, and whether  
deliberate or voluntarily dilatory conduct is involved; and  
6. While useless amendments which do not advance a  
reasonable cause of action or defence are to be avoided,  
justice is generally best served by permitting amendments that  
will allow the real controversy between the parties to be  
decided on the merits.  
[Citations omitted; emphasis added.]  
[49] The court will not grant leave where the proposed amendments violate the  
rules governing pleadings: Colter Developments Ltd. v. Squamish JV Ltd., 2015  
BCSC 415 at paras. 21, 23.  
[50] In the context of class actions, the courts tend to be generous in making  
available the possibility of amendments to fine-tune the pleadings and to bring  
clarification to obscure issues. However, fairness and access to justice  
considerations require that the essentials of a cause of action must be pleaded, or  
British Columbia v. Apotex Inc.  
Page 21  
the pleading will be found to be inadequate. The court will also consider the length of  
time the plaintiff has had to get it right: Sandhu v. HSBC Finance Mortgages Inc.,  
2016 BCCA 301 at para. 44 [Sandhu].  
c) Applications to Strike  
[51] Applications to strike pleadings are considered under R. 9-5(1) of the Rules  
as follows:  
Scandalous, frivolous or vexatious matters  
(1) At any stage of a proceeding, the court may order to be struck out or  
amended the whole or any part of a pleading, petition or other document on  
the ground that  
(a) it discloses no reasonable claim or defence, as the case  
may be,  
(b) it is unnecessary, scandalous, frivolous or vexatious,  
(c) it may prejudice, embarrass or delay the fair trial or hearing  
of the proceeding, or  
(d) it is otherwise an abuse of the process of the court,  
and the court may pronounce judgment or order the proceeding to be  
stayed or dismissed and may order the costs of the application to be  
paid as special costs.  
[52] Pursuant to R. 9-5(2), no evidence is admissible on an application under R. 9-  
5(1)(a). However, applications under R. 9-5(1)(b) (d) are contextually driven. They  
permit and arguably require external facts or evidence: Krist v. British Columbia,  
2017 BCCA 78 at para. 24.  
[53] A pleading will only be struck under R. 9-5(1)(a) if, assuming the facts as  
pleaded are true, it is plain and obvious that the pleading discloses no reasonable  
cause of action. When considering an application to strike under this provision, the  
facts as pleaded are assumed to be true unless they are manifestly incapable of  
being proven: Nevsun Resources Ltd. v. Araya, 2020 SCC 5 at para. 64 [Nevsun];  
R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at paras. 17, 22 [Imperial  
Tobacco].  
 
British Columbia v. Apotex Inc.  
Page 22  
[54] A pleading is “unnecessary” or “vexatious” as described in R. 9-5(1)(b) if it  
does not go to establishing the plaintiff’s cause of action, does not advance any  
claim known in law, is without bona fides, is hopelessly oppressive, or causes the  
other party anxiety, trouble, or expense: Simon v. Canada (Attorney General), 2017  
BCSC 1438 at para. 50 [Simon], aff’d 2018 BCCA 461; The Public Guardian and  
Trustee of British Columbia v. Johnston, 2016 BCSC 1388, aff’d 2017 BCCA 59.  
[55] An embarrassing pleading described in R. 9-5(1)(c) is a pleading that is  
irrelevant to the claims and issues before the court and would involve needless  
expense and delay: Simon at para. 52 citing Sahyoun (Committee of) v. Ho, 2015  
BCSC 392, aff’d 2017 BCCA 96, leave to appeal ref’d [2018] S.C.C.A. No. 37581  
(S.C.C.).  
[56] In Moses v. Lower Nicola Indian Band, 2015 BCCA 61 at para. 45, Justice  
Newbury held that it is important to bear in mind the “high onus” that must be met  
before a cause of action may be struck under rule R. 9-5.  
[57] In assessing pleadings under R. 9-5(1), the court must read the pleadings  
generously and consider the claims as pleaded or as they may reasonably be  
amended: British Columbia/Yukon Association of Drug War Survivors v. Abbotsford  
(City), 2015 BCCA 142 at para. 15 [Association of Drug War Survivors]. The court  
will be generous and will err on the side of permitting a novel but arguable claim to  
proceed to trial: Nevsun at para. 66; Imperial Tobacco at para. 21. However, no  
special consideration is given for class actions; each claim must stand or fall on the  
pleadings: Scott v. Canada (Attorney General), 2013 BCSC 1651 at para. 21, rev’d  
on other grounds 2017 BCCA 422, leave to appeal ref’d [2018] S.C.C.A. No. 37930  
(S.C.C.).  
[58] In both R. v. Imperial Tobacco Canada, 2011 SCC 42 at paras. 1920, and  
Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 at paras. 1819 [Babstock], the  
Court pointed to the need to strike out hopeless claims that “have no reasonable  
chance of success” and this practice being a “valuable housekeeping measure.”  
British Columbia v. Apotex Inc.  
Page 23  
[59] Finally, in exercising my discretion, I would bear in mind the option of  
permitting an amendment to the pleadings, which is preferable to dismissing  
inadequate pleadings. The exercise of that discretion may be impacted by the  
degree to which the pleadings are deficient, the extent to which any deficiencies may  
be addressed by an obvious or straightforward amendment, the apparent merit of  
the claim that may be made out with amendment, and the prejudice that may be  
incurred by dismissing the claim: Jones v. Bank of Nova Scotia, 2018 BCCA 381 at  
para. 35.  
d) Section 4(1)(a) of the Class Proceedings Act  
[60] A requirement for the certification of a class action is that the pleadings must  
disclose a cause of action: Class Proceedings Act, R.S.B.C. 1996, c. 50, s. 4(1)(a)  
[CPA]. This question is assessed on the same standard as an application to strike  
pleadings under R. 9-5(1), namely, assuming the facts as pleaded are true, whether  
it is plain and obvious that the claim has no reasonable prospect of success: Service  
v. University of Victoria, 2019 BCCA 474 at para. 55, citing Pro-Sys Consultants Ltd.  
v. Microsoft Corp., 2013 SCC 57 at para. 63 [Pro-Sys]; Sandhu at para. 44.  
[61] Given the concurrent hearing of the plaintiff’s application to amend its  
pleadings and the defendants’ applications to strike, I find it appropriate to consider  
the applications to strike on the basis of the FANCC, with its proposed amendments.  
In other words, I would adopt the approach of testing the proposed amendments in  
the FANCC under R. 9-5 and the rules governing pleadings, and allow the plaintiff to  
amend its pleadings to include the claims that survive that scrutiny.  
GENERAL GROUNDS ON WHICH DEFENDANTS SEEK TO STRIKE / OPPOSE  
AMENDMENT  
a) “Lumping” Defendants Together  
[62] Some of the defendants take issue with the structure of the FANCC in so far  
as the plaintiff groups the defendants into Manufacturer Defendants, Generic  
Manufacturer Defendants, and Distributor Defendants and advances its claims  
against each group of defendants as if it consisted of a single defendant. The  
     
British Columbia v. Apotex Inc.  
Page 24  
defendants argue that this format constitutes impermissibly broad characterization,  
underlying many of the defendants’ positions that the pleadings disclose no  
reasonable cause of action.  
[63] There are some differences between the corporate defendants, and many  
defendants argue that lumping such diverse defendants together offends the rules of  
pleadings. Further, the defendants submit that, although certain acts and omissions  
of a group of defendants are particularized, few, if any, acts or omissions are  
attributed explicitly to the defendants individually. Rather, the plaintiff uses the terms  
“Manufacturer Defendants,” “Generic Manufacturer Defendants,” or “Distributor  
Defendants”; alleges that each defendant is a member of an identified group; and  
then alleges that each group is liable in certain claims.  
[64] The defendants argue that such a pleading is vague, ambiguous, and  
substantively inappropriate, particularly where, as here, the plaintiff has impleaded  
many groups of disparate defendants to complain about different products, market  
events, and asserted harms spanning many years from 1996 forward. The  
defendants submit that it is inappropriate to either “lump” defendants or causes of  
action together where, in reality, what is being asserted are separate claims against  
separate parties. The defendants submit that the plaintiff’s proposed blanket  
allegations do nothing to particularize and delineate the particulars of each cause of  
action as against each defendant: Canfor Pulp Limited Partnership v. Siemens  
Building Technologies Ltd., 2016 BCSC 2089 at paras. 1618, 22 [Canfor Pulp];  
Stoneman v. Denman Island Local Trust Committee, 2010 BCSC 636 at paras. 26–  
27 [Stoneman]; Martin v. Astrazeneca Pharmaceuticals Plc, 2012 ONSC 2744 at  
paras. 117121, 126 [Martin]. The defendants submit that, due to the lack of material  
facts in support of each of the plaintiff’s claims, they are left guessing as to what  
conduct is alleged against which defendant in relation to which product.  
[65] There appear to be two aspects to the defendants’ argument on this issue.  
First, they argue that the plaintiff impermissibly groups the defendants into  
Manufacturer Defendants, Generic Manufacturer Defendants, and Distributor  
British Columbia v. Apotex Inc.  
Page 25  
Defendants, also known as the “bucket approach.” Second, they argue that the  
plaintiff impermissibly groups corporate entities together within interrelated corporate  
families, also known as the “enterprise approach” (e.g. grouping Endo Ventures Ltd.,  
Paladin Labs, Endo Pharmaceuticals Inc., and Endo International PLC together as  
the “Endo Defendants”).  
[66] I do not find Canfor Pulp and Stoneman to be of assistance because those  
decisions are not comparable to the present context. In those cases, the defendants  
occupied very distinct roles in relation to the plaintiffs, and the defects in the  
pleadings came from their failure to distinguish between and particularize those  
relationships and the various defendants’ actions. Also, in Stoneman, the Court  
found the pleadings to be wholly inadequate on many levels. In the case at bar, the  
grouped defendants perform very similar functions and stand in similar positions in  
relation to the plaintiff and the actions they are alleged to have undertaken.  
[67] The defendants adopt the words of the Court in Martin in support of their  
position that the plaintiff impermissibly uses the enterprise approach in its pleadings.  
