Sanis Health Inc. v. British Columbia

Sanis Health Inc. v. British Columbia
Collection
Supreme Court Judgments
Date
2024-11-29
Neutral citation
2024 SCC 40
Case number
40864
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Martin, Sheilah; Kasirer, Nicholas; O’Bonsawin, Michelle; Moreau, Mary
On appeal from
British Columbia
Subjects
Constitutional law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Sanis Health Inc. v. British Columbia, 2024 SCC 40
Appeal Heard: May 23 and 24, 2024 Judgment Rendered: November 29, 2024 Docket: 40864
Between:
Sanis Health Inc., Shoppers Drug Mart Inc., Sandoz Canada Inc. and McKesson Canada Corporation Appellants
and
His Majesty The King in Right of the Province of British Columbia Respondent
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of New Brunswick, Attorney General of Manitoba, Attorney General of Prince Edward Island, Attorney General of Saskatchewan, Attorney General of Alberta, Attorney General of the Northwest Territories, Attorney General of the Yukon Territory, Groupe Jean Coutu (PJC) inc. and Pro Doc Ltd. Interveners
Coram: Wagner C.J. and Karakatsanis, Côté, Martin, Kasirer, O’Bonsawin and Moreau JJ.
Reasons for Judgment: (paras. 1 to 110)
Karakatsanis J. (Wagner C.J. and Martin, Kasirer, O’Bonsawin and Moreau JJ. concurring)
Dissenting Reasons: (paras. 111 to 208)
Côté J.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Sanis Health Inc., Shoppers Drug Mart Inc.,
Sandoz Canada Inc. and McKesson Canada Corporation Appellants
v.
His Majesty The King in Right of the Province of British Columbia Respondent
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of Nova Scotia,
Attorney General of New Brunswick,
Attorney General of Manitoba,
Attorney General of Prince Edward Island,
Attorney General of Saskatchewan,
Attorney General of Alberta,
Attorney General of the Northwest Territories,
Attorney General of the Yukon Territory,
Groupe Jean Coutu (PJC) inc. and Pro Doc Ltd. Interveners
Indexed as: Sanis Health Inc. v. British Columbia
2024 SCC 40
File No.: 40864.
2024: May 23, 24; 2024: November 29.
Present: Wagner C.J. and Karakatsanis, Côté, Martin, Kasirer, O’Bonsawin and Moreau JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Division of powers — Extraterritoriality — Limitation on provincial legislation — British Columbia applying for certification of class proceeding against manufacturers, marketers and distributors of opioid products for recovery of health care expenditures incurred in treating individuals exposed to those products — Provincial legislature adopting legislation that includes provision permitting British Columbia to act as representative plaintiff and to include other governments in Canada in proposed class unless they opt out of class proceeding pursuant to terms of certification order — Defendants challenging constitutional validity of provision — Whether provision ultra vires legislative assembly of British Columbia — Constitution Act, 1867, s. 92(13), (14) — Opioid Damages and Health Care Costs Recovery Act, S.B.C. 2018, c. 35, s. 11.
British Columbia commenced an action in the province’s Supreme Court alleging that manufacturers, marketers, and distributors of opioid products committed common law torts and breaches of the Competition Act. The pleadings claim every province and territory in Canada has experienced high numbers of opioid-related addictions, illnesses and deaths due to the opioid epidemic and the defendants contributed to the epidemic by falsely marketing their products as being less addictive and less prone to abuse, tolerance, and withdrawal than other pain medications. British Columbia sought certification of the action as a class proceeding with itself as the representative plaintiff and a class consisting of all federal, provincial, and territorial governments and agencies that paid healthcare, pharmaceutical and treatment costs related to opioids. A few months after the proceeding was commenced, the legislature of British Columbia enacted the Opioid Damages and Health Care Costs Recovery Act (“ORA”) to create a direct, statutory cause of action in the litigation. Section 11 of the ORA authorizes British Columbia to bring an action on behalf of the class named in its proceeding but permits a class member to opt out of the proceeding under s. 16 of the province’s Class Proceedings Act, in the manner specified in the order certifying the class proceeding. British Columbia changed its notice of civil claim to incorporate s. 11 of the ORA into its pleadings.
