When Governments Write The Rules To Sue

It says after five days in the BC Court of Appeal with 45 lawyers, the certification of a class action by the province of BC over opioid treatment costs upheld.

What's happening here?

So this all started a number of years ago in B.C., and it's an effort by the province of British Columbia and other provinces and the federal government, indeed, to try to collect money from various companies involved with opioid marketing, sales, and distribution to pay for the costs incurred by government companies for treating people with issues that have been caused by that.

And the core of it is a claim that the manufacturers of opioids marketed and promoted them when they were aware, marketed and promoted them claiming they were less addictive when they knew that that wasn't the case and also alleging that the drugs were not appropriate or effective for treating many of the things they were being prescribed for.

And in particular, it appears the claim is premised on An allegation that they would be perhaps appropriate for an acute pain like you're recovering from surgery, but not the appropriate treatment necessarily for your sore back, for example.

And so the claim itself is an interesting one.

And for one of the reasons it's interesting is that British Columbia passed legislation allowing them to sue, which is sort of like writing your own rules and then engaging them to try to, in the court case, not a lot of plaintiffs in court cases get to write all of the rules surrounding their litigation and then engage in the litigation.

But that's what's going on here.

We have in BC an act called the Opioid Damages and Healthcare Cost Recovery Act.

And it's designed to make it easier for the province to sue all of the various manufacturers and generic manufacturers and distributors and so on.

It does a whole bunch of things.

Like, for example, they've waived the Limitation Act for themselves, right? That's sure convenient if you're a plaintiff.

And they've also set out in that legislation rules about how damages can be calculated, specifying that the province can collect sort of aggravate damages based on things done to a variety of other people.

So they've written a rule book kind of favoring themselves in bringing this claim, which is, I suppose, one thing listeners should reflect upon would be sort of the inherent fairness of writing your own rules and using them to litigate.

But that's what's going on here.

And then in addition to that interesting legal premise, the province of British Columbia is also engaging in a class action, which is interesting.

You don't see the government often trying to be a class member.

And the proposed class would be like British Columbia, all the other provinces, and the federal government, right? So the province of British Columbia is bringing a class action where they're the plaintiff premised on the legislation that they passed to allow themselves to do this.

So really interesting just in terms of the broad fairness questions.

But on the other hand, this is something that, for example, has occurred already in the United States in a different format there.

And there was not too long ago a large settlement.

I think it was some $50 billion reached between various state and local governments suing their pharmaceutical and other manufacturers.

So they've got this big chunk of change there in the United States.

And this is, I guess, the Canadian effort to Get some of that money from the drug companies as well.

Now, as we talked about before, the battle in class action cases often has been focused on the issue of certification, like the issue of can this be a class action? And it is heavily litigated by defendants trying to avoid that because in many cases, if you can stop the class action, you've got yourself a procedural advantage of every person who's, you know, coffee maker broke has to sue you individually.