⚖️ Killing the pain

To: Hearsay Readers

TODAY’S DOCKET

  • Alberta’s dope new legislation

  • Popping the cap on wrongful dismissal awards

  • Pay transparency in BC

  • Health authorities sued for stabbings

PRODUCT LIABILITY

Alberta beefing up its arsenal in the war on Big Pharma

Richard Sackler on Dopesick played by Michael Stuhlbarg

Dopesick/Hulu

Your favourite streaming service isn’t the only one taking aim at opioid companies these days. Canadian provinces are gearing up to litigate two class action lawsuits that are currently before the courts in BC. And they’re using legislation to bolster their legal positions. That’s why Alberta just announced changes to its Opioid Damages and Health Care Costs Recovery Act.

Do we really need legislation to hold people accountable for aggressive pill pushing? Need — maybe not. But it certainly helps. The legislation lets provinces recover for the downstream impacts of the opioid crisis.

Why the legislation? When Bob hits Jill in a car accident, he’s liable to Jill for her physical injuries and the physical damage to her car. Within reason, he also needs to pay Jill for downstream financial impacts — things like lost work and transportation costs.

But the law draws a pretty clear line when it comes to downstream financial impacts suffered by anyone other than Jill. Those are purely economic losses that generally aren’t recoverable. So if Jill misses a critical meeting after the accident and her company loses money, the company can’t sue Bob to recover.

What’s that mean for opioids? The provincial governments are in the same position as Jill’s company. Overprescription of opioids caused physical harm to opioid users — but all the provinces did was pay for healthcare. The provinces are out of pocket but didn’t suffer physical losses themselves.

What does the legislation do? Alberta’s opioid legislation reverses the default position — it says the government can bring a “direct and distinct action” to recover the cost of providing healthcare benefits for “opioid-related wrongs”. The government can recover aggregate costs, using statistics and assumptions, and doesn’t need to prove the harm suffered by any particular opioid user.

Right now, the legislation targets manufacturers and wholesalers of opioid products. With the new changes, Alberta can also go after companies that made or sold active pharmaceutical ingredients — not just the end products. Plus, the province can sue the consultants that gave advice to manufacturers. Other provinces are making the same changes.

What’s next? We’re coming up on certification hearings for the two class action lawsuits in BC, which will decide whether the claims can move forward. The first is against the manufacturers and distributors, and the second is against consultants.

But don’t expect a quick end to the legal battle. BC used almost identical legislation to recover healthcare costs from tobacco companies. That litigation spanned about 15 years, including two trips to the Supreme Court (in 2005 and 2011).

HEARSAY ROUNDUP

💰 The Ontario Court of Appeal appears to be softening the ceiling on damage awards for wrongful dismissal. In two recent decisions, the Court upheld awards that exceed the customary cap of two years’ pay in lieu of notice. The Court signed off on notice periods of 27 months (2023 ONCA 702) and 30 months (2023 ONCA 696).

🪟 As of today, job postings in BC need to disclose the employer’s expected pay range. The change was introduced in BC’s Pay Transparency Act and is now taking effect. The Act also says employers can’t ask employees how much they were paid in the past and can’t punish employees for telling their colleagues how much they earn.

👮 Indigenous police forces in Quebec filed a discrimination claim against the federal government. The claim alleges the federal government discriminated by underfunding Indigenous police forces. Sound familiar? That’s the same type of claim that led to the federal government settling for $23-billion last week due to chronic underfunding of child welfare services.

🥼Manitoba health authorities are facing multiple lawsuits alleging improper care for Trevor Farley, a man who killed his parents and stabbed a nursing supervisor. Shortly before he committed the attacks, Farley walked out of a hospital where he was supposed to be undergoing an involuntary psychiatric assessment. The Manitoba Court of King’s Bench recently found that Farley was not criminally responsible for his actions. The lawsuits, filed by Farley’s family, the nursing supervisor, and another healthcare worker, allege that health authorities didn’t do enough to address the risk posed by Farley.

🧑‍⚖️ The Supreme Court is releasing a decision on Friday about whether the mandatory minimum punishment for child luring violates the Charter.