British Columbia v Apotex Inc.

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.

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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.

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(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 Subclass” referred 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. 9–127 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. 207–215 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.

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[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. 133–157 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. 158–206 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.

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[24] At paras. 216–235 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. 238–241 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 wrong” means

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.

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[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.

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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

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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

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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. 22–23. 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 75–76.

[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. 15–22;

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) (loose‑leaf updated

2021) at 3–6; 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. 16–17 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. 19–20, and

Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 at paras. 18–19 [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. 16–18, 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. 117–121, 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.

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[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. 29–37; 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. 93–101, 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, 12^thed. (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. 130–135. 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. 93–94, aff’d 2017 BCCA 302, aff’d 2019

SCC 42; Fairhurst v. Anglo American PLC, 2014 BCSC 2270 at paras. 18–25

[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. 89–97.

[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 meet—an 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. 9–10. 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 proximity—a 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 concept” and 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,

284–285;

(d)

the plaintiff and Class Members suffered foreseeable damages and

loss as manifested by the Opioid Epidemic: FANCC at paras. 263–264, 287–

288; and

(e)

the plaintiff’s and Class Members' damages were caused by the

defendants’ negligence: FANCC at paras. 263–264, 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 226–231 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.

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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.

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[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. 66–70. 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. 73–74 [Botiuk]; Stanley Cup Rioters at

paras. 22–27; Cook v. Lewis, [1951] S.C.R. 830. In Botiuk, the Court stated as

follows:

British Columbia v. Apotex Inc.

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[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. 42–43. 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.

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submit that this is suggestive of Purdue’s role as a primary tortfeasor. For instance,

paras. 138–139 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.]

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[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. 40–42.

[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. 73–76.

British Columbia v. Apotex Inc.

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[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 defendants’ position 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.

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[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. 13–15. 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. 107–108 [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.

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[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 § 1:10–1:11:

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.

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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.

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[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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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, 76–81; 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.

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[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. 33–35, 45, and 51 [Rebuck]. The plaintiff also

points to Pro-Sys at paras. 65–71, 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. 90–92, Finkel v. Coast Capital Savings Credit Union,

2017 BCCA 361 at paras. 82–83; Gomel v. Live Nation Entertainment, Inc., 2021

BCSC 699 at para. 96, and Sandhu at paras. 76–78.

[150] Justice Branch recently dealt with this point in Krishnan v. Jamieson

Laboratories Inc., 2021 BCSC 1396 at paras. 62–73, 181–189 [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

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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.

62–64 [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. 14–17, 28–37; Pioneer Corp. v. Godfrey, 2019 SCC 42 at

paras. 56–74 [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 context—for 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.

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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.

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[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

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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

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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.

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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.

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[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

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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 warn—which is denied—they 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. 127–129; Buchan v. Ortho Pharmaceutical (Canada) Ltd. (1986), 54 O.R.

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(2d) 92 (C.A.) at paras. 23–24, 51–63 [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 succeed in a claim for negligent design, the plaintiff must generally: (1)

identify the design defect; (2) establish that the defect created a substantial

likelihood of harm; and (3) establish that there exists an alternative design that is

safer and economically feasible to manufacture: Kreutner v. Waterloo Oxford Co-

operative Inc. (2000), 50 O.R. (3d) 140 (C.A.) at para. 8; Martin at paras. 135–136;

Vester v. Boston Scientific Ltd., 2015 ONSC 7950 at para. 10. To determine if a

product is defective, courts often apply a general and flexible approach in

determining what was reasonable to expect of the product in all the circumstances.

This may involve applying a “risk-utility” analysis that specifically considers the

availability of safer alternatives. A manufacturer of a product does not have the right

to manufacture an inherently dangerous article when a method exists of

manufacturing the same article without risk of harm: Cantlie v. Canadian Heating

Products Inc., 2017 BCSC 286 at para. 195.

[184] The plaintiff submits that its pleadings set out all three elements of a negligent

design claim against the Manufacturer Defendants. It pleads that the design defect

was the highly addictive opiates used as the active ingredient in the Manufacturer

Defendants’ opioid products; that these highly addictive opioid products were not

reasonably safe for treating chronic, non-cancer pain; and that it was feasible to

design these products in a safer manner using alternatives such as non-steroidal

anti-inflammatory drugs (“NSAIDs”).

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[185] The defendants argue that the FANCC merely alleges bald conclusions

unsupported by material facts. They find fault with the FANCC in several respects,

including the following:

 the FANCC does not identify any negligently designed feature of any of the

prescription opioid medicines;

 the plaintiff is required to list the specific design defects for each of the 71

opioid products named in the FANCC (instead of merely alleging that the

design defect is the highly addictive opioid products);

 the plaintiff uses non-exclusive language when listing the opioid products in

the FANCC, and it is not clear that the plaintiff has named all impugned opioid

medicines;

 the plaintiff is required to specify how alternative designs would be safer

compared to each of the 71 opioid products;

 the inherent qualities of the medicine is not a design feature or design choice;

and

 for some patients, the benefits of opioid medicines outweigh the risks, and

therefore they cannot be negligently designed.

[186] I would approach the issue of sufficiency from the perspective that negligent

design is another ORA-based claim. The plaintiff alleges a breach of a duty, which

the ORA transforms into a cause of action and liability for damages. In my view, the

plaintiff has pleaded the core elements of a negligent design claim giving rise to a

breach of a duty.

[187] It appears to me that some of the defendants’ arguments are a desire for

further particulars rather than material facts. In the present context, the allegations

provide sufficient notice of the case to meet. However, if I were of the view that the

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FANCC was insufficient in the manners alleged, I would be inclined to consider an

order for particulars before striking this aspect of the plaintiff’s claim.

[188] I cannot agree that the plaintiff fails to identify a feature of the opioid products

that was negligently designed. The FANCC alleges that the highly addictive nature

of opioid ingredients and the associated adverse health consequences arising from

addiction and dependence amounted to a design defect. The FANCC alleges that

the manufacturers could have created a less addictive pain medication that was less

prone to abuse through a feasible and safer alternative design using an NSAID. I

would not require the plaintiff to go further and plead that there are no other

legitimate purposes for the impugned opioid drugs that are alleged to be negligently

designed.

[189] Further, the defendants appear to attempt to conduct the risk-benefit analysis

at the pleadings stage to show that there was no negligent design. The defendants

point out that many products, such as motorcycles, carry a risk of injury, and yet the

social utility of supplying the product outweighs the known risk of harm: Baker v.

Suzuki Motor Co. (1993), 143 A.R. 1 at paras. 130–131. In the case of prescription

drugs, the defendants argue that the duty of manufacturers to warn consumers is

discharged if the manufacturer provides prescribing physicians, rather than

consumers, with adequate warning of the potential danger: Buchan. On the other

hand, the plaintiff alleges that the kind of harm caused by opioids should have been

anticipated by the defendants, thereby making a warning an inadequate defence:

Good-Wear Treaders Ltd. v. D & B Holdings Ltd. (1979), 31 N.S.R. (2d) 380 (S.C.)

at paras. 7–8. The FANCC contains enough detail to alert the defendants to the

plaintiff’s position on this issue, which will ultimately be an issue for trial.

[190] I do not consider it appropriate to weigh such considerations at this stage on

the applications to strike and the application to amend. Within the consideration of

the alleged existence and breach of a duty taken up as a cause of action by the

ORA, I assess that the success of the various arguments as to negligent design

choices, awareness of risk, and poor risk-management in the development of opioid-

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related products will depend on the evidence. In my view, it is not plain and obvious

that the plainitff’s negligent design claim is bound to fail.

d) Negligence

[191] The FANCC contains a number of paragraphs detailing general allegations of

negligence against the Manufacturer Defendants and the Distributor Defendants.

Both are alleged to have breached the standard of care owed to the plaintiff, Class

Members, and end users of opioids in several ways. The plaintiff alleges that the

harm the defendants created in the form of the Opioid Epidemic was foreseeable.

[192] The plaintiff’s allegations in negligence include negligent misrepresentation,

negligent design, and failure to warn—all rooted in the ORA-based claims. As these

claims have been dealt with above, there is no need to assess the general

negligence claims further.

THE INDEPENDENT CLAIMS – PUBLIC NUISANCE AND UNJUST

ENRICHMENT

a) Public Nuisance

[193] The plaintiff seeks to add in the FANCC, for the first time in these

proceedings, a claim for public nuisance as a direct cause of action against all

defendants. This amendment is strongly opposed by the defendants.

[194] As noted above, the plaintiff alleges that the defendants created or assisted in

the creation of an “Opioid Epidemic” that has “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. As part of the relief sought in the proposed

amendments in the FANCC, the plaintiff seeks a declaration that the defendants’

alleged misconduct created the Opioid Epidemic and that the Opioid Epidemic is a

public nuisance, along with damages.

[195] The plaintiff sets out its claim in public nuisance as follows:

Public Nuisance

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301. The conduct of the Defendants, individually and in concert with each

other, has created the Opioid Epidemic in Canada, including in British

Columbia, which constitutes a public nuisance.