However, the Court in Martin at para. 126 found that the pleading in issue was a  
“bald pleading, unsupported by any material facts”—a characterization that I would  
not adopt here. Whereas here the FANCC does identify the actions specific to each  
defendant group (albeit concisely), the Court in Martin offered the following  
contrasting description of the pleadings:  
[119]  
The plaintiffs fail to identify the specific acts undertaken by each  
defendant which support these causes of action. The only pleaded conduct  
that is personal to any defendant is that AZ Canada "was involved in and/or  
responsible for the sales, distribution and marketing of Seroquel in Canada."  
The defendants, AZ U.K. and AZ U.S., are identified simply as "affiliate[s]" of  
AZ Canada. There is no indication of which defendant was the designer or  
manufacturer of Seroquel. Instead, the plaintiffs attribute liability to the  
defendants en masse, asserting that "[t]he business of each… is inextricably  
interwoven with that of the other and each is the agent of the other for the  
purposes of research, development, manufacture, marketing, sale and/or  
distribution of Seroquel in Canada." This bald assertion of enterprise liability  
is deficient for three reasons.  
British Columbia v. Apotex Inc.  
Page 26  
[68] This Court in Mueller v. Nissan Canada Inc., 2021 BCSC 338 at para. 68  
noted that the reasoning in Martin was less forgiving than other authorities, including  
Panacci v. Volkswagen, 2018 ONSC 6312 and Kalra v. Mercedes Benz, 2017  
ONSC 3795.  
[69] Other cases have approved of a “lumping” approach in certain contexts so  
long as the drafting respects the underlying principle that the pleading must disclose  
to each individual defendant the case being made against them: Jevco Insurance  
Co. v. Pacific Assessment Centre Inc., 2014 ONSC 2244 at para. 59, aff’d 2015  
ONSC 7751; Europro (Kitchener) Limited Partnership v. Dream Office Real Estate  
Investment Trust, 2018 ONSC 7040 at paras. 2937; Winnipeg (City) v. Caspian  
Projects Inc. et al., 2020 MBQB 129 at para. 36; Lysko v. Braley et al. (2006), 79  
O.R. (3d) 721 (C.A.) at paras. 32-35.  
[70] Tluchak Estate v. Bayer Inc., 2018 SKQB 311 involved a class action against  
Bayer for breaching its duty of care in its broad marketing of a blood-thinning  
medication and negligently failing to provide a clear warning. At paras. 93101, the  
Court found fault with an enterprise liability claim akin to Martin, but allowed the  
plaintiffs to amend their pleadings to cure the defect. On my reading, the pleadings  
in Tluchak Estate were less descriptive than the FANCC in issue here.  
[71] The plaintiff argues that it has sufficiently pleaded the material facts  
supporting every element of each of the causes of action against the defendants and  
that it is entitled to group similar defendants together in its pleadings. In this regard,  
the plaintiff relies on Watson v. Bank of America Corp., 2014 BCSC 532 [Watson  
BCSC], the appeal of which was allowed on the limited grounds of removing certain  
wording of the certification order and striking the certification order against one of the  
defendants: Watson v. Bank of America Corp., 2015 BCCA 362 [Watson BCCA].  
[72] The plaintiff says that it is not attempting to plead facts that would justify  
piercing the corporate veil. Instead, it pleads that each defendant is inextricably  
interwoven with, and an agent of, the others. With respect to all defendant groups, it  
British Columbia v. Apotex Inc.  
Page 27  
submits the agency pleading is supported by material facts and provides specific  
paragraph references in its proposed amendments in support.  
[73] Further, the plaintiff argues that, while the facts set out in those paragraphs  
relate to common design, they are also capable of supporting the agency pleading.  
Therefore, the plaintiff argues that, unlike Martin, its pleadings are not bald  
assertions unsupported by material facts. It submits that whether the facts pleaded  
are sufficient to establish an agency relationship is a matter for trial.  
[74] With respect to the allegedly impermissible grouping or lumping, I accept the  
plaintiff’s argument and reject the defendants’ submission. This is not a case where  
diverse groups of defendants are simply lumped together. While there are  
differences between the individual defendants, the groups of defendants include  
similar entities alleged to have done similar things.  
[75] I see no error in the plaintiff’s grouping of the defendants into classes such as  
manufacturer or distributor, and then indicating that these groups engaged in a  
certain activity that formed the basis of a cause of action. Groups of defendants are  
defined, and the actions of each group are set out in detail. The defendants can  
clearly discern which category they fall into.  
[76] The nature of the alleged wrongdoing here is broad in scope, covering the  
manufacture and distribution of opioid products over a lengthy period of time.  
Moreover, the plaintiff alleges the defendants acted pursuant to a common design  
and functioned as agents of each other. These features distinguish the present  
context.  
[77] While I acknowledge the need for a certain level of specificity, it seems to me  
that the plaintiff’s approach of grouping defendants is permissible in this particular  
context. From the plaintiff’s perspective, all of the Manufacturer Defendants  
manufactured and allegedly vigorously and falsely marketed opioid products, and all  
of the Distributor Defendants allegedly distributed opioid products in quantities that  
exceeded any legitimate market. As the plaintiff argues, little would be gained by  
British Columbia v. Apotex Inc.  
Page 28  
requiring the plaintiff to reiterate the same allegation against each defendant  
individually in its pleadings. Some level of categorization is permissible, and even  
desirable, in this particular context to make the plaintiff’s case coherent and to avoid  
overloading the pleadings with unnecessary content.  
[78] With respect to the so-called “enterprise approach” found objectionable in  
Martin, that case falls at the less forgiving end of the spectrum and, as noted above,  
must be understood on its particular facts. Here, the plaintiff’s FANCC generally  
includes a description of each corporate family, a description of interrelationships  
and hierarchies within each corporate family, and a description of which entity has  
responsibility for various aspects within the corporate family. The FANCC includes  
allegations of common design in that the plaintiff alleges that the defendants within  
each family were joint tortfeasors who engaged in concerted conduct toward a  
common end: Stanway v. Wyeth Canada Inc., 2009 BCCA 592 at paras. 51, 60, 66  
70 [Stanway BCCA], leave to appeal ref’d [2010] S.C.C.A. No. 33580 (S.C.C.).  
Further still, the pleading alleges that each defendant was involved extensively, over  
the long-term, and in concert with others, in the manufacture or distribution of  
opioids. Given the broad context, the parallels in the allegations, and the similarities  
in the defendants, the overall legal structure of the plaintiff’s pleading is not  
objectionable.  
[79] In Watson BCSC, Chief Justice Bauman (now C.J.B.C.) put the matter this  
way:  
[102] The defendants argue that the pleadings do not identify, when,  
where, or through whom any agreements, with the necessary criminal intent,  
were reached in relation to any or all of the defendants. First I doubt that the  
“where” is relevant at this stage. More substantially, and as before, assuming  
the facts setting out the alleged conspiracies are true, the failure to plead in  
the level of specificity desired by the defendants is not fatal. It is not plain and  
obvious that the claim will fail as a result.  
[. . .]  
[140] The defendants claim that the pleadings are insufficiently particularized  
and rely on the following paragraphs from Can-Dive (at paras. 8-9):  
Esson J. also cited Bullen, Leake & Jacob's Precedents of  
Pleadings, 12th ed. (1975), p. 341. The current edition of  
British Columbia v. Apotex Inc.  
Bullen, Leake & Jacob's Precedents of Pleadings, 13th ed.  
Page 29  
(1990), states at pp. 221-22:  
The statement of claim should describe who the several  
parties to the conspiracy are and their relationship with each  
other. It should allege the conspiracy between the defendants  
giving the best particulars it can of the dates when or dates  
between which the unlawful conspiracy was entered into or  
continued, and the intent to injure. It should state precisely the  
objects and means of the alleged conspiracy to injure and the  
overt acts which are alleged to have been done by each of the  
alleged conspirators in pursuance of the conspiracy, and  
lastly, the injury and damage occasioned to the plaintiff…  
In my judgment, pleadings alleging conspiracy must be as  
specific as possible.  
[141] As a result, the defendants claim that the pleadings are deficient for  
failing to disclose, among other particulars, the identity of every party to the  
conspiracy and their relationships, the date(s) of any alleged agreements,  
and the specific acts of each defendant.  
[142] I do not consider Can-Dive to impose those requirements so strictly.  
They represent an ideal. The Court’s conclusion in Can-Dive was that  
pleadings must be as specific as possible. The very nature of a claim in  
conspiracy resists particularization at the early stages (North York Branson  
Hospital v. Praxair Canada Inc., [1998] O.J. No. 5993, (Div. Ct.) at para. 22).  
It may often not be possible to provide particulars as specific as the date of  
an agreement in a conspiracy case. Given the nature of conspiracy claims, it  
would be perverse if the failure to plead a specific date was fatal to a claim  
that otherwise was not bound to fail.  
[. . .]  
[144] In this case, the plaintiff has carefully set out the structure of the credit  
card industry and the relationships between the various parties are clear. This  
is not a case where the pleadings merely lump a diverse group of defendants  
together and claim they conspired to achieve some end state. To the extent  
there is homogeneity in the pleadings, it is presumably because the  
defendants are all similar corporate entities that are alleged to have done the  
same thing: maintained supracompetitive Interchange Fees and the Network  
Rules. This is not a case like Research Capital Corp or J.G. Young & Son  
Ltd. where the defendants included both companies and individuals.  
[Emphasis added.]  
[80] On appeal, the Court of Appeal affirmed this reasoning: Watson BCCA at  
paras. 130135. The comments in Watson BCSC and Watson BCCA about the  
sufficiency of particularization were made in the context of an alleged civil  
conspiracy, where “t]he standard for pleading a conspiracy is well-recognized as  
British Columbia v. Apotex Inc.  
Page 30  
strict: Watson BCCA at para. 126. Despite this strict standard, the pleadings were  
held to be sufficient.  
[81] Similar conclusions have been reached in cases where the pleadings identify  
relationships between the defendants, the structure of the industry at issue, acts  
taken in furtherance of the conspiracy, the harm to the plaintiff and proposed class,  
and the start and end time in respect to which the claim is brought: Godfrey v. Sony  
Corporation, 2016 BCSC 844 at paras. 9394, aff’d 2017 BCCA 302, aff’d 2019  
SCC 42; Fairhurst v. Anglo American PLC, 2014 BCSC 2270 at paras. 1825  
[Fairhurst].  