Several of the defendants, pharmaceutical companies which manufacture, market, and distribute opioid products throughout Canada, applied for an order striking s. 11 of the ORA as ultra vires the legislature of British Columbia and of no force and effect pursuant to s. 52 of the Constitution Act, 1982. They argued it does not respect constitutional territorial limits on provincial legislative competence and it violates Canada’s constitutional structure by undermining the sovereignty of other governments in Canada. The British Columbia Supreme Court dismissed the applications. It held that s. 11 of the ORA is a procedural mechanism to facilitate a process in which the substantive claims of extraterritorial governments may be litigated and therefore falls within s. 92(14) of the Constitution Act, 1867, under the province’s authority to legislate regarding the administration of justice in the province. The applications judge held that s. 11 respects the territorial limits of the Constitution Act, 1867 since it only affects other governments once they consent to participate in the proceeding by either opting in or by declining to opt out. The Court of Appeal dismissed the defendants’ appeal.
Held (Côté J. dissenting): The appeal should be dismissed.
Per Wagner C.J. and Karakatsanis, Martin, Kasirer, O’Bonsawin and Moreau JJ.: Section 11 of the ORA is intra vires the province of British Columbia. The courts below were correct in finding that the pith and substance of s. 11 is the creation of a procedural mechanism for the application of the ORA to the existing opioid‑related proceeding. Section 11 does not deal with substantive rights, it is meaningfully connected to the province of British Columbia, and it respects the legislative sovereignty of other Canadian governments. It is properly classified under s. 92(14) of the Constitution Act, 1867, which grants the provinces the authority to legislate in relation to the administration of justice in the province. Under this head of power, provinces may enact laws and regulations pertaining to courts, rules of court and civil procedure. Section 11 presumptively authorizes British Columbia to act as a representative plaintiff on behalf of a class of other Canadian governments who choose to participate in this class proceeding.
The first stage of the framework set out in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, to determine the constitutional validity of legislation is to identify its pith and substance, that is, its main thrust or dominant or most important characteristic. Courts look at the law’s purpose and effects, examining both intrinsic and extrinsic evidence, and its legal and practical effects. The court will presume constitutionality, assuming that the legislature did not intend to exceed its authority, especially if the attorneys general of the jurisdictions affected by the law support its validity. The second stage of the framework determines whether the challenged legislation respects the territorial limits of provincial power found in both the opening words of s. 92 of the Constitution Act, 1867 and the language of the heads of power themselves, by determining whether the legislation has a meaningful connection to the province and respects the sovereignty of other provinces. A meaningful connection is tested by assessing the law’s connection to the enacting territory, to the subject matter of the law, and to those made subject to it.
The purpose of s. 11 of the ORA is to provide a procedural mechanism explaining how the rest of the ORA applies to British Columbia’s ongoing class proceeding. The term “the Crown” can refer to either a personification of the state or the physical, natural person of His Majesty the King. As a plaintiff in litigation to enforce a common law or statutory cause of action, a Crown typically acts in its capacity as a natural person. Thus, the Crown in right of British Columbia is a person capable of being a representative plaintiff under the Class Proceedings Act and foreign Crowns may sue in any court having jurisdiction in the particular matter. Nothing in British Columbia’s legislation prevents foreign Crowns from participating in a class action in British Columbia as a member of a class of persons. Section 11 of the ORA allows British Columbia to bring the class action at issue in the instant case under the Class Proceedings Act, which is a purely procedural statute. The text of s. 11 strongly indicates that its purpose is to provide a procedural mechanism tightly oriented around the continued efficacy of British Columbia’s class proceeding and the benefits which the ORA provide it. It also is clear from the entire context of the ORA, including its other provisions granting benefits to the proceeding, and from extrinsic evidence that the purpose of s. 11 of the ORA was not to create substantive rights for the Crown.