302. The Defendants’ conduct unreasonably interferes with the Canadian and

British Columbian public’s health, safety, morality, comfort, and convenience.

Further, the Defendants’ conduct amounts to an attack upon the rights of

Canadians, including British Columbians, to live their lives unaffected by

inconvenience and discomfort caused by the Opioid Epidemic that is plaguing

all of Canada.

303. The Defendants’ unlawful acts and omissions of their duties annoy,

injure, or endanger the comfort, health, and safety of Canadians, including

British Columbians.

304. Particulars of the annoyance, injury, and danger to the comfort, health,

and safety of the Canadian and British Columbian public includes, but is not

limited to:

(a) a decrease in life expectancy at birth between 2016 and

2017 in Canadian males and females;

(b) 11,500 apparent Opioid-related deaths in Canada between

January 2016 and December 2018;

(c) 4,588 apparent Opioid-related deaths in Canada in 2018

alone;

(d) a five-fold increase in the prevalence of neonatal

abstinence syndrome in Canada between 2000 and 2012; and

(e) the ranking of Canadians as the second highest per capita

consumers of Opioids in the world.

305. The Defendants’ conduct and resulting Opioid Epidemic, which includes

abuse, physical dependence, addiction, adverse health side effects, and

death has caused the plaintiff and the Class Members to bear enormous

social and economic costs including increased health care, criminal justice,

and the costs of lost work productivity, among others, as manifested by the

Opioid Epidemic.

306. The plaintiff seeks to abate the public nuisance the Defendants created

and seeks all necessary relief to abate such public nuisance.

[196] The public nuisance claim is a stand-alone claim not dependent on the

operation of the ORA or the HCCRA. To succeed in a public nuisance claim, the

plaintiff must establish both (1) a public right and (2) an unreasonable interference

with that right by the defendants: Ryan v. Victoria (City), [1999] 1 S.C.R. 201 at para.

52 [Ryan]. The defendants say the plaintiff does not, and cannot plausibly, plead

either element.

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i.The Public Nuisance Claim Generally

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[197] In generally examining whether the plaintiff’s public nuisance claim can

arguably extend to cast the Opioid Epidemic at the feet of the defendants, I note that

the Supreme Court of Canada in Ryan described public nuisance as follows:

[52]

The doctrine of public nuisance appears as a poorly understood area

of the law. “A public nuisance has been defined as any activity which

unreasonably interferes with the public’s interest in questions of health,

safety, morality, comfort or convenience”: see Klar, supra, at p.

525. Essentially, “[t]he conduct complained of must amount to . . . an attack

upon the rights of the public generally to live their lives unaffected by

inconvenience, discomfort or other forms of interference”: See G. H. L.

Fridman, The Law of Torts in Canada, vol. I (1989), at p. 168. An individual

may bring a private action in public nuisance by pleading and proving special

damage. See, e.g., Chessie v. J. D. Irving Ltd. (1982), 1982 CanLII 2918 (NB

CA), 22 C.C.L.T. 89 (N.B.C.A.). Such actions commonly involve allegations

of unreasonable interference with a public right of way, such as a street or

highway. See ibid., at p. 94.

[Emphasis added.]

[198] In British Columbia v. Canadian Forest Products Ltd., 2004 SCC 38 at para.

66 [Canadian Forest Products], the Supreme Court of Canada confirmed the

statement of law in Ryan:

[66]

Historically, of course, the Attorney General, representing the Crown,

has been the appropriate party to sue for abatement of a public nuisance.

Recently, the Court adopted as correct the proposition that "any activity which

unreasonably interferes with the public's interest in questions of health,

safety, morality, comfort or convenience" is capable of constituting a public

nuisance: Ryan v. Victoria (City), [1999] 1 S.C.R. 201 (S.C.C.), at para. 52. It

seems to me that the act of Canfor in burning down a public forest is capable

of constituting a public nuisance. It was also negligence.

[Emphasis added.]

[199] The Court in Canadian Forest Products commented generally at para. 81 that

there was no legal barrier to the Crown suing in a proper case for compensation in

public nuisance in an environmental damage context.

[200] Both Ryan and Canadian Forest Products reference activities that

unreasonably interfere in the public’s interest in questions of “health” and “safety.” I

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view this language as instructive on the question of whether the plaintiff has an

arguable claim for public nuisance against the defendants.

[201] To a similar effect is Ontario (Attorney General) v. Dielemen (1994), 20 O.R.

(3d) 229 (S.C.) [Dielemen], dealing with an application for an injunction to enjoin

picketing outside hospitals and clinics offering abortion services, where the Court

agreed with the Attorney General’s standing to enjoin conduct constituting a public

nuisance and its desire to protect health care as “a public resource.” On this view,

the creation of a public health hazard such as the Opioid Epidemic, as defined by

the plaintiff in the FANCC, could arguably fall within the scope of the tort.

[202] While decided in a different context, I draw some guidance from the decision

in Saik'uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., 2015 BCCA

154, where the Court of Appeal allowed an appeal by the plaintiffs (the Nechako

Nations) from an order striking its notice of civil claim and dismissing its action

against a company that constructed and operated a hydroelectric dam. The

appellants claimed for public nuisance and breach of riparian rights resulting from

the operation of the dam. In allowing the appeal, the Court of Appeal commented as

follows:

[57] A public nuisance requires an activity that unreasonably interferes with

the public's interest in such things as health, safety, morality, comfort or

convenience. It is necessary in an action for public nuisance for the plaintiff to

prove special damage. In my view, it is arguable that unreasonable

interference with the public's interest in harvesting fish from the Nechako

River system is a type of interference protected by the tort of public nuisance.

[203] It has been pointed out that tort of public nuisance has criminal origins:

George v. Newfoundland and Labrador, 2016 NLCA 24 at para. 69. Section 180 of

the Criminal Code, R.S.C. 1985, c. C-46 similarly grounds the definition of the

offence of common nuisance as applicable to every person who (a) endangers the

lives, safety or health of the public, or (b) causes physical injury to any person: see

also R. v. Thornton, [1993] 2 S.C.R. 445, where the Court upheld a public nuisance

conviction where the accused failed to disclose their HIV positive status when

donating blood to the Red Cross. In that instance, in a short oral judgment, the

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Supreme Court of Canada concluded that “[t]his common nuisance obviously

endangered the life, safety and health of the public.”

[204] I am also cognizant of the proposition in Ryan that a determination of whether

an activity is a public nuisance is a question of fact:

[53] Whether or not a particular activity constitutes a public nuisance is a

question of fact. Many factors may be considered, including the

inconvenience caused by the activity, the difficulty involved in lessening or

avoiding the risk, the utility of the activity, the general practice of others, and

the character of the neighbourhood. See Chessie, supra, at p. 94 . . .

[205] Given the multitude of factors at play in this particular context, I assess that

the legal significance of the facts and viability of the allegations made by the plaintiff

in this particular context would benefit from the development of a full factual record

at trial.

[206] At this stage, I am concerned with screening out clearly unmeritorious claims.

Novelty alone is not a ground upon which to find that a claim is doomed to fail. As

noted by Justice Moldaver, writing for the majority in Babstock:

[19] Of course, it is not determinative on a motion to strike that the law has

not yet recognized the particular claim. The law is not static, and novel claims

that might represent an incremental development in the law should be

allowed to proceed to trial . . . .

[Citations omitted]

[207] Similarly, in Violette at para. 40, the Court held that in assessing the question

of whether a claim ought to be struck, it is not determinative that the law has not yet

recognized a particular claim.

[208] While a public nuisance claim in this context is indeed novel in Canada—a

submission which the plaintiff concedes—the law of public nuisance has sufficient

scope that it could arguably encompass the health-related allegations made in the

plaintiff’s public nuisance claim.

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ii. A Public Good

[209] In characterizing the public good or object interfered with, the defendants

submit that the plaintiff pleads no facts demonstrating interference with a public

resource or right. They argue that the plaintiff does not, and cannot, identify any

interference with the right to use and enjoy public property and resources. Hence,

the defendants urge a narrower grounding of public nuisance in the protection of a

public good or right, closer to a foundation in the protection of a property right. The

defendants submit that, at best, the plaintiff is trying to conjure a public right by

aggregating alleged violations of private rights (e.g. end users’ rights to sue for the

allegedly negligent design and marketing of the opioid products). The defendants

submit that those allegations do not disclose a valid public nuisance claim.

[210] By way of example, the defendants point to the refusal of an Ontario court to

extend the tort of public nuisance to a manufacturer of handguns on the basis that

product liability was a matter of negligence and that public nuisance was more

typically about the harm caused to public property or public activities: Price v. Smith

& Wesson Corp., 2021 ONSC 1114 [Price].

[211] The defendants submit that the plaintiff merely references public interests

rather than a public right. However, in my view, the dicta in Ryan and Canadian

Forest Products, referenced above, clearly contemplates public health as an

actionable public right in relation to a public resource: the health and safety of the

public. Ryan at para. 52 refers to “the public interest in questions of health.”

Canadian Forest Products at para. 66 references Ryan as “correct” on this point.