[82] In Fairhurst at para. 20, the Court noted that our courts have not refused  
certification solely due to drafting inadequacies: citing Halvorson v. British Columbia  
(Medical Services Commission), 2010 BCCA 267, where the Court of Appeal  
stressed the need for procedural flexibility with respect to pleadings and arguments  
in certification proceedings.  
[83] In light of the above, it is not plain and obvious that the plaintiff’s pleadings  
are bound to fail because they group defendants together in the impugned manner. I  
therefore reject the defendants’ argument on this ground.  
b) Proper Characterization of the Plaintiff’s Claims  
[84] A theme throughout the defendants’ arguments regarding the insufficiency of  
the plaintiff’s many claims is that the plaintiff does not adequately set out the  
requirements of the common law or statutory causes of action in the FANCC. This  
argument misses the point that the plaintiff’s various negligence claims are rooted in  
an enabling statute, the ORA, which provides for a cause of action based on a  
breach of a duty owed at common law or imposed by statute. As such, the ORA-  
based causes of action based upon a breach of statutory or common law duty, are  
less onerous than a free-standing cause of action apart from the ORA.  
[85] As noted in Newfoundland and Labrador (A.G.) v. Rothmans Inc., 2015  
NLTD(G) 191 at para. 17, in a statutory claim, the material facts and elements that  
 
British Columbia v. Apotex Inc.  
Page 31  
must be pleaded by the plaintiff are generally determined by reference to the  
legislation creating the cause of action, and not by reference to the common law:  
see also Her Majesty the Queen in Right of Ontario v. Rothmans Inc. et al., 2016  
ONSC 59 at paras. 8997.  
[86] Legislation similar to the ORA was considered in the tobacco litigation, which  
involved direct and distinct statutory claims brought by various provincial  
governments for the recovery of health care costs attributable to tobacco use. In Her  
Majesty the Queen in Right of Manitoba v. Rothmans et al., 2014 MBQB 160, Chief  
Justice Joyal considered whether the plaintiff’s pleadings, which were based on  
provincial tobacco legislation similar to the ORA, sufficiently alleged joint liability as  
between the defendants, who argued that the “omnibus” pleadings against them  
were deficient and demanded particulars. The Court declined to order particulars,  
finding:  
[58] Having reviewed the previously cited paras. 7, 10, and 40 in the  
Supreme Court of Canada judgment of British Columbia v. Imperial Tobacco  
Canada Limited, supra, referred to in para. 54 above, after reviewing ss. 4(1)  
and 4(2) of the Recovery Act and having re-read the manner in which the  
amended statement of claim has been pled in the present case, I respectfully  
disagree with the proposition that in an action under the Recovery Act, the  
Province was required to mechanically and formally plead the elements of the  
identified common law causes of action.  
[59] To repeat what had earlier been noted, while the Province's claim  
includes wrongs involving conspiracy, concert of action, deceit and  
misrepresentation, the Province's action is not a cause of action in  
conspiracy, concert of action, deceit and misrepresentation. The action is  
statutory and is brought pursuant to s. 2(1) of the Recovery Act. Moreover,  
the facts which ground the identified acts or omissions in this case are  
potentially encompassed in the notion of "tobacco-related wrongs" as defined  
under the Recovery Act.  
[Emphasis added.]  
[87] I agree with these comments and would apply similar reasoning in this  
context. In the present context, the plaintiff is not required to mechanically plead the  
full elements of each common law cause of action taken up by the ORA.  
British Columbia v. Apotex Inc.  
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c) Failure to Adequately Particularize Claims  
[88] The defendants repeatedly submit that the pleadings are fatally flawed  
because the plaintiff does not plead the necessary material facts to permit the  
defendants to know the case they have to meetan objection primarily rooted in  
Rules 3-1(2) and 9-5(1)(a). They say the FANCC contains vague claims, bald  
allegations, and bare assertions. The defendants submit the FANCC fails to meet  
the requirements to plead material facts as set out in the Rules and the guiding  
cases such as Can-Dive Services Ltd. v. Pacific Coast Energy Corp. (1994), 96  
B.C.L.R. (2d) 156 (C.A.) [Can-Dive] and Stoneman.  
[89] I have already noted that many of the defendants’ submissions fail to  
adequately consider the unique situation here, where a statute provides for a “direct  
and distinct” cause of action against a manufacturer or wholesaler to recover the  
cost of health care benefits “caused or contributed to by an opioid-related wrong”: s.  
2(1) of the ORA.  
[90] Specificity is vital, but conciseness is important too. While the plaintiff’s claims  
are many, the defendants numerous, and the scope of the wrongful conduct  
substantial, the pleadings must maintain a balance between being sufficiently  
informative and not overly cumbersome. As noted in Sahyoun 2013 at para. 23,  
pleadings need to set out a concise summary of the legal basis for the relief  
sought.This represents a mandate for clarity and brevity. Moreover, I would not  
assess the FANCC to determine whether the correct balance between precision and  
brevity has been struck, but rather to determine whether the pleadings are so  
deficient that they must necessarily be struck.  
[91] It is telling that none of the defendants have made an application for further  
particulars to date in this proceeding. Yet, all submit that the various claims in the  
FANCC fail due to the lack of particularization of the claims. As noted, the case  
remains in its early stages, and many defendants have yet to file responses due to  
the filing of jurisdictional challenges which have not yet been heard.  
 
British Columbia v. Apotex Inc.  
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[92] Even if I were to decide that certain claims were insufficiently particularized  
here, I would be inclined to consider whether the pleading could be amended to  
comply with the Rules: James at para. 84, citing Kripps v. Touche Ross & Co.  
(1992), 69 B.C.L.R. (2d) 62 (C.A.) at paras. 910. Similarly, in Association of Drug  
War Survivors, the Court of Appeal stated the following:  
[15]  
It must be remembered in assessing pleadings under Rule 9-5(1)  
that the exercise involves assessing the claim as pleaded or as it may  
reasonably be amended and that the pleadings are to be read generously.  
This is the approach taken by the Chief Justice. In my opinion, R. v. Imperial  
Tobacco Canada Ltd., 2011 SCC 42, does not change that long standing  
principle. In Imperial Tobacco there was no issue about whether amendments  
could be made to remedy deficiencies in the pleadings in order to state a  
reasonable claim. The question was whether if the action were allowed to  
proceed additional facts would be unearthed that would make out a claim that  
was not sustained by the existing pleading. The issue was not whether the  
claim could be better particularized after discovery to permit more specific  
pleading. Here the Chief Justice accepted that there were deficiencies in the  
pleadings stemming from their generality but took the view that those  
deficiencies could be remedied or might be remedied after discovery. I see no  
reversible error in that determination.  
[93] I return to the fundamental task at hand; namely, to determine whether the  
pleadings are so deficient that the plaintiff’s claims are bound to fail. This analysis  
requires the court to adopt a generous approach to pleadings and err on the side of  
permitting an arguable claim to proceed to trial: Violette at para. 40.  
d) Lack of Proximity Between the Defendants and the Plaintiff  
[94] The defendants argue that the plaintiff’s negligence-based claims fail because  
they owed no duty of care directly to the plaintiff in relation to the various duties  
underlying its ORA-based claims. For example, the Janssen Inc. (“Janssen”)  
defendants submit that the plaintiff has failed to plead material facts giving rise to a  
duty of care owed by the so-called Manufacturer Defendants to the plaintiff in  
respect of the pure economic losses claimed in negligence and negligent  
misrepresentation in this case. They submit that there is no established or  
analogous duty of care that would apply to this claim. Further, the defendants submit  
that there are no material facts alleging a “close and direct” relationship with the  
 
British Columbia v. Apotex Inc.  
Page 34  
plaintiff that would ground a finding of proximitya precondition to the existence of a  
duty of care.  
[95] The defendants also characterize the plaintiff’s alleged loss as a “pure  
economic loss” that emanates from alleged harm done to third parties (e.g. end  
users in need of care) or from loss that is wholly unconnected to any physical or  
mental injury or property damage suffered by the plaintiff: see for example, 1688782  
Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35 at para. 17 [Maple Leaf]. The  
Court in Maple Leaf at para. 19 emphasized that, while pure economic loss may be  
recoverable in certain circumstances, there is no general right in tort protecting  
against the negligent or intentional infliction of pure economic loss. The starting point  
in a principled analysis is to identify what rights are at stake and whether a reciprocal  
duty of care exists, with proximity remaining the controlling conceptand a  
foundation of the modern law of negligence: Maple Leaf at paras. 19, 21. As such,  
the defendants argue that there is no sufficient proximity between the plaintiff and  
the defendants to give rise to a duty of care.  
[96] The plaintiff argues that it has appropriately set out a cause of action in  
negligence by pleading the following:  
(a)  
the Manufacturer Defendants owed a duty of care to the plaintiff,  
Class Members, and end users of Opioids to exercise to reasonable care in  
the development, testing, manufacturing, marketing and sale of Opioids:  
FANCC at para. 258;  
(b)  
the Distributor Defendants owed a duty of care to the plaintiff, the  
Class Members and end users of Opioids to safely distribute Opioids to  
pharmacies and hospitals: FANCC at para. 280;  
(c)  
the defendants breached the standard of care: FANCC at paras. 262,  
284285;  
(d)  
the plaintiff and Class Members suffered foreseeable damages and  
loss as manifested by the Opioid Epidemic: FANCC at paras. 263264, 287–  
288; and  
(e)  
the plaintiff’s and Class Members' damages were caused by the  
defendants’ negligence: FANCC at paras. 263264, 281.  
[97] The plaintiff alleges that the defendants have breached various duties owed  
to persons in British Columbia and Canada. I am told that the plaintiff is not pleading  
British Columbia v. Apotex Inc.  
Page 35  
a cause of action such as negligence based upon a duty owed directly by the  
defendants to the plaintiff.  
[98] The plaintiff also argues that the fact that a duty of care has not been  
recognized is not a sufficient ground to strike its negligence claim. The question to  
be asked is “not whether a duty of care will be recognized, but whether it is plain and  
obvious that no duty of care can be recognized”: Haskett v. Equifax Canada Inc.  