When an individual chooses to participate as a member in a class action, they necessarily give up some rights associated with litigation autonomy. This does not mean that s. 11 of the ORA is a substantive provision. A Crown’s choice to litigate in a different jurisdiction and to subject itself to the procedural rules of that forum does not violate any constitutional principle. As a participant in a class action, a Crown sacrifices aspects of its litigation autonomy but only if it chooses to do so through the opt‑in or opt‑out mechanism, a procedural right that has been recognized as a primary protection for class members in the class proceeding process. The choice to participate by opting in or not opting out represents an exercise of litigation autonomy, although one which involves sacrificing other elements of autonomy. Many aspects of litigation autonomy will remain available through procedural protections offered to non‑representative plaintiffs and under the court’s general supervisory jurisdiction. It does not violate the Crown’s autonomy for it to accept the consequences of its litigation choices and those consequences do not render s. 11 a provision dealing with substantive civil rights. The legal effects of s. 11 are to regulate how British Columbia’s class proceeding will continue in a modified form after the ORA came into force. The substantive rights of foreign Crowns remain unchanged. Section 11’s practical effects are to require foreign Crowns to choose whether they accept the procedural benefits and burdens of the class action after considering the consequences that this choice may have on their rights.
Section 11 of the ORA maintains a meaningful connection to British Columbia, both through the nature of the class action, and through the choice of the foreign Crowns to participate in the proceeding. It concerns a single action with commonality of defendants, issues and claims. British Columbia’s laws and courts do not reach outside the province unless the court is satisfied there are common issues between British Columbia and the class members and British Columbia is the proper venue for their resolution. Common issues establish a real and substantial connection for adjudicatory jurisdiction. Section 11 does not extend or change the court’s jurisdiction; it merely provides procedural rules once jurisdiction is established. It is a legitimate exercise of power for a province to set the procedural rules for proceedings within its jurisdiction.
Section 11 of the ORA respects the legislative sovereignty of other Canadian governments. When a Crown participates as a non‑representative plaintiff in a class action in another province, it will find itself subject to that province’s procedural rules governing class actions. However, each Crown’s causes of action occurred in their own jurisdiction and thus are subject to their own substantive law. Intergovernmental cooperation in Canada recognizes that legislative overlap is inevitable regarding national issues like the opioid epidemic and that governments may legislate for their own valid purposes in areas of overlap. In the instant case, nearly every provincial and territorial government in Canada and the federal government intends to participate in the class action. A court should exercise considerable caution before it finds that this cooperation is unconstitutional. Courts in the Canadian federation demand the same level of faith in one another’s judgments where jurisdiction has been properly exercised. These goals are met where governments cooperate to have their claims litigated efficiently in one action. Section 11 is an example of the important role that national class actions play, providing a mechanism to help multiple governments work toward the same goal. In an increasingly complex modern world, where governments assume greater regulatory roles in multifaceted areas overlapping jurisdictional boundaries, there is a greater need for cooperation between governments and between courts that cross those borders. National class actions, and in particular multi‑Crown class actions, ensure that justice is not blocked by provincial borders. The opioid epidemic is a stark example of a crisis that should attract cooperation and comity.