Hence, the Supreme Court of Canada in both Ryan and Canadian Forest Products

refers to public interests in its statements of the law, and the differentiating

distinction that the defendants seek to draw is, with respect, not supported in these

guiding authorities. Nor have the defendants referenced any other cases that would

elevate the public interest/public right distinction as a limiting factor in this context.

[212] As noted above, the Court in Dielemen considered whether protestors

picketing abortion clinics constituted a public nuisance. In its nuisance analysis, the

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Court held that the evidence revealed a prima facie interference with the reasonable

use and enjoyment of the clinic locations and the homes and offices of physicians.

On my reading, the Court took into consideration the health and privacy interests of

those affected by the protest.

[213] Similarly, in Attorney General of Ontario v. Orange Productions Ltd. et al.,

[1971] 3 O.R. 585 (S.C.) [Orange Productions], the Attorney General of Ontario

applied to restrain the defendants from holding an outdoor music festival on the

ground that the festival would constitute a public nuisance. While the Court

referenced property rights in granting the injunction, it also referred to health risks in

its reasoning.

[214] In para. 302 of the FANCC, the defendants’ conduct is alleged to

unreasonably interfere with the Canadian and British Columbian public’s health,

safety, morality, comfort, and convenience. The defendants’ conduct is alleged to

amount to an attack upon the common interests or rights of Canadians, including

British Columbians, to live their lives unaffected by inconvenience and discomfort

caused by the Opioid Epidemic that is plaguing all of Canada. On my reading of the

FANCC, an arguable case is made out that the defendants’ conduct engaged the

health and safety of the public.

[215] I therefore cannot agree that the plaintiff’s argument is bound to fail because

its claim does not adequately set out a public right relating to the use and enjoyment

of public property.

iii. Unreasonable Interference

[216] The defendants further submit that, even if the plaintiff could plead some

public right, the plaintiff’s claim would still fail because it does not properly plead that

the defendants unreasonably interfered with that right. The defendants further

submit that the plaintiff’s theory is incompatible with such a pleading.

[217] As noted above, the question of unreasonable interference is contextually

driven and dependent on a number of factors, including the inconvenience caused

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by the activity, the difficulty involved in lessening or avoiding the risk, the utility of the

activity, general practice of others, and the character of the neighbourhood: Ryan at

para. 53. In this regard, the defendants have pointed out that their products were

prima facie lawfully manufactured and distributed, that other products such as

sugary drinks and fatty foods have not been held to constitute an unreasonable

interference with public health, and that there were therapeutic benefits associated

with the impugned opioid-related products.

[218] The FANCC alleges that the conduct of the defendants, individually and in

concert with each other, created the Opioid Epidemic throughout Canada, thus

constituting a public nuisance. As noted above in Ryan at para. 53, the question of

whether or not a particular activity constitutes a public nuisance is a question of fact.

Similarly, the question of whether or not the defendants unreasonably interfered with

a public right is a question of fact.

[219] The FANCC is replete with allegations of the defendants interfering with the

health of British Columbians and other Canadians. While the allegations are

disputed, I cannot find fault with the form of the plaintiff’s pleadings in this respect.

The issue of unreasonable interference is an issue for trial.

[220] By pleading (a) an unreasonable interference with the Canadian and British

Columbian public’s health, safety, comfort, and convenience, (b) the creation of the

Opioid Epidemic and its associated adverse health effects, and (c) the resultant

adverse social, health and economic effects, the plaintiff has done enough at this

stage to convince me that its claims are not bound to fail on the bases submitted by

the defendants.

iv. “Undue Expansion” of Public Nuisance

[221] The defendants caution against a “dramatic” and “undue expansion” of the

doctrine of public nuisance by applying it to the present context of opioid

manufacturing and distribution. They argue that doing so would supersede

established tort law, obliterating longstanding distinctions between different causes

of action and each of their well-developed requirements. The defendants also point

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out that other branches of the law, such as product liability, already provide a basis

for potential liability. The defendants caution that, so long as a plaintiff could prove

that a product, service, or medication resulted in adverse effects on a sufficiently

large scale, then any manufacturer, distributor, marketer, or seller—from one end of

the supply chain to the other—could be liable. They submit that the defendants are

not insurers of anyone who might suffer an injury while using or misusing an opioid

product. On this argument, the plaintiff’s approach would render the statutory tools

chosen by some legislators, such as the ORA, inconsequential. The defendants

further say that the ORA exists because the plaintiff does not otherwise have a direct

omnibus cause of action, like the public nuisance claim it now seeks to make.

[222] The defendants rely on the decision in Price for the proposition that “[a]

manufacturer cannot be liable in nuisance for simply distributing its product in the

course of business because it lacks a particular safety feature or is misused by

others.” Price involved motions to strike pleadings, to dismiss the plaintiff’s action,

and to certify the proposed class action. Following the tragic events known as the

“Danforth Shooting” in Toronto, involving a stolen handgun without “authorized user”

or “smart gun” technology, the plaintiffs brought a proposed class action against the

manufacturer of the stolen handgun, Smith & Wesson. The plaintiffs’ claim was for

negligent design, manufacture, and/or distribution, public nuisance, and strict

liability. Ultimately, the Court struck out the plaintiff’s public nuisance claim, holding

in part as follows:

[115] In the immediate case the alleged wrongful activity of Smith &

Wesson is selling a handgun that does not utilize authorized user technology.

That activity does not resemble either typical category of public nuisance

claim. . . . The manufacture of the M&P®40 was a regulated and permitted

activity for Smith & Wesson. Society from the days of the Neanderthals until

today does not regard fabricating weapons as a public nuisance although the

misuse of those weapons — by others — may be. A manufacturer of a

product cannot be made liable in nuisance for simply distributing its product in

its course of business because the product is then misused by others causing

harm to the plaintiffs.

[223] Here, the broad allegation is that the Manufacturer Defendants vigorously

marketed opioids as less addictive, less subject to abuse and diversion, and less

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likely to cause tolerance and withdrawal than other pain medications. The primary

objective of their conduct was allegedly to overcome resistance in the community to

the use of prescription opioids in order to expand the market for opioid products.

Similarly, the allegation against the Distributor Defendants is that they ignored

suspicious sales volumes and patterns and inappropriately engaged in a common

design with other defendants to maximize opioid sales in Canada.

[224] In my view, while the plaintiff’s public nuisance claim may have some overlap

with its negligence-based claims, the overlap alone does not bar the nuisance claim.

On this point, in Canadian Forest Products at para. 66, Justice Binnie (writing for the

majority) held that the act of the company in burning down a public forest was

capable of constituting both public nuisance and negligence.

[225] Product liability claims are based on harm caused by a product alone. By

contrast, the public nuisance claim here arguably engages both the resulting harm

and the conduct of the manufacturers and distributors. The plaintiff’s nuisance claim

might develop traction on the basis that it is not premised solely on injuries caused

by the manufacturing and distributing opioid products themselves but also on the

alleged false and misleading promotion and marketing by the defendants.

[226] Moreover, the widespread and severe effects of the alleged improper

manufacturing and distribution of opioid-related products could weigh in favour of the

present proceeding being a suitable one for public nuisance. One rationale behind

public nuisance claims is that the harm complained of is so widespread in its range,

or so indiscriminate in its effect, that it would not be reasonable to expect one person

to take proceedings on their own responsibility, but rather it should be taken on by

the community at large: Sutherland v. Canada (Attorney General), 2002 BCCA 416

at para. 32, quoting Attorney-General v. P.Y.A. Quarries Ltd., [1957] 2 Q.B. 169 (CA)

at pp. 190–191 per Lord Denning (as he then was). As well, the degree of harm

(alleged to include widespread addiction, dependence, and death) is a seemingly

legitimate factor in this analysis.

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[227] The parties pointed to some of the early U.S. litigation on the application of

nuisance law to opioid products: see for example State of Oklahoma v. Johnson &

Johnson et al., 2021 OK 54 [State of Oklahoma]; In Re: National Prescription Opiate

Litigation, (2020 US Dist LEXIS 13330); In re opioid litigation (2019 NY Misc. LEXIS

3324); The People Of the State of California v. Purdue Pharma LP, Case No. 30-

2104-00725287-CU-BT-CVC [State of California]. Some of the U.S. cases rely on

public nuisance statutes, which is not the case here. In the recent decision of State

of Oklahoma, a majority of the Supreme Court of the State of Oklahoma declined to

extend its public nuisance statute to cover the manufacturing and distribution of

opioids. The majority reasoned that: (1) the manufacture and distribution of products

rarely cause a violation of a public right; (2) a manufacturer does not generally have

control of its product once it is sold; and (3) a manufacturer could be held perpetually

liable for its products under a nuisance theory. The dissent would have allowed the

lawsuit to proceed inter alia on the basis that the public nuisance was limited to the

wrongful conduct of the defendants in deceptively marketing opioids. Similarly, in

State of California, the Superior Court of California dismissed the defendants’

challenge to a public nuisance claim on the basis that the defendants’ false and

misleading marketing (allegedly leading to the overprescribing, overuse, and misuse

of opioids) could support an action within the statutory definition of public nuisance.