(2003), 63 O.R. (3d) 577 (C.A.) at para. 24, leave to appeal ref’d [2003] S.C.C.A. No.  
208 (S.C.C.). The plaintiff submits that the defendants do not meet this high  
threshold.  
[99] On the issue of proximity between the plaintiff and the defendants, the fact  
that many of the plaintiff’s claims are based on the ORA alters the analytical context.  
With the aid of the ORA and the definition of “opioid-related wrong” in s. 1, the  
plaintiff is able to argue that the defendants owed a duty at common law or pursuant  
to a statute to persons in B.C. who have used, been exposed to, or might use or be  
exposed to an opioid product.  
[100] The FANCC goes further. It identifies risks to the end user and knowledge of  
those risks by the categories and corporate families of defendants. The Distributor  
Defendants are alleged to be sophisticated, with knowledge equivalent to that of the  
Manufacturer Defendants.  
[101] In the result, I cannot find that the plaintiff’s claims in negligence are bound to  
fail because a relationship of proximity between the plaintiff and the defendants is  
insufficiently particularized.  
e) Alleged Flaws in the Common Design Allegations  
[102] The plaintiff advances allegations of common design in the FANCC with  
respect to certain defendant groups, namely, between parent and subsidiary  
defendants, between certain unaffiliated defendants, between all Manufacturer  
Defendants, and between the Manufacturer and Distributor Defendants. The plaintiff  
alleges that the business of each of the defendants is interwoven and that each is  
 
British Columbia v. Apotex Inc.  
Page 36  
the agent of the other for the purpose of the manufacture, marketing, and sale of  
opioids in Canada. It alleges that the various groups of defendants undertook  
concerted actions towards a common end, namely, the aggressive marketing of  
opioids in order to expand the opioid market in Canada and significantly increase  
their profits.  
[103] Allegations of common design are interspersed throughout the FANCC. The  
plaintiff’s common design pleadings in the FANCC can be summarized as follows:  
a) Related parent and subsidiary defendants acted pursuant to a common  
design;  
b) Certain unaffiliated defendants worked in concert to market, sell, and  
distribute opioids in Canada;  
c) A common design as between all Manufacturer Defendants; and  
d) A common design as between all Manufacturer Defendants, including  
Generic Manufacturer Defendants, and the Distributor Defendants.  
[104] By way of example, paras. 168 and 226231 of the FANCC state as follows:  
168. The Manufacturer Defendants engaged in a common design to  
overcome resistance in the medical community to the use of prescription  
Opioids for patients experiencing chronic non-cancer pain, in order to expand  
the market for Opioid Products and generate and encourage long-term  
patient consumption of Opioids.  
[. . .]  
226. The Distributor Defendants ignored the suspicious sales volumes and  
patterns. Instead, the Distributor Defendants purchased large volumes of  
Opioids from the Manufacturer and Generic Manufacturer Defendants and  
engaged in a common design with the Manufacturer and Generic  
Manufacturer Defendants to maximize the sale of Opioids in Canada.  
227. In furtherance of the common design, the Manufacturer Defendants and  
Distributor Defendants shared market data, sales data, sales forecasts,  
marketing plans and demand estimates.  
228. In furtherance of the common design, the Generic Manufacturer  
Defendants and Distributor Defendants shared market data, sales data, sales  
forecasts, marketing plans and demand estimates.  
British Columbia v. Apotex Inc.  
Page 37  
229. Further, the arrangements by which the Distributor Defendants  
purchased and took title to the Opioids from the Manufacturer and Generic  
Manufacturer Defendants provided those defendants with secure revenue  
streams with little or no credit risk while the Distributor Defendants assumed  
the risk of being unable to sell all Opioids in inventory. The arrangement  
ensured that all parties to the common design had an incentive to maximize  
Opioid sales.  
230. In furtherance of the common design, the Manufacturer Defendants  
engaged in the unlawful acts identified above. The plaintiff pleads and relies  
on paragraphs 158 175 as further particulars of acts in furtherance of the  
common design. The Manufacturer Defendants and Distributor Defendants  
are jointly liable for the acts.  
231. In furtherance of the common design, the Generic Manufacturer  
Defendants engaged in the unlawful acts identified above. The plaintiff pleads  
and relies on paragraphs 207 - 215 as further particulars of acts in  
furtherance of the common design. The Generic Manufacturer Defendants  
and Distributor Defendants are jointly liable for the acts.  
[105] The FANCC broadly identifies the roles of the defendants, their relationships  
with each other, their alleged underlying tortious conduct, and the specifics of their  
conduct that the plaintiff says amounts to a common design.  
[106] The plaintiff submits that it relies on the common design allegations as a form  
of concurrent or joint liability between the defendants rather than as a distinct cause  
of action.  
[107] The defendants submit that the plaintiff has failed to plead the necessary  
elements and material facts to advance claims based on common design, including  
that: (1) the defendant must have provided substantial assistance to the commission  
of an act by the primary tortfeasor; (2) the assistance must have been pursuant to a  
common design on the part of the defendants that the tort be committed; and (3) the  
act must constitute a tort as against the plaintiff: Waterway Houseboats Ltd. v.  
British Columbia, 2019 BCSC 581 at para. 351, rev’d in part on other grounds 2020  
BCCA 378; I.C.B.C. v. Stanley Cup Rioters, 2016 BCSC 1108 at para. 25 [Stanley  
Cup Rioters]. In addition, the defendants say the common design allegations do not  
support any cause of action pleaded by the plaintiff. Accordingly, they submit that  
these allegations are unnecessary and therefore vexatious.  
British Columbia v. Apotex Inc.  
Page 38  
[108] Some of the defendants also appear to allege that, despite using the term  
“common design,” the plaintiff is in substance alleging the tort of conspiracy. The  
defendants cite cases such as Hostmann-Steinberg v. 2049669 Ontario Inc., 2010  
ONSC 2441 at para. 20; Research Capital Corp. v. Skyservice Airlines Inc., 2008  
CanLII 30703 (O.N.S.C.) at para. 23, order varied in part 2009 ONCA 418; and  
Region Plaza Inc. v. Hamilton-Wentworth (Regional Municipality) (1993), 12 O.R.  
(3d) 750 (S.C.) at 756, 1990 CanLII 6761 (O.N.S.C.) in support of the proposition  
that the plaintiff must attribute specific acts to the defendants in its pleadings. By  
extension, if the plaintiff must plead the elements akin to the tort of conspiracy, its  
pleadings here must be struck for failure to plead sufficient particulars.  
[109] I cannot agree with the defendants’ submissions on these points. I reject the  
defendants’ claim that the plaintiff is effectively alleging the tort of conspiracy and  
accept that the plaintiff relies on common design as a form of concurrent or joint  
liability. To that end, common design is not a cause of action but rather a form of  
joint liability whereby multiple parties can be held liable for the same tort. Here,  
common design has not been pleaded as an independent cause of action: see for  
example Stanway BCCA at paras. 6670. Common design is simply a form of  
concerted action liability that may be pleaded without reference to the tort of  
conspiracy: see for example Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5 at  
para. 154 [Fullowka]. The defendants’ argument on this point relies on an inflation of  
the claims of joint liability in the FANCC. It then attacks the distorted characterization  
of the claim (as a conspiracy) to refute the adequacy of the pleadings.  
[110] With respect to the sufficiency of the plaintiff’s pleadings on common design,  
the critical element of common design is that those participating in the commission  
of the tort must have acted in furtherance of a common design, which means that all  
participants acted in furtherance of the wrong: Botiuk v. Toronto Free Press  
Publications Ltd., [1995] 3 SCR 3 at paras. 7374 [Botiuk]; Stanley Cup Rioters at  
paras. 2227; Cook v. Lewis, [1951] S.C.R. 830. In Botiuk, the Court stated as  
follows:  
British Columbia v. Apotex Inc.  
Page 39  
[74] In The Law of Torts (8th ed. 1992), Fleming discusses the concept of  
joint concurrent tortfeasors. He states this at p. 255:  
A tort is imputed to several persons as joint tortfeasors in three  
instances: agency, vicarious liability, and concerted action.  
The first two will be considered later. The critical element of  
the third is that those participating in the commission of the tort  
must have acted in furtherance of a common design. . . .  
Broadly speaking, this means a conspiracy with all participants  
acting in furtherance of the wrong, though it is probably not  
necessary that they should realise they are committing a tort.  
[Emphasis in original.]  
[75] The appellants' actions bring them within the third category of joint  
tortfeasors so well described by Fleming. In the context in which the text  
writer has utilized the word conspiracy, it refers to the design or agreement of  
persons to participate in acts which are tortious, even though they did not  
realize they were committing a tort.  
[111] Concerted action liability may thus be imposed where the alleged wrongdoers  
acted in furtherance of a common design: Fullowka at para. 154. As noted by Justice  
Burnyeat in Liu v. Huang, 2018 BCSC 227 at para. 4, where two or more parties  
agree on a common course of action, Canadian decisions have restricted this  
category of potential liability to situations where the common object was wrongful or  
unlawful: see also I.C.B.C. v. The Corporation of the City of Vancouver, 2000 BCCA  
12 at paras. 15-16.  
[112] Additionally, the plaintiff is entitled to the benefit of s. 4 of the ORA which  
provides for principles of joint and several liability:  
Joint and several liability in an action under section 2 (1)  
4 (1) Two or more defendants in an action under section 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 section  
1 (1), and  
(b) as a consequence of the breach described in paragraph (a)  
of this subsection, at least one of those defendants is held  
liable in the action under section 2 (1) for the cost of those  
health care benefits.  
(2) For purposes of an action under section 2 (1), 2 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 section 1 (1) if  
British Columbia v. Apotex Inc.  
(a) one or more of those manufacturers or wholesalers are  
Page 40  
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.  
[Emphasis added.]  
[113] Hence, s. 4 of the ORA provides for joint and several liability where  
tortfeasors act in concert with respect to a breach of an underlying duty.  