Per Côté J. (dissenting): The appeal should be allowed. Sections 11(1)(b) and (2) of the ORA are ultra vires the legislature of British Columbia and should be severed from the Act. The legislature of British Columbia cannot authorize the province to initiate a class action to claim health care costs incurred by a foreign province on an opt‑out basis, thereby compelling that province to take steps to avoid forced participation. Binding other governments to the class proceeding unless they take positive steps to opt out in accordance with the certification order means that British Columbia’s provincial courts get to dictate how other provinces and the federal government go about preserving their own rights. The legislature of a province does not have the authority to legislate in a manner that interferes with the rights and prerogatives of other provincial governments and the federal government. The pith and substance of s. 11 is to legislate in respect of property and civil rights outside the province, contrary to the territorial limitations imposed by s. 92 of the Constitution Act, 1867. The legislature of British Columbia is attempting to aggregate civil rights in other provinces into a single class action, but its powers are limited to property and civil rights “in the Province”. The effects of s. 11 are not merely incidental. Imposing membership in the class on other governments as the default position interferes with their litigation autonomy. These unconstitutional legal effects cannot be made valid by the fact that those foreign governments can choose to opt out of the class action. The pith and substance of s. 11 of the ORA does not respect the territorial limitations on the competence of the legislature of British Columbia. Though horizontal cooperation between the provincial and federal governments on common issues is a laudable goal, whatever method is used to achieve cooperation must be consistent with the structure of Canadian federalism. Section s. 11 of the ORA is not.
Where the validity of provincial legislation is challenged on the basis that it violates territorial limitations imposed on a provincial legislature, the assessment of its validity must be carried out in accordance with the framework established in Imperial Tobacco. The first step is to determine the pith and substance of the impugned legislation, which requires finding its essential character or dominant feature having regard to its purpose and effect. Section 11 of the ORA engages and ultimately affects substantive rights held by foreign governments far beyond the procedural advantages of class proceedings legislation. It has serious impacts on the litigation autonomy of other governments. Its pith and substance is to legislate in respect of property and civil rights outside of the province. It permits British Columbia to seek certification of a class of governments asserting recovery rights for opioid‑related health care costs, on an opt-out basis, such that by default, the provincial governments and the federal government are included in the class action. This creates a new substantive right because governments are not persons or members of a class of persons for the purposes of the Class Proceedings Act. Section 11 gives the province the ability to do something it could not before. Its effects are not simply limited to the application of the ORA to the extant class action.
Although s. 11 of the ORA is procedural in some respects, the placement of s. 11(1)(b) within procedural paragraphs does not mean that its effects are merely procedural. The main thrust of s. 11 is found in s. 11(1)(b) and (2). The opt‑out regime provided for in s. 11(2) is central to the pith and substance of s. 11 as a whole. Section 11 cannot be construed as an opt‑in regime; nothing indicates that other governments have a choice of opting in. British Columbia can commence a proceeding without any consultation with the other governments. By implementing an opt‑out regime, the legislature of British Columbia is seeking to preserve substantive rights it has arrogated without the consent of the other governments. As well, the other governments do not have meaningful input on a host of important aspects of the proceeding, including the choice of counsel, litigation strategy, the evidence to be tendered, or negotiation and settlement of the action. They lose their right to simultaneously commence proceedings in their own jurisdictions. They are necessarily put to a choice pursuant to the laws of British Columbia to opt out or lose their litigation autonomy. Opting out requires taking proactive steps in accordance with the certification order, meaning that British Columbia’s provincial courts dictate how they may go about preserving their own rights. Further, s. 11 operates primarily and not incidentally with respect to litigants outside of British Columbia. The Crown however is not an ordinary litigant. Every province and Parliament has an attorney general with executive and judicial functions acting as its chief law officer. The effects of s. 11 on the important functions of other governments’ attorneys general cannot be merely incidental.
The fact that governments can opt out does not change the legislation’s prima facie encroachment upon property and civil rights in other provinces. Thus, it cannot be said that an opt‑out regime is purely procedural given the real and substantial impacts that the legislation has on the litigation autonomy of class members. Because the pith and substance of s. 11(1)(b) and the opt‑out context in which it operates is to legislate with respect to the substantive rights of other governments, it falls within “Property and Civil Rights” under s. 92(13) of the Constitution Act, 1867.