While the U.S. authorities are mixed, some have relied on legal and policy

arguments such as those offered by the parties here to reject or justify the

application of a public nuisance claim to the context of improper opioid

manufacturing or distribution.

[228] The American experience of attempting to apply nuisance law to product

liability situations, with varying degrees of success, is not reflected in Canadian

jurisprudence to date: Gregory S. Pun, Margaret I. Hall & Ian M. Knapp, The Law of

Nuisance in Canada, 2nd ed (Toronto: LexisNexis, 2015) at §2.11. However, I can

discern nothing in the applicable principles in Ryan, Canadian Forest Products, and

other guiding authorities that would prohibit the arguable application of public

nuisance law to the defendants’ conduct in creating the Opioid Epidemic as alleged.

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[229] These decisions provide that many factors impact whether a particular activity

constitutes a public nuisance, and the analytical framework is sufficiently flexible to

allow consideration of the defendants’ arguments to limit the application of the

doctrine in situations where lawfully regulated medicine is manufactured and

distributed for therapeutic purposes. In my view, I ought not to make a determination

on the various considerations in the scope of the tort at this stage, given that my

inquiry is limited to whether it is plain and obvious that the claim is bound to fail.

[230] The submissions about the appropriate application of public nuisance liability

beyond the traditional bounds of product liability, and its potential application to the

defendants’ opioid-related products and the Opioid Epidemic, will attract further

consideration at the end of the day. However, in light of the above-mentioned

jurisprudence and the factual inquiry called for by the governing authorities, the

cautious lines the defendants seek to draw about the public nuisance doctrine are

not so clear as to bar what appears to be an arguable claim for public nuisance from

proceeding further.

v. Conclusion on Public Nuisance

[231] The defendants have not met the burden of demonstrating that the plaintiff’s

public nuisance claims are bound to fail as a matter of law. Based on the foregoing,

the plaintiff has an arguable claim in public nuisance, the merits of which are a

matter for assessment on a full factual record at trial.

b) Unjust Enrichment

[232] The plaintiff alternatively pleads that it and the Class Members are entitled to

recover based on unjust enrichment by the Manufacturer Defendants. The FANCC

alleges that the Manufacturer Defendants were enriched by revenue received from

opioid purchases made by the plaintiff and Class Members. The plaintiff alleges that

the Manufacturer Defendants, by virtue of their deceptive promotion of opioids,

obtained enrichment that they would not have otherwise. The plaintiff further submits

that contracts for these purchases do not provide a juristic reason for the enrichment

of the Manufacturer Defendants, given their wrongful and unlawful actions.

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[233] The FANCC provides as follows:

Unjust Enrichment

294. Further, and in the alternative, the plaintiff waives any tort pleaded

above, and pleads that it and the Class Members are entitled to claim and

recover based on equitable and restitutionary principles.

295. As an expected and intended result of their unlawful conduct, the

Manufacturer Defendants have profited and benefited from Opioid purchases

made by the plaintiff and the Class Members.

296. In exchange for the Opioid purchases, at the time the plaintiff and the

Class Members made these payments, the plaintiff and the Class Members

expected that the Manufacturer Defendants had provided all of the necessary

and accurate information and had not misrepresented any material facts.

297. By illegally and deceptively promoting Opioids, directly, through their

control of third parties, and by acting in concert with third parties, the

Manufacturer Defendants have been unjustly enriched by the receipt of the

revenue from the sale of Opioids.

298. The plaintiff and the Class Members have suffered a corresponding

deprivation in the amount of the cost of Opioids purchased from the

Manufacturer Defendants. Because of their deceptive promotion of Opioids,

the Manufacturer Defendants obtained enrichment that they would not

otherwise have obtained.

299. Since the revenue from the sale of Opioids that was received by the

Manufacturer Defendants from the plaintiff and the Class Members resulted

from the Manufacturer Defendants’ wrongful and unlawful acts, there is and

can be no juridical reason justifying the Manufacturer Defendants retaining

any part of it. In particular, there is no contract, disposition of law, donative

intent or other valid legal obligation that justifies the enrichment.

300. The Manufacturer Defendants must disgorge its unjustly acquired profits

and other monetary benefits resulting from its unlawful conduct and provide

restitution to the plaintiff and the Class Members.

[234] In Kerr v. Baranow, 2011 SCC 10 at para. 32 [Kerr], the Supreme Court of

Canada explained that recovery for unjust enrichment is available if the plaintiff can

establish that (a) the defendant has been enriched, (b) the plaintiff suffered a

corresponding detriment, and (c) there is no juristic reason for the enrichment. As a

general rule governing pleadings, the plaintiff must plead material facts in support of

each element of an unjust enrichment claim, one of which is the absence of a juristic

reason for the enrichment. In other words, “this means that there is no reason in law

or justice for the defendant’s retention of the benefit conferred by the plaintiff,

making its retention ‘unjust’ in the circumstances”: Kerr at para. 40.

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[235] The juristic reason element requires a two-step analysis. First, the plaintiff

must show that no juristic reason from an established category exists to deny

recovery—such as a contract, a gift, or a disposition of law. If there is no juristic

reason from an established category, then the plaintiff has made out a prima facie

case which the defendant may rebut by showing that there is another residual

reason to deny recovery. As a part of the defendant’s attempt to rebut, courts should

have regard to the reasonable expectations of the parties and public policy

considerations: Kerr at paras. 41, 43; Moore v. Sweet, 2018 SCC 52 at paras. 56–

58.

[236] The defendants argue that the plaintiff invalidates its own pleading by alleging

a juristic reason for any alleged enrichment by the defendants: namely, the contract

of purchase and sale of prescription opioid products. They further argue that the

plaintiff has not pleaded that any such existing contracts are void or unenforceable.

[237] The plaintiff responds by arguing that, while a contract may in some

circumstances constitute a juristic reason for a benefit, it does not extend so far as to

bar a claim for unjust enrichment. It says that it has pleaded that there is no

contractual justification for the enrichment and is not required to explicitly plead that

any contract that may exist is void or unenforceable. Further, the plaintiff relies on

cases in which claims for unjust enrichment have been certified where an unlawful

act, like a breach of statute, negates any purported juristic reason for any

enrichment: see for example Kett v. Mitsubishi, 2020 BCSC 1879 at paras. 92, 95–

97 [Kett]; Bodnar v. The Cash Store, 2005 BCSC 1228, aff’d 2006 BCCA 260; Tracy

v. Instaloans Financial Solutions Centres (B.C.) Ltd., 2006 BCSC 1018 at paras. 49–

50; Watson BCCA para. 58; and Pioneer Corp SCC.

[238] A determination of these issues on the merits is difficult to make at this stage.

In Pro-Sys at para. 88, in response to a similar argument, the Supreme Court of

Canada held that “[t]he question of whether the contracts are illegal and void should

not be resolved at this stage of the proceedings. These are questions that must be

left to the trial judge.” As in Pro-Sys, here the claim of a contract constituting a

British Columbia v. Apotex Inc.

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sufficient juristic reason for the enrichment of the defendants depends in part on

whether they are found to be valid and enforceable. If the contracts are rescinded or

voidable, the contracts cannot serve as a “juristic reason” for the enrichment of the

contracting party: see Kett at para. 92 and the authorities quoted therein.

[239] The defendants further argue that the unjust enrichment claim fails for lack of

particularity in the pleadings. I cannot agree. The pleadings allege a benefit to the

defendants, detriment to the plaintiff and a lack of juristic reason. The validity of any

contractual justification is disputed and subject to further determination on a

common basis at trial. In my view, the plaintiff has pleaded the appropriate elements

of the unjust enrichment claim in the FANCC.

[240] Once again, the present question is not whether the plaintiff will succeed with

its claim in unjust enrichment but whether the claim is doomed to fail. It is premature

to conclude that the existence of a contract is sufficient to bar the plaintiff’s unjust

enrichment claim. I therefore dismiss the defendants’ argument on this point.

[241] The plaintiff’s original claim included an assertion of “waiver of tort” as a basis

for relief. The plaintiff says it has removed its claim for waiver of tort in the FANCC

subsequent to Babstock, where the Supreme Court of Canada held that waiver of

tort cannot be asserted as an independent cause of action for disgorgement. With

the plaintiff’s concession, waiver of tort will not form part of its FANCC.

CLAIMS UNDER THE HCCRA

[242] The defendants object to the duplication of the plaintiff’s claim under a second

statute, the HCCRA, that provides a cause of action for breach of common law and

statutory duties. As noted above, the ORA was enacted in 2018 and provides in s.

2(1) that the plaintiff has 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, the definition of which includes a tort committed in B.C. that

“causes or contributes to opioid-related disease, injury or illness”: s. 1.

British Columbia v. Apotex Inc.

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[243] For reasons that follow, I find that the plaintiff’s HCCRA-based claims are not

bound to fail for failing to disclose a reasonable claim pursuant to R. 9-5(1)(a).

However, I nonetheless find that such claims are unnecessary and therefore strike

these claims pursuant to R. 9-5(1)(b).