[114] Had the plaintiff alleged a civil conspiracy as a cause of action, more might be  
required, and I might be inclined to consider requiring the plaintiff to amend its claim  
to provide further particulars. But R. 3-1 requires only that the material facts of the  
cause of action be disclosed in the form of the plaintiff's right or title, the defendant's  
wrongful act, and the consequent damage. Here, common design or concerted  
action liability is relied upon as a bridge on the pathway to liability rather than a  
cause of action in and of itself, and the pleadings here meet the necessary legal  
requirements: see also Genentech, Inc. v. Celltrion Healthcare Co., 2019 FC 293 at  
paras. 4243. It is not plain and obvious that the proposed amendments in the  
FANCC based upon common design are bound to fail, and I would not give effect to  
this argument.  
f) Proceeding in the Absence of the Purdue Defendants is Unworkable  
[115] The defendants further point out that, while the plaintiff does not identify a  
primary tortfeasor, the FANCC makes repeated allegations against the Purdue  
Defendants, referencing Purdue’s introduction of OxyContin in Canada and  
subsequent conduct regarding the marketing of its opioid products. The defendants  
 
British Columbia v. Apotex Inc.  
Page 41  
submit that this is suggestive of Purdue’s role as a primary tortfeasor. For instance,  
paras. 138139 of the FANCC read as follows:  
138. As described in greater detail below, Purdue and the other Manufacturer  
Defendants subsequently developed and promoted a narrative that pain was  
undertreated and should be made a higher priority by healthcare  
practitioners. At the same time, the Manufacturer Defendants began  
vigorously marketing long-acting Opioids as less addictive, less subject to  
abuse and diversion and less likely to cause tolerance and withdrawal than  
other pain medications despite a lack of scientific evidence to support these  
claims. Individually, and in concert. The Manufacturer Defendants promoted  
these Opioids as safe, effective and appropriate for long-term use for routine  
pain conditions.  
139. For example, a 1996 Purdue press release on OxyContin stated that the  
“fear of addiction is greatly exaggerated” and “largely unfounded” and “there  
is very little risk of addiction.”  
[Citations omitted.]  
[116] As noted above, proceedings against the Purdue Defendants have been put  
on hold: British Columbia v. Apotex, 2021 BCSC 346 at para. 3, citing Purdue  
Pharma L.P., Re., 2019 ONSC 7042. The FANCC contains the following proviso  
explaining that the FANCC does not presently seek to make allegations against the  
Purdue Defendants:  
65. As of the date of preparation of this Third Amended Notice of Civil Claim,  
the proceedings as against the Purdue defendants are stayed as a result of  
orders made in Chapter 11 proceedings in the United States and recognized  
by the Ontario Superior Court of Justice (the “CCAA Court”) in CCAA  
proceedings, Court File No. CV-19- 627656-00CL and separate orders issued  
by the CCAA Court. To the extent the Second Amended Notice of Civil Claim  
makes, amends or adds allegations against the Defendants or Manufacturer  
Defendants generally, the Plaintiff does not presently seek to make those  
allegations or amendments in respect of the any of the Purdue entities or  
otherwise continue the proceedings or seek any order or relief in respect of  
any of the Purdue entities. Similarly, to the extent that the Second Amended  
Notice of Civil Claim makes, amends or adds allegations in respect of the  
Purdue defendants specifically, the Plaintiff does not presently seek to make  
those allegations or amendments in respect of the any of the Purdue entities  
or otherwise continue the proceedings or seek any order or relief in respect of  
any of the Purdue entities. The Plaintiff reserves the right to continue the  
proceedings or seek relief against the Purdue entities, if permitted in the  
future by a modification or revocation of the applicable stay orders.  
[Emphasis added.]  
British Columbia v. Apotex Inc.  
Page 42  
[117] The defendants submit that, in light of this statement, they cannot be alleged  
to be in a common design with the Purdue Defendants and that any common design  
allegations ought to be struck. The defendants further submit that the plaintiff cannot  
have it both ways: the plaintiff cannot make allegations in the FANCC that Purdue is,  
in essence, a primary tortfeasor, yet fail to proceed against the Purdue Defendants.  
The essence of the defendants’ argument is that the Ontario stay of proceedings  
invokes one of two branches of res judicata, cause of action estoppel or issue  
estoppel: see for example Fontaine v. Canada (Attorney General), 2019 BCCA 178  
at paras. 4042.  
[118] I cannot accept the defendants’ submission on this point. The defendants’  
argument overstates the effect of the stay. I agree with the plaintiff that the stay has  
no impact upon the factual matrix of this case. The stay merely operates as a  
suspension of proceedings and allegations against the Purdue Defendants, not  
against the other defendants. The stay has not decided any issue between the  
parties. Accordingly, I cannot find a basis for finding that the plaintiff is not entitled to  
move forward with its class proceedings with attendant findings of fact in this  
jurisdiction against the remaining live defendants.  
[119] The effect of the stay is somewhat analogous to that of a partial settlement of  
a multi-defendant proceeding. In such cases, the court has the power to consider  
certification against some defendants without prejudice to the right of other non-  
settling defendants to challenge the existence or the elements of the causes of  
action asserted: Tietz v. BridgeMark Financial Corp., 2021 BCSC 25 at para. 24;  
Green v. Tecumseh Products of Canada Limited, 2016 BCSC 217 at para. 11.  
[120] The plaintiff has not alleged the Purdue Defendants to be the primary  
tortfeasor, nor is it required to. For common design or concerted action liability, the  
plaintiff may allege that all defendants (excepting the Purdue Defendants) of a  
certain class were wrongdoers who acted in furtherance of a common design, with  
all participants acting in furtherance of the wrong: s. 4 of the ORA; Fullowka at para.  
154; Botiuk at paras. 7376.  
British Columbia v. Apotex Inc.  
Page 43  
[121] The defendants have other arguments as to the insufficiency of the common  
design pleading, such as the lack of specificity of the alleged unlawful or wrongful  
conduct. Clearly, the FANCC sets out the alleged tortious and wrongful conduct in  
great detail. In my view, the pleadings are sufficient to allow the defendants to know  
the case they have to meet. It cannot be said that the common design allegations  
are so deficient that the plaintiff’s case based upon joint liability is bound to fail.  
[122] Based on the foregoing, I cannot accede to the defendantsposition on this  
point.  
STATUTORY CAUSES OF ACTION  
a) Breach of s. 52 of the Competition Act  
[123] The plaintiff relies on ss. 36 and 52 of the Competition Act, R.S.C. 1985, c. C-  
34 [Competition Act] to support a statutory claim for misleading advertising. The  
plaintiff says the breach of s. 52 by the Manufacturer Defendants gives rise to a  
cause of action under s. 36 of the Competition Act and a cause of action for an  
opioid-related wrong under the ORA (or, in the alternative, under the HCCRA).  
[124] The issues here are (a) whether the plaintiff is a person for the purposes of  
the Competition Act; and (b) whether detrimental reliance is necessary for the  
alleged breach.  
i) Whether the Province can Claim under the Competition Act  
[125] The defendants make two main arguments in support of the defendants’  
position that the plaintiff is not a person for the purpose of s. 36 of the Competition  
Act:  
1. the definition of “person” in s. 35 of the federal Interpretation Act, R.S.C.,  
1985, c. I-21 [Interpretation Act] does not include “province”; and  
2. including “province” in the definition of “person” would give “person” two  
different meanings within the Competition Act.  
     
British Columbia v. Apotex Inc.  
Page 44  
[126] I am reminded that a complex question of statutory interpretation is not  
appropriate for disposition on a motion to strike pleadings: British Columbia (Director  
of Civil Forfeiture) v. Flynn, 2013 BCCA 91 at paras. 1315. However, in my view,  
the statutory interpretation issue here is not a complex one.  
[127] The starting point for consideration of these arguments is the statutory  
provisions themselves. Section 52 of the Competition Act states the following:  
False or misleading representations  
52 (1) No person shall, for the purpose of promoting, directly or indirectly, the  
supply or use of a product or for the purpose of promoting, directly or  
indirectly, any business interest, by any means whatever, knowingly or  
recklessly make a representation to the public that is false or misleading in a  
material respect.  
[Emphasis added.]  
[128] Section 36 of the Competition Act provides as follows:  
Recovery of damages  
36 (1) Any person who has suffered loss or damage as a result of  
(a) conduct that is contrary to any provision of Part VI, or  
(b) the failure of any person to comply with an order of the  
Tribunal or another court under this Act,  
may, in any court of competent jurisdiction, sue for and recover from the  
person who engaged in the conduct or failed to comply with the order an  
amount equal to the loss or damage proved to have been suffered by him,  
together with any additional amount that the court may allow not exceeding  
the full cost to him of any investigation in connection with the matter and of  
proceedings under this section.  
[Emphasis added.]  
[129] In Wakelam v. Wyeth Consumer Healthcare/Wyeth Soins de Sante Inc., 2014  
BCCA 36 at para. 91 [Wakelam], leave to appeal ref’d [2014] S.C.C.A. No. 125  
(S.C.C.), the Court of Appeal approved of the following statement in Singer v.  
Schering-Plough Canada Inc., 2010 ONSC 42 at paras. 107108 [Singer],  
explaining the nature and interplay of the two provisions:  
[107] [Section] 52(1) does not create a cause of action. The cause of  
action, or right of action, is created by s. 36. The plain language of that  
section makes it clear, as the defendants assert, that the plaintiff must  
show both a breach of s. 52 and loss or damage suffered by him or her as a  
British Columbia v. Apotex Inc.  
Page 45  
result of that breach. That can only be done if there is a causal connection  
between the breach (the materially false or misleading representation to the  
public) and the damages suffered by the plaintiff. A consumer of sunscreen  
products cannot recover damages, in the abstract, simply by proving that the  
manufacturer made a false and misleading representation to the public.  
The failure of the plaintiff to plead a causal link is fatal to this claim.  
[108] Section 52(1.1) only removes the requirement of proving reliance for the  
purpose of establishing the contravention of s. 52(1). The separate cause of  
action, created by s. 36 in Part IV of the Competition Act, contains its own  
requirement that the plaintiff must have suffered loss or damage "as a result"  
of the defendant's conduct contrary to Part VI. It is not enough to plead the  
conclusory statement that the plaintiff suffered damages as a result of the  
defendant's conduct. The plaintiff must plead a causal connection between  
the breach of the statute and his damages. In my view, this can only be done  
by pleading that the misrepresentation caused him to do something - i.e., that  
he relied on it to his detriment.  