Common issues that might ground jurisdiction in a provincial superior court over multi‑Crown class proceedings are irrelevant to the constitutional validity of s. 11 of the ORA. A meaningful connection cannot be established between the enacting province, the legislative subject matter, and those made subject to it based on the real and substantial connection test applicable in determining whether a court has jurisdiction over a matter. Nor do the nature of the class action and the choice of the foreign Crowns to participate provide a meaningful connection; consent plays no role in deciding whether there is a meaningful connection. The assessment of a meaningful connection must be made with a view to the pith and substance of the impugned law. Section 11 of the ORA allows British Columbia to bring a class action on behalf of other governments across Canada. The fact that the subject matter of the law is, in pith and substance, related to the substantive rights of other governments necessarily means that it has no meaningful connection with British Columbia. As well, s. 11 serves a broader purpose than merely to establish a cause of action against defendants for wrongs in the province; its focus is on the other governments as plaintiffs and how their substantive rights operate in the context of the civil action. Even on a premise that s. 11 is procedural in nature and potentially falls under s. 92(14) of the Constitution Act, 1867, this logic would apply. For these reasons, it cannot be said that British Columbia has a meaningful connection with both the subject matter of s. 11 and those made subject to it. As a result, s. 11 does not respect the territorial limitations prescribed by s. 92 of the Constitution Act, 1867.
Having found that there is no meaningful connection between the enacting province, the subject matter of the law, and those made subject to the law, the disposition of this appeal does not require determining whether s. 11 of the ORA pays respect to the legislative sovereignty of the other provincial governments and the federal government. However, the fact that the other governments have endorsed the constitutional validity of the provision is of no moment. The support of the other governments is based on a misconstrued interpretation of s. 11 as an opt‑in provision. In any event, the provinces cannot amend the Constitution by mutual consent.
The ancillary powers doctrine should not be applied to uphold the constitutional validity of s. 11. Section 11 is the only provision of the ORA related to causes of action of other provincial or territorial governments under their own substantive laws. Without s. 11, the ORA properly grounds and establishes a direct and distinct cause of action against the defendants. Section 11 is not needed to enforce the substantive aspects of the remainder of the ORA.
The appropriate remedy in the instant case is severance of ss. 11(1)(b) and (2) from the ORA. Severance should be employed when possible so that constitutional aspects of the legislation are preserved. Only partial invalidation of the law is necessary. The other provisions in s. 11 need not be disturbed and the balance of the statutory scheme can stand on its own.
Cases Cited
By Karakatsanis J.