[244] The HCCRA, which came into force on April 1, 2009, prior to the ORA,

similarly allows the plaintiff to recover from a “wrongdoer” the cost of health care

services provided to a beneficiary who suffers “a personal injury for which the

beneficiary receives or could reasonably be expected to receive one or more health

care services,” where the health care services resulted from the wrongdoer’s

negligence or wrongful act or omission: s. 8(1) of the HCCRA. The defendants seek

to strike the general HCCRA claims on the basis that the plaintiff has no reasonable

claim under that statute and is, in any event, unnecessary.

[245] The following paragraphs in the FANCC reference the plaintiff’s HCCRA

claims:

130. The plaintiff relies on section 11(1)(b) of the ORA, which permits the

plaintiff to bring an action pursuant to section 4 of the Class Proceedings Act,

RSBC 1996, c. 50 on behalf of a class consisting of one or more of the

government of Canada and the government of a jurisdiction within Canada.

131. In the alternative the plaintiff relies on section 8 of the Health Care Costs

Recovery Act, SBC 2008, c 27d and similar provincial health care costs

recovery legislation.

[. . .]

239. The plaintiff and the ORA Subclass Class Members bring this action

against the Defendants pursuant to the provisions of statutes including, but

not limited to:

(a) , the ORA, section 8 of the Health Care Costs Recovery

Act, SBC 2008, c27,

(b) the Opioid Damages and Health Care Costs Recovery Act,

SA 2019, c. O-5;

(c) the Opioid Damages and Health Care Costs Recovery Act,

2019, SO 2019, c. 17,

(d) the Opioid Damages and Health Care Costs Recovery Act,

SNL 2019, c. O-62;

(e) the Opioid Damages and Health-care Costs Recovery Act,

SNS 2020, c.4;

British Columbia v. Apotex Inc.

(f) and parallel legislation in other provinces and territories, to

Page 79

recover, on an aggregate basis or otherwise:

(i) the present value of the total expenditure by

the Class Members for health care benefits

provided for their respective residents resulting

from Opioid use, side effects and/or addiction;

and

(ii) the present value of the estimated total

expenditure by the Class Members for health

care benefits that could reasonably be expected

to be provided for their respective residents

resulting from Opioid use, side effects and/or

addiction.

240. Further, and in the alternative, the plaintiff and the Class bring this action

against the Defendants pursuant to section 8 of the Health Care Costs

Recovery Act, SBC 2008, c. 27 and parallel provincial and territorial health

care costs recovery legislation.

[. . .]

245. The Health Care Costs Recovery Act, SBC 2008, c. 27 provides that the

plaintiff may recover the past and future health care costs resulting directly or

indirectly from the negligence or wrongful act or omission of any of the

defendants which injures any beneficiary of the British Columbia Medicare

Plan. Similar provisions are in place in other provinces.

[246] The plaintiff submits that if the ORA does not apply, the plaintiff and other

Class Members have a direct cause of action under s. 8 of the HCCRA and “other

equivalent legislation.” Specifically, the plaintiff and the proposed Class Members

rely, in the alternative, on the HCCRA and parallel provincial healthcare costs

recovery legislation and their independent right to recover pursuant to those

statutes. A number of causes of action are capable of supporting the plaintiff’s

claims pursuant to the HCCRA, including negligent design, failure to warn, and a

breach of s. 52 of the Competition Act.

[247] The defendants submit the plaintiff’s proposed claim for recovery under the

HCCRA is barred by s. 24(3)(b) of the HCCRA. That provision provides:

24 … (3) In relation to health care services that are provided or are to be

provided to a beneficiary, this Act does not apply …

(b) in relation to personal injury or death arising out of an opioid-

related wrong as defined in the Opioid Damages and Health Care

Costs Recovery Act,

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[Emphasis added.]

[248] The defendants submit that both the wording and legislative history of this

section indicate the legislature’s intention to ground the recovery of opioid-related

expenses in the ORA as opposed to the HCCRA. They argue that if the plaintiff ever

had a claim against the defendants under the HCCRA, that claim ceased to exist

when the ORA was enacted. The defendants submit that the plaintiff therefore

cannot claim under both statutes.

[249] In response, the plaintiff emphasizes that the HCCRA claim is an alternative

claim that will only come into play if the ORA claim fails. It is not seeking to recover

under both statutes.

[250] As the defendants note, the Legislature has set out a clear intention to avoid

the plaintiff from ultimately recovering the same health care costs under both the

more general HCCRA and the more specific ORA. The HCCRA does not apply in

relation to “personal injury or death” arising out of an opioid-related wrong as defined

in the ORA—which is the main thrust of the plaintiff’s action. With the possible

exception of the stand-alone claims in public nuisance, unjust enrichment, and

breach of ss. 36 and 52 of the Competition Act, the plaintiff’s action is premised

substantially on allegations that the defendants have committed certain opioid-

related wrongs and created an Opioid Epidemic that has caused harm to the public.

[251] While the argument is formulated in different ways pursuant to R. 9-5(1), the

main submission of the defendants appears to be that the HCCRA claims are

“unnecessary” under R. 9-5(1)(b). In Moore v. British Columbia (1988), 23 B.C.L.R.

(2d) 105 (C.A.), leave to appeal ref’d [1988] S.C.C.A. No. 157, the Court of Appeal

upheld the striking of a claim for damages under the Charter of Rights and

Freedoms when the plaintiff had a human rights claim available to her. In doing so,

the Court stated as follows:

[39]

I am unable to accept the appellant's submission that the Act does not

afford the quality of relief to which she is entitled. A finding that s. 8(1) has

been breached is, in essence, not much different from a declaration that her

rights under s. 2(a) of s. 15(1) of the Charter have been breached. What is

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Page 81

asserted is a breach of a basic human right. Human rights are protected by

both the Human Rights Act and the Charter. There is no need to have access

to both in this case. Applying the views expressed in McKinney, (supra), the

appellant should resort first to her rights under the provincial legislation,

which has direct application in her case. Under that Act she can obtain all of

the "appropriate" relief which would be granted under s. 24(1) of the Charter.

The appellant says she wants damages. If these were assessed under s.

24(1) they would, in my view, compensate her for loss of pay, expenses, and

consequential loss of the nature available under s. 17(2) of the Act.

[40]

Thus I conclude that it was open to Mr. Justice Lander to hold the

cause of action of the appellant to be "unnecessary because an effective

remedy is available under the Human Rights Act". The judge was, therefore,

entitled to exercise his discretion under Rule 19(24)(b) in striking out the

plaintiffs claims.

[252] Nevertheless, the Court of Appeal in Doyle Construction Co. v. Carling

O'Keefe Breweries of Canada Ltd. (1988), 27 B.C.L.R. (2d) 81, 5 W.W.R. 677 (C.A.),

encouraged some restraint in striking alternative claims on the basis of them being

unnecessary. In that case, the Court held at 86 that “a legally correct plea ought not

to be struck out under the word ‘unnecessary’ unless it will prejudice, embarrass or

delay the trial of the action.”

[253] Similarly, in Citizens for Foreign Aid Reform Inc. v. Canadian Jewish

Congress, [1999] B.C.J. No. 2160 (S.C.) at para. 47, Justice Romilly quoted Lutz v.

Canadian Puget Sound Lumber and Timber Co. (1920), 28 B.C.R. 39 (C.A.) in

support of the proposition that “a pleading that is superfluous will not be struck out if

it is not necessarily unnecessary or otherwise objectionable.”

[254] While there is a constitutional challenge outstanding in this proceeding, the

challenge relates only to the validity of s. 11 of the ORA which purports to authorize

the plaintiff to bring an action on behalf of a class consisting of other entities,

including the federal and other provincial governments. Hence, the constitutional

challenge will not result in the striking down of the ORA thereby nullifying its

application.

[255] To be sure, the defendants advance many arguments as to why the plaintiff’s

ORA-based claims cannot succeed. If the plaintiff is unable to prove the application

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of the ORA, it is theoretically possible that the plaintiff may attempt to have resort to

the HCCRA as an alternative remedy.

[256] Hence, assuming the various claims are valid for the reasons set out herein,

the plaintiff’s HCCRA claim does advance claims known in law which may be found

to apply if the alleged harm does not result from personal injury or death arising out

of an opioid-related wrong pursuant to the ORA. Therefore, I cannot find that the

HCCRA claims are bound to fail pursuant to R. 9-5(1)(a).

[257] Nevertheless, the situation here differs in that s. 24(3)(b) of the HCCRA

operates as a bar to recovery for personal injury or death arising out of an opioid-

related wrong as defined in the ORA. The two health care costs recovery

enactments are very similar, with the ORA being the more specific statute.

[258] It appears from s. 24(3) of the HCCRA, and the exclusion of claims under

certain other statutes, that the HCCRA is meant to operate where no other statutory

right to recover exists. The thrust of the plaintiff’s claims in the FANCC is in relation

to the Opioid Epidemic and to opioid-related wrongs as defined in the ORA. In its

very brief submissions on this point, the plaintiff has not outlined any circumstances

where recovery could be permitted under the HCCRA but disallowed under the

ORA.

[259] I am mindful that this proceeding is already complicated with numerous

causes of action in various forms, many of which rely upon the ORA for their

operation.