[Emphasis added.]  
[130] In support of their position that the plaintiff is not a “person,” the defendants  
rely on the definitions of “person,” “corporation,” and “province” in s. 35 of the  
Interpretation Act:  
corporation does not include a partnership that is considered to be a  
separate legal entity under provincial law  
person, or any word or expression descriptive of a person, includes a  
corporation  
province means a province of Canada, and includes Yukon, the Northwest  
Territories and Nunavut  
[131] The defendants suggest that the definitions provide that “person” includes a  
“corporation,thereby indicating that “person” cannot also include a “province.”  
[132] In my view, the inclusion of “corporation” in the partial definition of “person” in  
the Competition Act does not exclude the “province” from the definition of “person.”  
When the word “includes” is used, it indicates a non-exhaustive list that requires the  
interpreter to consider whether subject matter not specifically included in the list still  
fits within the term: Cameron Hutchison, The Fundamentals of Statutory  
Interpretation, (Toronto: LexisNexis Canada, 2018) at 44; Ruth Sullivan, Statutory  
Interpretation, 2nd ed (Toronto: Irwin Law Inc., 2007) at 69.  
British Columbia v. Apotex Inc.  
Page 46  
[133] Furthermore, it is well established that the Crown has legal personhood at  
common law. This principle is succinctly summarized by Justice Horsman & Gareth  
Morley in Government Liability: Law and Practice, (looseleaf), (Toronto: Thomson  
Reuters, 2021) at § 1:101:11:  
The Crown has two kinds of common law rights. First, as a legal person, it  
has the same rights as those inhering in the subject as a result of the general  
common law (the “general capacity of the Crown”). Second, it has special  
rights, which differentiate it at common law from the subject.  
[. . .]  
The Crown, as a legal person, has all the common law rights of an individual  
of full age and capacity the right to own property and the rights incident to  
the ownership of property, the right to enter into contracts, and the right to  
sue in the civil courts.  
[. . .]  
The Crown may sue for damage to its property rights or for breach of its  
contracts without any need for statutory authority. When the Crown sues as  
plaintiff, its substantive rights are no different from those of the subject, and  
never were. Absent legislation to the contrary, the Crown is entitled to  
exercise these civil rights with the same freedom from court interference as  
any other person.  
[Citations omitted.]  
[134] To a similar effect are Attorney General of Quebec v. Labrecque, [1980] 2  
S.C.R. 1057 at 1082 and Verrault (J.E.) & Fils Ltée v. Attorney General (Quebec),  
[1977] 1 S.C.R. 41 at 47.  
[135] By way of illustration, in R. v. British Columbia (1992), 66 B.C.L.R. (2d) 84, 4  
W.W.R. 490 (S.C.), the Court found that the “Her Majesty The Queen in right of the  
province of British Columbia” fell within the meaning of “person” for the purposes of  
the Fisheries Act, R.S.C. 1985, c. F-14. As such, the provincial Crown could be  
charged under that statute.  
[136] The defendants also argue that ss. 33 and 34 of the Competition Act grant  
special remedies to the Attorney General of a province, while s. 36 grants a civil  
cause of action to a “person,” further indicating that “person” and “province” have  
different meanings. I do not agree with this argument. While I accept the provisions  
the defendants point to, in my view, the special statutory rights of the Crown can  
British Columbia v. Apotex Inc.  
Page 47  
comfortably co-exist with its general rights as a person without rendering these  
provisions inconsistent.  
[137] The defendants further submit that including “province” in the definition of  
“person” would give “person” two different meanings in the same statute. As a  
starting point of this argument, the defendants refer to the common law doctrine of  
Crown immunity, codified in s. 17 of the Interpretation Act:  
Her Majesty not bound or affected unless stated  
17 No enactment is binding on Her Majesty or affects Her Majesty or Her  
Majesty’s rights or prerogatives in any manner, except as mentioned or  
referred to in the enactment.  
[138] They then refer to s. 2.1 of the Competition Act, which provides that the  
Competition Act is binding on Crown corporations:  
Binding on agents of Her Majesty in certain cases  
2.1 This Act is binding on and applies to an agent of Her Majesty in right of  
Canada or a province that is a corporation, in respect of commercial activities  
engaged in by the corporation in competition, whether actual or potential, with  
other persons to the extent that it would apply if the agent were not an agent  
of Her Majesty.  
[139] The defendants submit that because the Competition Act is only binding on  
Crown corporations, but not Her Majesty, the effect of including Her Majesty within  
the meaning of “person” would mean the Crown is captured by all provisions of the  
Competition Act that use the word “person.” They submit that this would be contrary  
to the principle of Crown immunity codified in s. 17 of the Interpretation Act and  
would give the word “person” two different meanings within the same statute.  
[140] I do not agree with the defendants’ submissions on this point. The principle of  
Crown immunity is not absolute. There are several exceptions to this principle, one  
of which is the benefit/burden exception described below. I agree with the plaintiff  
that the principle of Crown immunity does not prevent the Crown from taking the  
benefit of a statute.  
British Columbia v. Apotex Inc.  
Page 48  
[141] In Sparling v. Quebec (Caisse de Depot et Placement du Quebec), [1988] 2  
S.C.R. 1015, the Court endorsed the following summary of the benefit/burden  
exception at para. 19:  
[19]  
C.H.H. McNairn in Governmental and Intergovernmental Immunity in  
Australia and Canada (Toronto: University of Toronto Press, 1977), at p. 10  
states:  
By taking advantage of legislation the crown will be treated as  
having assumed the attendant burdens, though the legislation  
has not been made to bind the crown expressly or by  
necessary implication. The force of the rule of immunity is  
avoided by the particular conduct of the crown and the integrity  
of the relevant statutory provisions, beneficial and prejudicial.  
[142] The Court then explained the application of the benefit/burden exception as  
follows at para. 29:  
[29]  
Application of the benefit/burden exception does not result in  
subsuming the Crown under any and every regulatory scheme that happens  
to govern a particular state of affairs. Although some earlier authorities (see  
e.g., Bank of Montreal v. Bay Bus Terminal (North Bay) Ltd. (1971), [1972] 1  
O.R. 657, 24 D.L.R. (3d) 13 at 20 (H.C.), aff'd [1972] 3 O.R. 881, 30 D.L.R.  
(3d) 24 (C.A.)) had been thought by some to support the view that the Crown  
was bound by any regulatory scheme of sufficient scope, this approach was  
rejected by Laskin C.J. in the P.W.A. case (p. 69). The exception is not of  
such broad reach. Its application depends not upon the existence or breadth  
of a statutory scheme regulating an area of commerce or other activity, but,  
as noted earlier, upon the relationship or nexus between the benefit sought to  
be taken from a statutory or regulatory provision and the burdens attendant  
upon that benefit. The focus is not on the source of the rights and obligations  
but on their content, their inter-relationship. As McNairn, op. cit., puts it at pp.  
11-12:  
Reliance upon a statute may ... be for such a limited purpose  
that the crown ought not, as a result, to be taken to have  
assumed the attendant burdens. Such is the case when a  
statute is resorted to for a purely defensive reason, for  
example to give notice under a registration scheme of the  
existence of a crown claim. The use of a statute in this way  
may be distinguished from active reliance to secure positive  
rights, the assumption of the burdens of a statute being a  
possible consequence only of the latter circumstance.  
[Emphasis added.]  
[143] Therefore, contrary to the defendants’ submission, including the Crown within  
the meaning of “person” in s. 36 of the Competition Act does not necessarily result in  
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Page 49  
the Crown being captured by all provisions of the Competition Act. The Crown would  
only be captured where there is a sufficient nexus between the benefit it is seeking  
and the burdens attendant upon that benefit. At this point of the proceeding, it is not  
clear whether a sufficient nexus exists to invoke the benefit/burden exception. This is  
a matter for trial. Either way, including the Crown within the meaning of “person”  
would not be inconsistent with the principle of Crown immunity codified in s. 17 of  
the Interpretation Act. That is, if there is a sufficient nexus, it would be an exception  
to Crown immunity; if not, Crown immunity continues to apply.  
[144] Based on the above, I assess that it is not plain and obvious that the plaintiff’s  
claim based upon a breach of the Competition Act cannot succeed because the  
plaintiff is not a “person” for the purpose of s. 36 of the Competition Act. I cannot find  
that the plaintiff’s claim for a breach of the Competition Act will fail, and I would  
dismiss the defendants’ argument on this point.  
ii) Whether Detrimental Reliance is Required for the Competition Act  
Claim  
[145] As noted above, s. 52 of the Competition Act prohibits false or misleading  
representations being made to the public to promote the supply or use of a product.  
Section 36 of the Competition Act provides for a right of recovery of damages by any  
person who has suffered a loss as a result of a breach of s. 52. This alleged breach  
is also said to constitute an opioid-related wrong, providing a possible right of  
recovery under the ORA.  
[146] The defendants submit that a plaintiff who relies on a breach of s. 52 of the  
Competition Act must plead that it relied on the alleged misrepresentation and  
consequently suffered damages: Sandhu at paras. 59, 7681; Singer at para. 108.  
The plaintiff here does not explicitly plead that it relied on the alleged  
misrepresentations. On the contrary, the plaintiff pleads that the alleged  
misrepresentations were made to health care professionals and their patients, not to  
the plaintiff. The defendants therefore submit that the plaintiff’s Competition Act-  
based claims fail.  
 
British Columbia v. Apotex Inc.  
Page 50  
[147] The plaintiff responds that claims brought under the Competition Act are  
statutory in nature, and do not require proof of individual reliance as might be the  
case as a stand-alone claim pursuant to the common law. It argues that for claims  
brought under s. 36, it is sufficient to plead that a misrepresentation was made to the  
public and that the misrepresentation caused harm: Rebuck v. Ford Motor Company  
et al., 2018 ONSC 7405 at paras. 3335, 45, and 51 [Rebuck]. The plaintiff also  
points to Pro-Sys at paras. 6571, and notes that there is no mention of a  
requirement for reliance in the Court’s analysis of Competition Act claims.  