Applied: British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; referred to: Canada Post Corp. v. Lépine, 2009 SCC 16, [2009] 1 S.C.R. 549; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534; Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158; Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837; Hunt v. T&N plc, [1993] 4 S.C.R. 289; Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366; Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693; Fédération des producteurs de volailles du Québec v. Pelland, 2005 SCC 20, [2005] 1 S.C.R. 292; Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, [2018] 3 S.C.R. 189; Endean v. British Columbia, 2016 SCC 42, [2016] 2 S.C.R. 162; Sharp v. Autorité des marchés financiers, 2023 SCC 29; R. v. Morgentaler, [1993] 3 S.C.R. 463; Murray-Hall v. Quebec (Attorney General), 2023 SCC 10; Reference re Genetic Non-Discrimination Act, 2020 SCC 17, [2020] 2 S.C.R. 283; Reference re Impact Assessment Act, 2023 SCC 23; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146; Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Attorney General of Quebec v. Labrecque, [1980] 2 S.C.R. 1057; Verreault (J.E.) & Fils Ltée v. Attorney General (Quebec), [1977] 1 S.C.R. 41; Attorney General for Ontario v. Fatehi, [1984] 2 S.C.R. 536; R. v. Murray, [1967] S.C.R. 262; R. v. McColman, 2023 SCC 8; R. v. British Columbia, [1992] 4 W.W.R. 490; Nelson (City) v. Marchi, 2021 SCC 41, [2021] 3 S.C.R. 55; McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477; Johnson v. Ontario, 2022 ONCA 725, 475 D.L.R. (4th) 344; Coburn and Watson’s Metropolitan Home v. Home Depot of Canada Inc., 2019 BCCA 308, 438 D.L.R. (4th) 533; Johnson v. Ontario, 2021 ONCA 650, 158 O.R. (3d) 266; Wannan v. Hutchison, 2020 BCSC 1233, 74 C.P.C. (8th) 222; Milios v. Zagas (1998), 38 O.R. (3d) 218; DLC Holdings Corp. v. Payne, 2021 BCCA 31, 456 D.L.R. (4th) 337; Dubuc v. 1663066 Ontario Inc., 2009 ONCA 914, 99 O.R. (3d) 476; Poffenroth Agri Ltd. v. Brown, 2020 SKCA 121, 65 C.P.C. (8th) 348; 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2013 ONCA 279, 362 D.L.R. (4th) 88; 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), 62 O.R. (3d) 535; Currie v. McDonald’s Restaurants of Canada Ltd. (2005), 250 D.L.R. (4th) 224; Herold v. Wassermann, 2022 SKCA 103, 473 D.L.R. (4th) 281; Fitzsimmons v. Cie matériaux de construction BP Canada, 2016 QCCS 1446; Tataskweyak Cree Nation v. Canada (A.G.), 2021 MBQB 153; Logan v. Ontario (Minister of Health) (2003), 36 C.P.C. (5th) 176; Dabbs v. Sun Life Assurance Co. of Canada (1998), 40 O.R. (3d) 429; Leonard v. The Manufacturers Life Insurance Company, 2022 BCCA 28, 75 B.C.L.R. (6th) 235; Berry v. Pulley, 2011 ONSC 1378, 106 O.R. (3d) 123; Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 2 S.C.R. 225; AIC Limited v. Fischer, 2013 SCC 69, [2013] 3 S.C.R. 949; Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666; Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295; Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511; Castillo v. Castillo, 2005 SCC 83, [2005] 3 S.C.R. 870; Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297; Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494; Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3; Airia Brands Inc. v. Air Canada, 2017 ONCA 792, 417 D.L.R. (4th) 467; Harrington v. Dow Corning Corp., 2000 BCCA 605, 193 D.L.R. (4th) 67; Meeking v. Cash Store Inc., 2013 MBCA 81, 367 D.L.R. (4th) 684; Thorpe v. Honda Canada Inc., 2011 SKQB 72, [2011] 8 W.W.R. 529; Wilson v. Servier Canada Inc. (2000), 50 O.R. (3d) 219; Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416; Canada (Attorney General) v. British Columbia Investment Management Corp., 2019 SCC 63, [2019] 4 S.C.R. 559; Wells v. Newfoundland, [1999] 3 S.C.R. 199; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; Bank of Montreal v. Attorney General (Quebec), [1979] 1 S.C.R. 565; Tolofson v. Jensen, [1994] 3 S.C.R. 1022; Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40, [2003] 2 S.C.R. 63; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134.
By Côté J. (dissenting)