[260] More significantly, the plaintiff’s action is framed purely on an aggregate level

in relation to a population of people who suffered harm as a result of an opioid-

related wrong. Section 2(4) of the ORA allows the government to recover the cost of

opioid-related health care benefits either (a) for particular individual insured persons,

or (b) on an aggregate basis for a population of insured persons. Where recovery is

claimed on an aggregate basis, s. 3 of the ORA provides for certain presumptions to

facilitate the plaintiff proving its case.

British Columbia v. Apotex Inc.

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[261] On this point, on the second reading of the ORA in the Legislature on October

2, 2018, the Hon. David Eby, Q.C., the Attorney General of BC, commented on the

nature of the ORA as follows:

Recovery is permitted in respect of opioid-related disease, injury or illness.

The bill will permit government to proceed by way of an aggregate action,

which does not require government to meet the burden to establish the extent

and magnitude of damages suffered by each insured person individually. It

will not be necessary to identify particular individuals or to prove the cause of

opioid-related disease, injury or illness for any particular individual. Evidence

will not be required to be presented by government on an individual basis.

This bill will allow government to accurately prove its claim, relying on

population-based evidence, and enable litigation to proceed as efficiently as

possible while preserving fairness. Recovery on an aggregate basis will be

facilitated by establishing presumptions with respect to use and causation

and shifting the burden to the defendants to prove their activities did not

increase use and their products did not cause harm.

The act will allow statistical information derived from epidemiological,

sociological and other relevant studies to be admissible to establish causation

and quantify damages.

(British Columbia, Legislative Assembly, Hansard 41st Parl., 3rd Sess., No.

152 (2 October 2018) at 5390.)

[262] The Hon. Mitzi Dean, Minister of Children and Family Development in BC,

added the following comment:

Instead of bringing forward each individual expense record for British

Columbians to quantify overall expenses, the legislation will allow

government expenditures to be proven by reference to population, based on

evidence, statistical data and budget information, to get a big-picture view of

the health care costs.

(British Columbia, Legislative Assembly, Hansard 41st Parl., 3rd Sess., No.

152 (2 October 2018) at 5397, respectively)

[263] The aggregate claims permitted by s. 2(4)(b) of the ORA are not permitted

under the HCCRA. Rather, ss. 16 and 17 of the HCCRA require proof of the health

care services provided to each relevant individual insured person. If the plaintiff

wished to advance its HCCRA claims, it would need to identify individual persons as

the beneficiaries who suffered a personal injury in s. 8 that led to costs being

British Columbia v. Apotex Inc.

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incurred by the plaintiff (referred to as the “MSP beneficiaries” in Translink v. British

Columbia, 2013 BCSC 1602 at paras. 3 and 4).

[264] The plaintiff has not identified any of the potential thousands or tens of

thousands of individual persons who received health care benefits post-1996 as a

result of the Opioid Epidemic. Permitting the addition of these numerous

individualized healthcare benefit claims in the present FANCC would result in an

unwieldy proceeding that could well prejudice and delay the trial of the action.

[265] The plaintiff has not advanced any useful purpose to be served by advancing

an alternative claim under the HCCRA when all such claims can be advanced under

the more specific ORA, which provides for a similar scheme of recovery with

additional mechanisms and presumptions to establish causation, quantify damages,

and facilitate aggregate claims.

[266] In all the circumstances, and specifically having regard to s. 24(3)(b) of the

HCCRA, the nature of the pleadings which focus on aggregate recovery

mechanisms of the ORA, and the relatively unique nature of these proceedings, I

would adopt a pragmatic approach and make some attempt at focussing this already

complex proceeding.

[267] I have considered the possibility of an amendment, but I find that amendment

would not cure the negative effects resulting from the inclusion of any HCCRA-

based individualized claims in the FANCC. Overall, the ORA is by far the preferable

analytical framework to assess the plaintiff’s many aggregate claims.

[268] I would therefore make an order pursuant to R. 9-5(1)(b) to strike the

plaintiff’s claims based on the HCCRA as unnecessary.

CLAIMS UNDER OTHER HEALTH CARE RECOVERY STATUTES

[269] The defendants object to the plaintiff relying on other parallel provincial

healthcare costs recovery legislation in the alternative and the government’s

independent right to recover pursuant to those statutes.

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[270] As noted above, para. 239 of the FANCC references various provincial

statutes that enable other provinces to opt into the present proceeding. I do not read

this paragraph as providing for a further alternative basis for recovery. Rather, these

provisions appear merely to provide the necessary legislative bases for other

provinces to join the present proceeding as a Class Member.

[271] I would not strike such references from the FANCC to the extent they might

relate to recovery by Class Members in relation to the plaintiff’s existing common

law, statutory, and ORA-based claims.

CONCLUSION ON APPLICATIONS TO STRIKE / AMEND

[272] In accordance with the reasons above, aside from the application to strike the

HCCRA-based claims, I would dismiss the various motions to strike and grant the

plaintiff’s application to amend its pleading, substantially in accordance with the

FANCC.

[273] I find that the defendants’ many arguments fall short on several bases: they

fail to reflect the high threshold to strike the proposed claims; they gloss over the

possibility of an amendment to cure any flaws; they demand specificity beyond that

required under the Rules; and they inflate the requirements for the ORA-based

claims by suggesting the plaintiff is required to plead all the particulars of a free-

standing cause of action in its ORA-based claims that rely on the breach of a duty or

a statute which is then taken up as a cause of action by the ORA.

[274] While these reasons have primarily addressed the defendants’ arguments

under R. 9-5(1)(a), I cannot find fault with the FANCC under R. 9-5(1)(a), (b), (c) or

(d), except as noted above in relation to the HCCRA.

[275] To use the more specific language in R. 9-5(1)(b) and (c), I find no merit in

the defendants’ submissions that the plaintiff’s claims are scandalous, frivolous,

vexatious, embarrassing, or prejudicial. The pleadings provide for arguable claims,

state the issues in an intelligent form, include the necessary material facts, and allow

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Page 86

the opposing parties the case they have to meet. Nothing in the affidavit evidence

filed by the defendants dissuades me from this conclusion.

[276] Nor would I find that the plaintiff’s claims amount to an abuse of process

within the meaning of R. 9-5(1)(d). Nothing in the claims as formulated violates

principles of judicial economy, consistency, finality, and the integrity of the

administration of justice.

[277] The Bristol-Myers Squibb Canada and Bristol-Myers Squibb Company

defendants (collectively, the “BMS Defendants”) filed affidavit evidence to the effect

that BMS Canada manufactured and sold immediate-release and immediate-release

combination opioid medicines. The BMS Defendants maintain that they never

engaged in the conduct alleged in the FANCC and that the claims against them

should be struck under R. 9-5(1)(a), (b), and (d).

[278] In my view, this is a matter for trial. Moreover, the allegations against the

Manufacturer Defendants appear to be wider than mere improper manufacturing of

and misrepresentations concerning controlled-release products. For instance, the

FANCC alleges in para. 6 that the Manufacturer Defendants knowingly marketed

and promoted opioids in Canada as less addictive and for conditions the defendants

knew the drugs were not effective in treating. Further still, subpara. 18(g) of the

FANCC alleges that the BMS defendants obtained the rights to market opioid drugs

developed by the Endo Defendants. On my reading of the FANCC and the affidavit

evidence, I cannot find that the plaintiff’s various claims against the BMS Defendants

fall afoul of any of the branches of R. 9-5(1), and I would not accede to their

submissions on this point.

[279] Aside from the HCCRA-based claims, if I had been of the view that any of the

plaintiff’s claims in the FANCC were deficient, I would have been inclined to exercise

my discretion to grant the plaintiff leave to further amend its claims to attempt to

remedy any error.

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[280] Such an approach would be consistent with that under s. 4(12)(a) of the CPA

that, at certification, the court must consider the pleadings as stated or as they could

be amended: International Taoist Church of Canada v. Ching Chung Taoist

Association of Hong Kong Limited, 2011 BCCA 149 at para. 28; James at paras. 60–

63. Given my conclusions above as to the sufficiency of the pleadings, I find it

unnecessary to further consider whether the pleadings can be preserved with an

amendment.

APPLICATIONS TO ADD NORAMCO AND OTHER PARTIES

a) Overview

[281] The defendants Endo Ventures Ltd., Ethypharm Inc., Roxane Laboratories

Inc., Boehringer Ingelheim (Canada) Ltd./Boehringer Ingelheim (Canada) Ltee., and

Teva Canada Innovation GP – SENC were added as defendants by order entered

March 26, 2021. The addition of these defendants was not opposed. The plaintiff

has discontinued its action against BGP.

[282] The plaintiff’s application to add Noramco as a defendant is strongly opposed

by Noramco, who supplies APIs to companies that manufacture finished drug

products. It does not manufacture drug products themselves.