[148] Subsection 52(1.1)(a) of the Competition Act provides that “in establishing  
subsection (1) was contravened, it is not necessary to prove that any person was  
deceived or misled.” Hence, detrimental reliance cannot be a requirement for an  
ORA-based cause of action based solely on a breach of s. 52(1) of the Competition  
Act.  
[149] On this issue, the defendants’ main complaint seems to be with the plaintiff’s  
independent claim based on the combined effect of ss. 36 and 52 of the Competition  
Act and the dicta in the jurisprudence that detrimental reliance is required: see for  
example Wakelam at paras. 9092, Finkel v. Coast Capital Savings Credit Union,  
2017 BCCA 361 at paras. 8283; Gomel v. Live Nation Entertainment, Inc., 2021  
BCSC 699 at para. 96, and Sandhu at paras. 7678.  
[150] Justice Branch recently dealt with this point in Krishnan v. Jamieson  
Laboratories Inc., 2021 BCSC 1396 at paras. 6273, 181189 [Krishnan]. He noted  
the debate as to whether reliance is necessary under s. 36 to fulfill the requirement  
that the “loss or damage” is suffered “as a result” of a contravention of Part VI of the  
Competition Act. After examining Wakelam and Finkel, Branch J. found that the  
statements therein should not be read as having finally determined that reliance is  
required for every case brought under s. 36. With reference to Rebuck and Pro-Sys,  
and on the facts of Krishnan, Branch J. concluded that it was open for the Court to  
find that there was a sufficient factual and legal basis to argue that reliance may not  
be necessary to support the s. 36 claim in that case. Similarly, here I cannot discern  
British Columbia v. Apotex Inc.  
Page 51  
clear authority absolutely requiring detrimental reliance in the form suggested by the  
defendants in the present context in order to bar the plaintiff’s Competition Act  
claims from advancing to certification and trial.  
[151] Moreover, the situation may differ in the context of one party suing another  
under ss. 36 and 52 of the Competition Act over misrepresentations made to the  
public: Go Travel Direct.Com Inc. v. Maritime Travel Inc., 2009 NSCA 42 at paras.  
6264 [Go Travel]. In Go Travel, one travel business sued another for knowingly  
mispresenting to the public, thereby giving rise to a claim under ss. 36 and 52 of the  
Competition Act. The Court concluded that this was sufficient to satisfy the  
requirement of loss in s. 36 of the Competition Act, stating that [p]rovided Maritime  
can prove it suffered a loss caused by the misrepresentation, it is not additionally  
required to prove a consumer relied on and was misled by the 2004 ad”: Go Travel  
at para. 64; similarly, see Telus Communications Inc. v. Shaw Communications Inc.,  
2020 BCSC 1354 at paras. 66, 75.  
[152] If detrimental reliance is required, the plaintiff concedes that it has not  
pleaded detrimental reliance by the plaintiff. However, if required, it argues that it  
can establish the claim based on the detrimental reliance by others, such as  
physicians, or by proving causation in some other way without reliance: see for  
example Rebuck at paras. 1417, 2837; Pioneer Corp. v. Godfrey, 2019 SCC 42 at  
paras. 5674 [Pioneer Corp SCC]; Collette v. Great Pacific Management Co. Ltd.,  
2004 BCCA 110 at para. 34 [Collette].  
[153] In light of the above authorities, and with the aid of Branch J.’s reasoning in  
Krishnan that detrimental reliance is not necessarily required for every case brought  
under s. 36, it is not plain and obvious that the plaintiff’s Competition Act claims are  
bound to fail. Even if such claims required reliance, there is an arguable case that  
causation can be otherwise established in this contextfor instance, by the  
consumer relying upon representations of their physicians: Collette at para. 34.  
Accordingly, I cannot accede to the defendants’ submissions on this point.  
British Columbia v. Apotex Inc.  
Page 52  
b) Breach of s. 9 of the FDA  
[154] The plaintiff alleges that by making representations in respect of opioids in the  
course of labelling, packaging, selling, or advertising in Canada, the Manufacturer  
Defendants breached s. 9(1) of the Food and Drugs Act, R.S.C. 1985, c. F-27 [FDA].  
The plaintiff devotes twenty-eight paragraphs in the FANCC to defining “Opioid  
Misrepresentations" allegedly made by the Manufacturer Defendants, including  
misrepresentations of improved function, risk of addiction, simple management of  
withdrawal, benefits of long-term use, adverse effects, duration of pain relief, risks of  
increased doses, and efficacy of abuse-deterrent formulations. This breach, the  
plaintiff alleges, constitutes an opioid-related wrong under the ORA.  
[155] The labelling, packaging, sale, and advertisement of opioids in Canada is  
subject to the FDA. Section 9(1) of the FDA provides as follows:  
9 (1) No person shall label, package, treat, process, sell or advertise any drug  
in a manner that is false, misleading or deceptive or is likely to create an  
erroneous impression regarding its character, value, quantity, composition,  
merit or safety.  
[156] For the purpose of the application of s. 9(1) of the FDA, s. 2 of the FDA  
defines “advertisement” as including “any representation by any means whatever for  
the purpose of promoting directly or indirectly the sale or disposal of any food, drug,  
cosmetic or device.”  
[157] The defendants say the plaintiff’s claim under the FDA must be struck  
because the statutory regime within the FDA does not give rise to a civil cause of  
action. Instead, they submit that it is merely one component of a comprehensive  
regulatory scheme administered by the “inspector” as established under the FDA.  
Section 9(1) impacts the powers of the inspector, but it does not create any specific  
rights for consumers or, more aptly in this context, the plaintiff.  
[158] Further, they argue that the plaintiff has not pleaded any material facts  
relating to any representations made by the defendants in a label, package,  
advertisement, or warning, which is the subject matter of s. 9(1) of the FDA.  
 
British Columbia v. Apotex Inc.  
Page 53  
[159] The plaintiff responds by stating that the FDA-based pleadings are not meant  
to form a stand-alone civil claim. Rather, the alleged breach of the FDA is meant to  
ground the claim under the ORA as a breach of a statutory duty owed to end users  
of opioids. The breach of the FDA thus merely grounds the statutory claim under the  
ORA.  
[160] Having regard to the Opioid Misrepresentations as defined and detailed in the  
FANCC, I also assess that the plaintiff has pleaded sufficient material facts to  
support the ORA-based claim for a breach of the FDA. On this ground, I agree with  
the plaintiff. I cannot find that it is plain and obvious that the plaintiff’s ORA-based  
claim for breach of the FDA is bound to fail.  
BREACHES OF THE COMMON LAW GROUNDING ORA-BASED CAUSES OF  
ACTION  
a) Negligent Misrepresentation, Fraudulent Misrepresentation, and  
Deceit  
[161] As with its other negligence-based claims, the plaintiff submits that the  
pleadings related to negligent misrepresentation, fraudulent misrepresentation, and  
deceit are intended to ground its claims under the ORA as an opioid-related wrong  
against the Manufacturer Defendants.  
[162] The FANCC states as follows with respect to fraudulent misrepresentation  
and deceit:  
Fraudulent Misrepresentation and Deceit  
250. Each of the Manufacturer Defendants made the Opioids  
Misrepresentations despite knowing that the Opioids Misrepresentations were  
false. Alternatively, the Manufacturer Defendants were reckless as to whether  
the Opioids Misrepresentations were true or false.  
251. The Opioids Misrepresentations constitute fraudulent misrepresentation  
and deceit.  
252. The Manufacturer Defendants made the Opioids Misrepresentations to  
the public at large as the core of a uniform and consistent sales, promotional,  
advertising and marketing campaign.  
253. The Opioids Misrepresentations caused the plaintiff and the Class  
Members to suffer a loss, including the total amount paid for Opioids  
   
British Columbia v. Apotex Inc.  
Page 54  
prescriptions and healthcare costs related to the use of Opioids as a result of  
the Opioid Epidemic.  
[163] The FANCC states as follows with respect to negligent misrepresentation:  
Negligent Misrepresentations  
266. The Manufacturer Defendants owed a duty of care to the end users of  
Opioid Products.  
267. The Manufacturer Defendants made the Opioid Misrepresentations to  
the plaintiff, Class Members, prescribing physicians, and the end users of  
Opioid Products.  
268. The Opioid Misrepresentations were untrue, inaccurate and/or  
misleading.  
269. The Manufacturer Defendants acted negligently in making the Opioid  
Misrepresentations.  
270. The Manufacturer Defendants breached the duty of care owed to the  
end users of Opioid Products by making the Opioid Misrepresentations.  
271. The Manufacturer Defendants’ breach of the duty of care owed to end  
users of Opioid Products by making the Opioid Misrepresentations  
constitutes a breach of a common law duty owed to insured persons who  
have used or been exposed to or might use or be exposed to the type of  
opioid product, as set out in section 3(1)(a) of the ORA.  
[164] The defendants submit that in order to adequately plead a claim based on  
misrepresentation, the plaintiff must plead and ultimately prove: (a) when, where,  
and who made the alleged false representation and to whom; (b) how the  
representation was made; (c) how was it untrue, inaccurate, or misleading; (d)  
inducement or reliance on the part of the plaintiff; (e) damage resulting from the  
foregoing; and (f) if deceit is alleged, that the defendant knew of the falsity of his or  
her statement: Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8 at para.  
21; and Bilfinger Berger (Canada) Inc. v. Greater Vancouver Water District, 2013  
BCSC 2324 at paras. 25, 29, and 31; R. 3-7(18). The defendants submit that the  
plaintiff’s bald accusations in its claim for misrepresentation are insufficient and that  
full particulars, with dates and items, if applicable, must be included in the plaintiff’s  
pleading.  
[165] Still, I cannot agree with the defendants’ argument as to insufficient  
particularization on this point. As noted above, the plaintiff devotes twenty-eight  
British Columbia v. Apotex Inc.  
Page 55  
paragraphs in the FANCC to defining the Opioid Misrepresentations allegedly made  
by the Manufacturer Defendants, including misrepresentations of improved function,  
risk of addiction, management of withdrawal, the benefits of long-term use, adverse  
effects, the duration of pain relief, risks of increased doses, and efficacy of abuse-  
deterrent formulations.  