R. v. Parranto, 2021 SCC 46, [2021] 2 S.C.R. 366; R. v. Smith, 2019 SKCA 100, 382 C.C.C. (3d) 455; R. v. Fyfe, 2017 SKQB 5; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494; Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534; Gauthier v. The King (1918), 56 S.C.R. 176; Sharp v. Autorité des marchés financiers, 2023 SCC 29; Sparling v. Quebec (Caisse de dépôt et placement du Québec), [1988] 2 S.C.R. 1015; Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 2 S.C.R. 225; Currie v. McDonald’s Restaurants of Canada Ltd. (2005), 74 O.R. (3d) 321; Canada Post Corp. v. Lépine, 2009 SCC 16, [2009] 1 S.C.R. 549; Turner v. Bell Mobility Inc., 2016 ABCA 21, 394 D.L.R. (4th) 325; Gillis v. BCE Inc., 2015 NSCA 32, 358 N.S.R. (2d) 39; Frey v. BCE Inc., 2013 SKCA 26, 409 Sask. R. 266; Johnson v. Ontario, 2021 ONCA 650, 158 O.R. (3d) 266; Johnson v. Ontario, 2022 ONCA 725, 164 O.R. (3d) 573; Hamm v. Canada (Attorney General), 2021 ABCA 329, 32 Alta. L.R. (7th) 213; Herold v. Wassermann, 2022 SKCA 103, 473 D.L.R. (4th) 281; Coburn and Watson’s Metropolitan Home v. Home Depot of Canada Inc., 2019 BCCA 308, 438 D.L.R. (4th) 533; Dubuc v. 1663066 Ontario Inc., 2009 ONCA 914, 99 O.R. (3d) 476; In re Criminal Code (1910), 43 S.C.R. 434; Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4, [2020] 1 S.C.R. 15; Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40, [2003] 2 S.C.R. 63; Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572; Hunt v. T&N plc, [1993] 4 S.C.R. 289; Castillo v. Castillo, 2005 SCC 83, [2005] 3 S.C.R. 870; Harrington v. Dow Corning Corp., 2000 BCCA 605, 193 D.L.R. (4th) 67; HSBC v. Hocking, 2008 QCCA 800, [2008] R.J.Q. 1189; Airia Brands Inc. v. Air Canada, 2017 ONCA 792, 417 D.L.R. (4th) 467; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, [2018] 3 S.C.R. 189; Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250; R. v. Brown, 2022 SCC 18, [2022] 1 S.C.R. 374; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; Attorney General of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31; Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457; Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453; Schachter v. Canada, [1992] 2 S.C.R. 679; Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629.
Statutes and Regulations Cited
Act respecting the Ministère de la Justice, CQLR, c. M‑19, s. 4.
Act Respecting the Role of the Attorney General, R.S.N.B. 2011, c. 116, s. 2.
Class Proceedings Act, R.S.B.C. 1996, c. 50, ss. 1, 2(1), 4, 4.1, 8(3), 10, 12, 15(1), 16, 26, 35, 36(2), 44.
Competition Act, R.S.C. 1985, c. C‑34, s. 52.
Constitution Act, 1867, Part V, Part VI, ss. 91, 92.
Constitution Act, 1982, s. 52.
Crown Proceeding Act, R.S.B.C. 1996, c. 89, s. 1 “person”.
Department of Justice Act, R.S.C. 1985, c. J‑2, s. 5.
Department of Justice Act, R.S.N.W.T. (Nu.) 1988, c. 97 (Supp.), s. 5.
Department of Justice Act, R.S.Y. 2002, c. 55, s. 7.
Executive Council Act, S.N.L. 1995, c. E‑16.1, s. 4(4).
Government Organization Act, R.S.A. 2000, c. G‑10, Sch. 9, s. 2.
Interpretation Act, R.S.B.C. 1996, c. 238, s. 29 “corporation”, “person”.
Judicature Act, R.S.P.E.I. 1988, c. J‑2.1, s. 36.
Ministry of the Attorney General Act, R.S.O. 1990, c. M.17, s. 5.
Opioid Damages and Health Care Costs Recovery Act, C.C.S.M., c. O55.
Opioid Damages and Health Care Costs Recovery Act, S.P.E.I. 2020, c. 77.
Opioid Damages and Health Care Costs Recovery Act, S.A. 2019, c. O‑8.5, ss. 12, 13.
Opioid Damages and Health Care Costs Recovery Act, S.B.C. 2018, c. 35, ss. 2, 3, 4, 5, 6, 7, 8, 10, 11, 12.
Opioid Damages and Health Care Costs Recovery Act, S.N.B. 2023, c. 28.
Opioid Damages and Health Care Costs Recovery Act, S.N.L. 2019, c. O‑6.2.
Opioid Damages and Health-care Costs Recovery Act, S.N.S. 2020, c. 4.
Opioid Damages and Health Care Costs Recovery Act, S. Nu. 2023, c. 19.
Opioid Damages and Health Care Costs Recovery Act, S.N.W.T. 2023, c. 18.
Opioid Damages and Health Care Costs Recovery Act, 2019, S.O. 2019, c. 17, Sch. 2, ss. 11, 12.