[283] Notwithstanding this, the plaintiff includes Noramco as a Manufacturer

Defendant. It argues that it is a “manufacturer” for the purposes of s. 1 of the ORA,

which defines “manufacturer” as follows:

“manufacturer” means a person who manufactures or has manufactured an

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

(a) causes, directly or indirectly, through arrangements with

contractors, subcontractors, licensees, franchisees or others,

the manufacture of an opioid product,

(b) for any fiscal year of the person, derives at least 10% of

revenues, determined on a consolidated basis in accordance

with generally accepted accounting principles in Canada, from

the manufacture or promotion of opioid products by that

person or by other persons,

(c) engages in or causes, directly or indirectly, other persons

to engage in promoting an opioid product, or

British Columbia v. Apotex Inc.

(d) is a trade association primarily engaged in

Page 88

(i)advancing the interests of manufacturers,

(ii)promoting an opioid product, or

(iii)causing, directly or indirectly, other persons to engage

in promoting an opioid product;

[Emphasis added.]

b) Applicable Legal Principles

[284] Pursuant to R. 6-2(7), leave is required to add parties to a proceeding:

Adding, removing or substituting parties by order

(7) At any stage of a proceeding, the court, on application by any person,

may, subject to subrules (9) and (10),

[. . .]

(c) order that a person be added as a party if there may exist,

between the person and any party to the proceeding, a

question or issue relating to or connected with

(i) any relief claimed in the proceeding, or

(ii) the subject matter of the proceeding

that, in the opinion of the court, it would be just

and convenient to determine as between the

person and that party.

[285] In Smithe Residences Ltd. v. 4 Corners Properties Ltd., 2020 BCCA 227

[Smithe Residences] the Court of Appeal reiterated the test under R. 6-2(7)(c) and

applicable principles as follows:

[49] The judge may order a person be added as a party if two conditions are

met: first, there may exist between the person and any party to the

proceeding a question or issue relating to or connected with (i) any relief

claimed in the proceeding or (ii) the subject matter of the proceeding; and

second, that in the opinion of the court, it would be just and convenient to

determine that question or issue.

[50] As this Court stated in Neilson Architects, the threshold to meet the first

condition is a low one; the party seeking to join the new person must

establish “simply that there is a real issue between them that is not frivolous,

or that the plaintiff has a possible cause of action against the proposed party”

(at para. 45).

[51] As to the second condition, though determining the interests of justice

and convenience is at the judge’s discretion and should be assessed with

“flexibility” (Cementation at para. 8), the jurisprudence has provided guiding

factors to consider in the specific circumstances of adding a party after a

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limitation period has expired. As the judge highlighted, these include the

extent of delay in bringing the application to add, reasons for it, any

explanation put forward, degree of prejudice caused by the delay, and the

extent of the connection between the claims (Letvad at para. 29, citing Teal

Cedar; Neilson Architects at para. 47).

[286] In Madadi v. Nichols, 2021 BCCA 10 [Madadi], the Court followed up with the

following discussion of the test in R. 6-2(7)(c):

[22]

Rule 6-2(7)(c) is broader and therefore more commonly relied upon.

A plaintiff applicant must establish that there is a question or issue between

the plaintiff and the proposed defendant that relates to or is connected with

the relief, remedy, or subject matter of the proceeding. This threshold is low.

It is generally expressed as establishing a real issue between the parties that

is not frivolous, or that the plaintiff has a possible cause of action against the

proposed defendant: The Owners, Strata Plan No. VIS3578 v. John A.

Neilson Architects Inc., 2010 BCCA 329 at para. 45 [Neilson

Architects]; Strata Plan LMS 1816 v. Acastina Investments Ltd., 2004 BCCA

578 [Acastina]; and MacMillan Bloedel Ltd. v. Binstead et al. (1981), 58

B.C.L.R. 173 (C.A.) [Binstead]. I would define a frivolous issue as an issue

that does not go to establishing the cause of action, does not advance a

claim known to law, or serves no useful purpose and would be a waste of the

court’s time and public resources. This is similar to the considerations for

determining whether a claim should be struck as “unnecessary, scandalous,

frivolous or vexatious” under Rule 9-5(1)(b): see, for example, Nevsun

Resources Ltd. v. Araya, 2020 SCC 5 at paras. 65, citing in Willow v. Chong,

2013 BCSC 1083 at para. 20.

[23]

This threshold requirement is usually met solely on the basis of the

proposed pleadings, but the parties may provide affidavit evidence

addressing it. If evidence is provided, the court is limited to examining it only

to the extent necessary to determine if the required issue between the parties

exists; it is not to weigh the evidence and assess whether the plaintiff could

prove the allegations: Neilson Architects at para. 45,

citing Acastina and Binstead. Whether or not evidence is provided, it is

necessary for the court to examine the pleadings in order to determine

whether the plaintiff has a possible cause of action against the proposed

defendants. The pleadings must set out material facts sufficient to establish a

real and not frivolous issue between the plaintiff and the proposed

defendants: Neilson Architects at paras. 60, 62, and 75.

[24]

If this requirement is met, the court must next determine whether it

would be just and convenient to decide the issue between the parties in the

proceeding. It is in relation to this issue that evidence is more commonly

provided. This is a discretionary decision, which discretion must be exercised

judicially, and in accordance with the evidence adduced and the guidelines

established in the authorities. In Letvad, this court adopted a list of factors to

be considered from Teal Cedar Products (1977) Ltd. v. Dale Intermediaries

Ltd. (1996), 19 B.C.L.R. (3d) 282 (C.A), a decision that addressed the

amendment of pleadings after the expiry of a limitation period. These factors

include the extent of the delay, the reasons and any explanation for the delay,

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Page 90

the expiry of a limitation period, the degree of prejudice caused by the delay,

and the extent of the connection, if any, between the existing claims and the

proposed new cause of action: Teal Cedar at para. 67; Letvad at para. 29;

see also Chouinard v. O’Connor, 2011 BCCA 161 at para. 21. In the context

of adding parties, the last Letvad factor may be more accurately described as

the extent of the connection, if any, between the existing claim and the

parties to be added.

[25]

The existence of a limitation defence is an important factor, as such

a defence is extinguished if the proposed defendant is added: Limitation Act,

R.S.B.C. 1996, c. 266, s. 4(1)(d), repealed and replaced with Limitation Act,

S.B.C. 2012, c. 13, s. 22(1)(d); and Anonson v. North Vancouver (City), 2017

BCCA 205 at para. 13. However, this is not determinative. In Neilson

Architects, this court adopted the following approach to considering a

limitation defence (at para. 47):

If it is clear there is an accrued limitation defence, the question

is whether it will nevertheless be just and convenient to add

the party, notwithstanding it will lose that defence. The answer

to that question will emerge from consideration of the factors

set out in Letvad.

[287] As noted above, the court may consider evidence on the first threshold

requirement of an application to add parties. However, if evidence is provided, the

court is not to weigh the evidence but is limited to examining it only to the extent

necessary to determine if the required issue between the parties exists. Evidence is

more commonly considered on the second aspect of the test, the discretionary

decision of whether it would be just and convenient to decide the issue between the

parties in the proceeding. Still, a party is not required to lead evidence to support an

application to add parties: Mayer v. Mayer, 2012 BCCA 77 at paras. 215–216.

[288] The plaintiff’s position is that while Noramco does not make drug products, it

is a manufacturer because it causes the manufacturing of an opioid product through

arrangements with Janssen and Johnson & Johnson. In addition, it argues Noramco

is a manufacturer because it derives at least 10% of its revenues from the

manufacture or promotion of opioid products by others.

[289] Counsel for Noramco submits that Noramco stands in a different position from

the other defendants. Noramco submits that it is not a manufacturer; it is the only

supplier of inputs of any kind that go into the manufacture of opioid products. Hence,

whatever claims the plaintiff has against the other defendants, it does not have those

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claims against Noramco. I turn to assess Noramco’s argument under the relevant

framework.

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

[290] In addressing the threshold issue, the plaintiff points out that Noramco, a U.S.

corporation, was until 2016 a wholly-owned subsidiary of Johnson & Johnson, a

named defendant in this action. The plaintiff alleges in the FANCC that the

businesses of Janssen, Noramco, and Johnson & Johnson are “inextricably

interwoven” and that each was the agent of the other for the purposes of the

manufacture, marketing, and sale of opioids in Canada. The plaintiff in the FANCC

further alleges that Noramco engaged in the supply and manufacture of thebaine

in North America, which was then used to manufacture oxycodone. In fact, it

alleges that Noramco dominated the global market for thebaine. Given that

Canada must import all APIs, including thebaine, from countries such as

Australia, it is clear Noramco, through its Australian affiliate Tasmanian

Alkaloids, supplied and manufactured thebaine to opioid manufacturers, who

then used the APIs to manufacture opioid products in Canada. Noramco has

been named as a defendant in similar proceedings in the U.S. Based on these

facts, the plaintiff submits that Noramco is a “manufacturer” for the purposes of

opioid recovery legislation across Canada.

[291] For its part, Noramco notes that it does not have any operations, property, or

employees in Canada. It intends to bring a jurisdictional challenge at the certification

hearing to the relief sought by the plaintiff. While it acknowledges being a subsidiary

of Johnson & Johnson prior to July of 2016, Noramco says it has had no corporate

relationship with Johnson & Johnson after that time. Even when it was a subsidiary,

it maintains that it was entirely independent from Johnson & Johnson and its other

affiliated companies.