[166] The plaintiff explains the nature of the Opioid Misrepresentations in detail.  
The plaintiff indicates the recipients of the Opioid Misrepresentations included the  
public at large, along with family physicians and other doctors, other prescribers and  
health care professionals, medical students, and others. The plaintiff gives examples  
of actions constituting the alleged Opioid Misrepresentations, including marketing  
campaigns, print advertisements in medical journals, and others.  
[167] With some exceptions, the plaintiff does not set out the individual actions  
giving rise to claims of misrepresentation and deceit. However, some of the lack of  
particularization of the allegations may be tolerated on the basis that all  
Manufacturer Defendants are said to have engaged in similar deceptive practices  
with respect to the alleged misrepresentations: Watson BCSC at para. 144. Further  
still, the negligent and fraudulent misrepresentation allegations are not free-standing  
claims but claims that certain duties were breached, thereby giving rise to claims  
under the ORA. Overall, on my assessment, the plaintiff appears to have pleaded  
the material facts essential to formulating a breach of the duty.  
[168] With respect to reliance, as noted above, the plaintiff has made out a  
sufficient case that reliance is not required for a claim for a breach of a common law  
duty taken up as an opioid-related wrong under s. 2(1) of the ORA. It accordingly  
need not plead that it relied on the Opioid Misrepresentations to underpin the  
misrepresentation claims.  
[169] I therefore find on the basis of the above that it is not plain and obvious that  
the plaintiff’s negligence-based claims under the ORA are bound to fail. I dismiss the  
defendants’ argument on this point.  
British Columbia v. Apotex Inc.  
Page 56  
b) Duty and Failure to Warn  
[170] The FANCC sets out a claim by the plaintiff against both the Manufacturer  
and Distributor Defendants for failure to warn end users of opioids of the potential  
harms of opioid use.  
[171] The FANCC provides as follows with respect to the Manufacturer Defendants:  
Duty and Failure to Warn  
272. The Manufacturer Defendants owed a duty to end users of Opioids to  
warn of the risks of addiction, dependency, adverse side effects, and death  
attendant upon Opioid use.  
273. At all material times, the Manufacturer Defendants were under a  
continuing duty to keep abreast of scientific developments pertaining to  
Opioids through research, adverse reaction reports, scientific literature, and  
other available methods. The Manufacturer Defendants’ duty to warn required  
them to make all reasonable efforts to communicate adverse or potentially  
dangerous side effects of Opioids to prescribing physicians and end users of  
Opioid Products.  
274. By making and aggressively promoting the Opioid Misrepresentations,  
and failing to make all reasonable efforts to communicate the risks and  
dangers of using their Opioid Products to prescribing physicians and end  
users, the Manufacturer Defendants breached their duty to warn.  
275. The full extent of the risks of addiction, dependency, adverse side  
effects, and death attendant upon Opioid use were in the Manufacturer  
Defendants’ exclusive knowledge and control.  
276. In addition, the Manufacturer Defendants failed to properly monitor the  
safety of their Opioid Products and/or take appropriate corrective action to  
adequately inform prescribing physicians and end users of Opioid Products of  
such safety risks, as knowledge evolved as to such safety risks and side  
effects.  
277. The Manufacturer Defendants’ failure to warn physicians and end users  
of Opioids of the risks associated with Opioid use has caused the plaintiff and  
the proposed Class Members to suffer damage and loss as manifested by the  
Opioid Epidemic.  
[172] As alleged above, the duty owed by the Manufacturer Defendants is set out.  
The FANCC identifies specific opioid products that are in issue for each  
Manufacturer Defendant. In the FANCC, the plaintiff alleges that the Manufacturer  
Defendants vigorously marketed long-acting opioids as less addictive, less subject to  
abuse and diversion, and less likely to cause tolerance and withdrawal issues than  
other pain medications.  
 
British Columbia v. Apotex Inc.  
Page 57  
[173] The FANCC sets out a similar claim against the Distributor Defendants for  
failure to warn:  
Duty and Failure to Warn  
291. The Distributor Defendants owed a duty to end users of Opioids to warn  
of the known risks of addiction, dependency, adverse side effects, and death  
caused by the Opioids they distributed and sold during the Class Period.  
292. The Distributor Defendants breached their duty to warn by failing to warn  
of the known hazards and risks associated with Opioids, including the risk of  
diversion, that were in the Distributor Defendants’ knowledge and control, the  
full extent of which were not known, and could not have been known to the  
plaintiff, the Class Members, or end users of Opioids.  
293. The Distributor Defendants’ failure to warn end users of Opioids of the  
known hazards and risks associated with Opioids has caused the plaintiff and  
the Class Members to suffer damage and loss as manifested by the Opioid  
Epidemic.  
[174] The defendants again argue that this drafting constitutes a lack of specificity.  
In particular, the defendants allege that the plaintiff must address each instance  
where a warning was given and identify how that specific warning was deficient. I  
view that level of particularization as unnecessary here where the torts alleged are  
not free-standing claims, and the plaintiff alleges the defendants engaged in a  
campaign of deceptive and misleading marketing practices as to the risks of their  
products targeting physicians and others.  
[175] As part of their submission that more particulars are required, the defendants  
point out that the plaintiff has not pleaded any material facts in relation to the actual  
warnings contained in the product monographs or labelling of the impugned opioid  
products. The defendants rely on Martin at para. 159 for the proposition that more  
detail is required.  
[176] However, as noted above, the plaintiff’s allegations of a failure to warn  
operate at a broader level than impugning the adequacy of the warning in the  
product monograph. While the product monograph will be one factor for the court to  
consider, the plaintiff also alleges the Manufacturer Defendants failed to properly  
monitor the safety of their opioid products, made Opioid Misrepresentations, and  
failed to make all reasonable efforts to communicate adverse or potentially  
British Columbia v. Apotex Inc.  
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dangerous side effects to prescribing physicians and end users of opioids. As  
reproduced above, the plaintiff alleges similarly broader level allegations against the  
Distributor Defendants.  
[177] The pleadings here also appear to provide greater detail than those in Martin,  
where the statement of claim did not distinguish between negligence claims and  
instead lumped them all together: Martin at para. 130. Further, should it become an  
operative factor in the adequacy of the duty to warn, the sufficiency of the warning in  
the product monograph is a matter for trial, where the evidentiary record will be more  
complete and proper decisions as to weight can be made: Charlton v. Abbott  
Laboratories, Ltd., 2013 BCSC 1712 at para. 65, rev’d on other grounds in 2015  
BCCA 26. In the context of the failure to warn allegations, the plaintiff’s pleadings  
are sufficient to give the defendants notice of the case to meet.  
[178] Relatedly, the parties disagree on the application of the learned intermediary  
doctrine. The Manufacturer Defendants submit that if they owed and breached a  
duty to warnwhich is deniedthey alternatively rely on the learned intermediary  
doctrine, asserting that they had discharged that duty by providing a warning to a  
prescribing physician who is a learned intermediary. In other words, the  
manufacturer need not provide any warning information to patients directly if it  
provides the relevant information to prescribing physicians. The defendants  
reference the federally approved product monograph on their prescription opioid  
products as proof of the warning information provided to prescribing physicians and  
other learned intermediaries.  
[179] The plaintiff argues that the learned intermediary rule is a defence and cannot  
be relied upon to resist an application to amend the pleadings. Moreover, the mere  
existence of an intermediary does not preclude the plaintiff from making a claim of a  
failure to warn. For example, a manufacturer’s duty to warn can only be said to have  
been discharged when the intermediary’s knowledge approximates that of the  
manufacturer: Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634 at para. 29; James  
at paras. 127129; Buchan v. Ortho Pharmaceutical (Canada) Ltd. (1986), 54 O.R.  
British Columbia v. Apotex Inc.  
Page 59  
(2d) 92 (C.A.) at paras. 2324, 5163 [Buchan]. Here, the FANCC alleges a  
campaign of misinformation directed at physicians, and the application of the learned  
intermediary rule is open to argument on the evidence.  
[180] In Stanway v. Wyeth Canada Inc., 2011 BCSC 1057 at para 56, aff’d 2012  
BCCA 260, the Court held that whether the learned intermediary defence was  
established went beyond the scope of the court’s role at certification and was  
properly a merits determination. I agree with this proposition and would follow it  
here.  
[181] On the basis of the foregoing, I decline to find the plaintiff’s failure to warn  
claim is bound to fail on this basis.  
c) Negligent Design  
[182] With respect to the plaintiff’s ORA-based negligent design claim, the plaintiff  
alleges that the Manufacturer Defendants knew or ought to have known that their  
opioid-related products were not safe. Specifically, the FANCC provides as follows:  
Negligent Design  
265. The Opioid Products were defectively designed by the Manufacturer  
Defendants. By selecting highly addictive opiates as the active ingredient for  
their products, the Defendants created products that were not reasonably  
safe for use in the treatment of chronic, non-cancer pain. The risks of harm  
arising from addiction and dependence far exceeded the utility of opioids as a  
pain medication for chronic, non-cancer pain. In particular, at all material  
times, the Manufacturer Defendants knew or ought to have known that:  
(a) prolonged use of Opioids created a heightened risk of  
addiction and dependency;  
(b) the adverse health consequences arising from addiction  
and dependence were severe and included death;  
(c) Opioids are susceptible to abuse and did not have an  
effective abuse deterrent design;  
(d) there was no scientific evidence demonstrating the efficacy  
of Opioids in the treatment of chronic, non-cancer pain;  
(e) there was no scientific evidence demonstrating that  
prolonged use of Opioids to treat chronic non-cancer pain  
resulted in an increase in function or quality of life;  
 
British Columbia v. Apotex Inc.  
(f) Opioids were no more efficacious in the treatment of  
Page 60  
chronic non-cancer pain than alternatives such as nonsteroidal  
anti-inflammatory drugs (NSAIDS);  
(g) NSAIDs were at least as effective as opioids in the  
treatment of chronic, non-cancer pain with no risk of the  
adverse health consequences arising from addiction and  
dependence;  
(h) it was possible to design medication for the treatment of  
chronic non-cancer pain which was at least as effective as  
Opioids with no or a highly reduced risk of adverse health  
consequences.  
[183] To