Opioid Damages and Health Care Costs Recovery Act, S.S. 2020, c. 32.
Opioid-related Damages and Health Care Costs Recovery Act, CQLR, c. R-2.2.0.0.01.
Public Service Act, R.S.N.S. 1989, c. 376, s. 29.
The Department of Justice Act, C.C.S.M. c. J35, ss. 2, 2.1.
The Justice and Attorney General Act, S.S. 1983, c. J‑4.3, s. 10.
Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30, ss. 5, 2(5)(a), 3(2).
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APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, Fisher and Horsman JJ.A.), 2023 BCCA 306, 79 B.C.L.R. (6th) 1, 484 D.L.R. (4th) 512, [2024] 2 W.W.R. 436, [2023] B.C.J No. 1477 (Lexis), 2023 CarswellBC 2178 (WL), affirming a decision of Brundrett J., 2022 BCSC 2147, 77 B.C.L.R. (6th) 313, [2022] B.C.J. No. 2382 (Lexis), 2022 CarswellBC 3468 (WL). Appeal dismissed, Côté J. dissenting.
W. David Rankin and Ankita Gupta, for the appellants Sanis Health Inc. and Shoppers Drug Mart Inc.
Peter J. Pliszka, Andrew Borrell and Tom Posyniak, for the appellant Sandoz Canada Inc.
Sandra A. Forbes and Chanakya A. Sethi, for the appellant the McKesson Canada Corporation.
Reidar M. Mogerman, K.C., Katie I. Duke and Emily Lapper, for the respondent.
Christine Mohr and Michelle Kellam, for the intervener the Attorney General of Canada.
Ryan Cookson and S. Zachary Green, for the intervener the Attorney General of Ontario.
Pierre-Luc Beauchesne, Marie-Catherine Bolduc and Laurie Anctil, for the intervener the Attorney General of Quebec.
Agnes MacNeil, K.C., and Edward A. Gores, K.C., for the intervener the Attorney General of Nova Scotia.
Written submissions only by Véronique R. Guitard and Rose Campbell, for the intervener the Attorney General of New Brunswick.
Michael Bodner, for the intervener the Attorney General of Manitoba.
Written submissions only by Caroline Davison and Michael Fleischmann, for the intervener the Attorney General of Prince Edward Island.
Noah Wernikowski and Justin Stevenson, for the intervener the Attorney General of Saskatchewan.
Brooklyn LeClair, for the intervener the Attorney General of Alberta.
Written submissions only by Mark Ishack and Thomas Wallwork, for the intervener the Attorney General of the Northwest Territories.
Written submissions only by I. H. Fraser, for the intervener the Attorney General of the Yukon Territory.
Roger J. F. Lepage and Fadi Amine, for the interveners Groupe Jean Coutu (PJC) inc. and Pro Doc Ltd.
The judgment of Wagner C.J. and Karakatsanis, Martin, Kasirer, O’Bonsawin and Moreau JJ. was delivered by
Karakatsanis J. —
I. Introduction
[1] In an increasingly complex modern world, where governments assume greater regulatory roles in multifaceted areas overlapping jurisdictional boundaries, there is a greater need for cooperation between governments and between courts that cross those borders. Our Court has recognized this need in a more flexible approach to interjurisdictional cooperation. It is reflected in the interpretative principle of “cooperative federalism”; the respect and recognition of each province’s adjudicative jurisdiction in the spirit of mutual comity; and the development of procedural frameworks to permit cross-border collective actions. It is reflected in the horizontal cooperation between governments for the public good.
[2] National class actions in Canada, and in particular multi-Crown class actions, represent the convergence of these ideas. Fifteen years ago, this Court urged provincial legislatures to “pay more attention to the framework for national class actions and the problems they present” (Canada Post Corp. v. Lépine, 2009 SCC 16, [2009] 1 S.C.R. 549, at para. 57). When products, people, and problems