[292] Noramco submits that the pleadings do not establish a question or issue

between the plaintiff and Noramco relating to, or connected with, the relief claimed

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or the subject matter of the proceeding. Noramco submits that the FANCC does not

establish that it was a manufacturer of opioid products or an agent of Johnson &

Johnson or Janssen, nor that it owed a duty of care. Noramco also submits that it

has been inappropriately lumped together with the other Manufacturer Defendants.

[293] As noted above, the threshold on the first condition of the test under R. 6-

2(7)(c) is a relatively low one: Smithe Residences at para. 50; Madadi at para. 29.

[294] In addressing this question, the plaintiff has pointed to certain factual findings

made in the opioid litigation in Oklahoma. I find that I need not resort to those

findings here.

[295] On the first condition, the pleading against Noramco is fundamentally that, in

its role as the largest API supplier in North America and as part of its common

design with its related entities to develop, manufacture, market and sell opioids in

Canada, it owed the plaintiff and end users of opioids a duty of care, which was

breached. The plaintiff also alleges in the FANCC that Noramco and other

defendants are liable for public nuisance.

[296] I find that there is 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. The fact that a manufacturer is interposed between the plaintiff and a

supplier, Noramco, does not insulate the supplier from liability: Furlan v. Shell Oil

Co., 2000 BCCA 404 at para. 21, leave to appeal ref’d [2000] S.C.C.A. No. 476

(S.C.C.); Gariepy et al. v. Shell Oil Co. (2000), 51 O.R. (3d) 181 (S.C.) at para. 49.

[297] I have considered Noramco’s arguments that it stands in a different position,

but the FANCC makes the case that Noramco comes within the statutory definition

of manufacturer under the ORA. While APIs are not “opioid products” as defined in

s. 1 of the ORA, the specific wording of s. 2(1) of the ORA is that “the government

has a direct and distinct action against a manufacturer or wholesaler to recover the

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

An “opioid-related wrong” includes a breach of a common law or statutory duty or

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obligation by a manufacturer as defined in the ORA. In other words, an argument

can be made that one does not have to manufacture opioid products in the ordinary

sense to be liable under the ORA.

[298] I have also considered the affidavit evidence tendered by Noramco,

particularly on the issue of whether there exists a real issue between the parties.

However, nothing in that evidence diminishes my overall conclusion that the plaintiff

has met the burden on the threshold aspect of the test.

[299] The other arguments raised by Noramco and the other defendants fail to

convince me that there is not a question or issue between the plaintiff and Noramco

that relates to or is connected with the relief, remedy, or subject matter of the

present proceedings.

ii) Just and Convenient

[300] With respect to the length, reason and explanation for the delay, the plaintiff,

citing Somerville et al. v. Piazza et al., 2006 BCSC 807 at para. 29, says that it is

reasonable for counsel to wait until learning of some real potential for liability on the

part of proposed defendants before taking steps to add them. Further, the plaintiff

says that now is a convenient time to add the Proposed Defendants, in conjunction

with applying to amend pleadings and before scheduling the certification hearing. I

accept this submission, and I find that Noramco’s concern over the delay until

September of 2020—when the application to add Noramco was filed—is diminished

here because this proceeding remains in its early stages.

[301] In addition, I find that there is some merit in the plaintiff’s argument that there

is a connection between the existing claims and the proposed new action with

Noramco. With respect to the new allegation that Noramco supplied APIs that were

imported to Canada and later used to manufacture opioid products, I recognize the

distinction between supplier and manufacturer that Noramco seeks to draw. Looking

at the supply chain, there is an argument to be made that Noramco stands in a

different position than other Manufacturer Defendants because it stands further up

the supply chain by producing key opioid APIs that go into many of the opioid

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products. Whether Noramco manufactured an “opioid product” is disputed, and the

nuances of the definition of “opioid product” in the ORA will undoubtedly come into

play. Noramco argues that, given its unique role as a mere supplier of APIs, it did

not owe a duty of care to the insured persons referred to in the ORA, as is alleged

against the other Manufacturer Defendants.

[302] Nevertheless, I find that the factual allegation against Noramco as a

producer/manufacturer does not substantially depart from the existing allegations

against the other Manufacturer Defendants. As well, Noramco is alleged to have

acted pursuant to a common design with Janssen and Johnson & Johnson to

develop, test, manufacture, seek regulatory authorization, market, sell, and conduct

post-market surveillance of opioids in Canada. Moreover, while Noramco disputes

the extent of its past relationship with other defendants and submits that it was not in

an agency relationship with any, both the Janssen and Johnson & Johnson

defendants have been parent companies of Noramco in the past.

[303] I have considered other arguments raised by Noramco impacting delay and

prejudice. For instance, Noramco submits that this Court should also consider (1)

whether it is appropriate that the issues be tried together, and (2) whether the

proposed new claims will increase not only the number of parties but also the issues

and overall scope of litigation, thereby increasing cost and delay. I do not agree that

Noramco’s ostensibly unique position will add substantially to the cost and delay of

this admittedly already extensive proceeding, nor that Noramco’s opportunity to

separately try the issues raised in this proceeding tips the balance in its favour on

the just and convenient analysis.

[304] Finally, in relation to the degree of prejudice, this proceeding remains in its

early stages. The certification hearing is still far off, and most of the substantial

applications, such as the jurisdictional challenges (which Noramco also seeks to

make) and a constitutional challenge, have been deferred to the hearing. Other than

the present motions, no significant applications have been heard.

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[305] Noramco suggests it suffered prejudice by virtue of its absence at the

sequencing hearing and by being subjected to court orders that it never had the

opportunity to address. As sequencing was merely a procedural step in the nature of

trial management, I do not regard this factor as significantly prejudicial.

[306] As to the limitation period issue, the plaintiff submits that, if a limitation period

applies, which it disputes, such a defence is only one consideration under the broad

just and convenient test. Even if some of its claims against Noramco were out of

time, the plaintiff submits its ORA-based claims would be revived pursuant to s. 6 of

the ORA, which came into force on October 31, 2018 and states:

Limitation periods

6 (1) No action that is commenced by the government within 2 years after

the coming into force of this section for the recovery of the cost of health care

benefits, or for damages, alleged to have been caused or contributed to by an

opioid-related wrong, is barred under the Limitation Act.

(2) Any action described in subsection (1) of this section for damages alleged

to have been caused or contributed to by an opioid-related wrong is revived if

the action was dismissed before the coming into force of this section merely

because it was held by a court to be barred or extinguished by the Limitation

Act.

[307] The application to add Noramco was brought in September of 2020, prior to

the expiry of the two-year limitation period in the ORA on October 31, 2020.

Limitation periods were further suspended due to the COVID-19 pandemic:

Ministerial Order MO86/2020; Ministerial Order MO98/2020; Schedule 2 of the

COVID-19 Related Measures Act, S.B.C. 2020, c. 8; and COVID-19 (Limitation

Periods in Court Proceedings) Regulation, B.C. Reg. 199/2020. The suspension of

limitation periods ended on March 25, 2021, by Order in Council 655/2020. The end

result is that if the limitation period had not expired for ORA-based claims, as the

defendants have conceded, this aspect of the potential prejudice to Noramco is not a

consideration since the plaintiff could simply have brought a separate action against

Noramco if the application was refused: Strata Plan LMS 1899 v. A.C.G.

Developments et al., 2005 BCSC 776 at para. 26 [Strata Plan LMS 1899].

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[308] The situation may be different for non-ORA claims and claims under the

Competition Act, for which Noramco submits the two-year limitation period in s.

36(4)(a) is operative. The plaintiff submits that public nuisance is a continuing cause

of action that negates the application of a limitation period because a new cause of

action every time the nuisance is repeated: Joyce v. Manitoba, 2018 MBCA 80 at

para. 63. The plaintiff also indicates that the mixing of ORA and non-ORA claims,

and issues of discoverability, give rise to arguments about the applicability of

limitation periods across the various claims.

[309] Nevertheless, even if Noramco and any supporting defendants are correct as

to the application of a limitation period on the non-ORA claims, I would assess all the

circumstances underlying the decision to add Noramco with have regard to the

factors in Teal Cedar Products (1977) Ltd. V. Dale Intermediaries Ltd. (1996), 19

B.C.L.R. (3d) 282 (C.A.) at paras. 45, 67, as summarized in Strata Plan LMS 1899 at

paras. 24–25. Having done so, I would decline to exercise my discretion on the just

and convenient analysis to prevent the plaintiff from adding Noramco as a

defendant.

CONCLUSION

[310] To summarize,

1) The plaintiff’s application for leave to further amend its notice of civil claim is

granted consistent with the reasons above, the plaintiff’s submissions at the

hearing of its application to amend, and in any other respects with the

consent of the parties.

2) The plaintiff’s claims based on the HCCRA are struck as unnecessary under

R. 9-5(1)(b).

3) Subject to (2) above, the defendants’ motions to strike the various claims and

the reference to common design in the FANCC are all dismissed.

4) The plaintiff’s application to add Noramco Inc. as a defendant is granted.

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[311] I wish to express my appreciation to all counsel for their able assistance in

this matter.

“Brundrett J.”