Be it enacted by the Lieutenant-Governor and
House of Assembly in Legislative Session convened, as follows:
SNL2019 cO-6.2
as amended
1. (1) Section 2 of the Opioid Damages and
Health Care Costs Recovery Act is amended by adding immediately before
paragraph (a) the following:
(a.01) "active ingredient" means an
ingredient prescribed in the regulations;
(a.02) "consultant" means a person who
provides advisory services to
(i) a wholesaler in relation to the distribution,
sale or offering for sale of opioid products, or
(ii) a manufacturer in relation to the sale of
active ingredients or opioid products;
(2) Paragraph 2(a) of the Act is repealed and the
following substituted:
(a) "cost of health care benefits" means
(i) in relation to an action under subsection
4(1), the sum of
(A) the present value of
the total expenditure by the government for health care benefits provided for
insured persons as a result of opioid-related
disease, injury or illness, and
(B) the present value of
the estimated total expenditure by the government for health care benefits that
could reasonably be expected to be provided for those insured persons as a result of opioid-related disease, injury or illness or
the risk of opioid-related disease, injury or illness, and
(ii) in relation to an action under subsection
4.1(1), the sum of
(A) the present value of
the total expenditure by the government of Canada for health care benefits
provided for insured persons as a
result of opioid-related disease, injury or illness, and
(B) the present value of
the estimated total expenditure by the government of Canada for health care
benefits that could reasonably be expected to be provided for those insured
persons as a result of opioid-related disease, injury or illness or the risk of
opioid-related disease, injury or illness;
(3) Paragraph 2(c) of the Act is repealed and the
following substituted:
(c) "health care benefits" means
(i) in relation to an action under subsection 4(1)
(A) insured services as
defined in the Hospital Insurance Regulations,
(B) insured services as
defined in the Medical Care and Hospital Insurance Act,
(C) benefit as defined
in the Pharmaceutical Services Act, and
(D) other expenditures by the government, made
directly or through one or more agents or other intermediate bodies, for
programs, services, benefits or similar matters
associated with disease, injury or illness, and
(ii) in relation to an action under subsection
4.1(1), expenditures by the government of Canada for programs, services,
benefits or similar matters associated with disease, injury or illness;
(4) Paragraph 2(g) of the Act is repealed and the
following substituted:
(g) "manufacturer" means a person who manufactures or has manufactured an active
ingredient or opioid product and a person who, in the past or currently,
(i) causes, directly or indirectly, through arrangements with
contractors, subcontractors, licensees, franchisees or others, the manufacture
of an active ingredient or opioid product,
(ii) 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 active ingredients or opioid products by
that person or by other persons,
(iii) engages in or
causes, directly or indirectly, other persons to engage in promoting an active
ingredient or opioid product, or
(iv) is a trade
association primarily engaged in
(A) advancing the
interests of manufacturers,
(B) promoting an active
ingredient or opioid product, or
(C) causing, directly or
indirectly, other persons to engage in promoting an active ingredient or opioid
product,
but does not include
(v) a wholesaler or
retailer of opioid products who is not related to
(A) a person who
manufactures an opioid product, or
(B) a person described
in subparagraph (i), or
(vi) a person who
(A) is a manufacturer
only because subparagraph (ii) or (iii) applies to the person, and
(B) is not related to
(I) a person who
manufactures an opioid product, or
(II) a person described
in subparagraph (i) or (iv);
(5) Paragraph 2(h) of the Act is repealed and the
following substituted:
(h) "opioid product" means any product that contains a drug or active ingredient
prescribed in the regulations;
(6) Paragraph 2(j) of the Act is repealed and the
following substituted:
(j) "opioid-related wrong" means
(i) a tort that is
committed in the province by a manufacturer, wholesaler
or consultant and that causes or contributes to opioid-related disease, injury or illness, or
(ii) in an action under
subsection 4(1) or 4.1(1), a breach, by a manufacturer, wholesaler or
consultant, of a common law, equitable or statutory duty or obligation owed to
persons in the province who have used or been exposed to or might use or be
exposed to an opioid product;
2. (1) Subsection 3(4) of the Act is repealed and
the following substituted:
(4) For the purposes of
determining the market share of a manufacturer for a type of opioid product sold
in the province, the court shall calculate the manufacturer's market share for
the type of opioid product by the following formula:
mms = mm/MM x 100%
where
mms is the manufacturer's
market share for the type of opioid product from the date of the earliest
opioid-related wrong committed by that manufacturer to the date of trial;
mm is the quantity of the type of opioid product
manufactured by the manufacturer that is distributed, sold
or offered for sale within the province from the date of the earliest
opioid-related wrong committed by that manufacturer to the date of trial; and
MM is the quantity of the type of opioid product
manufactured by all manufacturers that is purchased or dispensed within the
province for the purpose of providing health care benefits from the date of the
earliest opioid-related wrong committed by the manufacturer to the date of
trial.
(2) Section 3 of the Act is amended by adding
immediately after subsection (4) the following:
(4.1) For the purposes of
determining the market share of a wholesaler for a type of opioid product sold
in the province, the court shall calculate the wholesaler's market share for
the type of opioid product by the following formula:
wms = wm/WW x 100%
where
wms is the wholesaler's market share for the type
of opioid product from the date of the earliest opioid-related wrong committed
by that wholesaler to the date of trial;
wm is the quantity of the type of opioid product that
is distributed, sold or offered for sale by the wholesaler
within the province from the date of the earliest opioid-related wrong
committed by that wholesaler to the date of trial; and
WW is the quantity of the type of opioid product that
is distributed, sold or offered for sale within the province
for the purpose of providing health care benefits from the date of the earliest
opioid-related wrong committed by the wholesaler to the date of trial.
3. Subsection 4(1) of the Act is repealed and the
following substituted:
Direct action by
Crown
4. (1) The Crown has a direct and distinct action against a
manufacturer, wholesaler or consultant to recover the
cost of health care benefits caused or contributed to by an opioid-related
wrong.
4. The Act is amended by adding immediately after
section 4 the following:
Direct action by Crown
in right of Canada
4.1 (1) The
Crown in right of Canada has a direct and distinct action against a
manufacturer, wholesaler or consultant to recover the
cost of health care benefits caused or contributed to by an opioid-related
wrong.
(2) An action under subsection
(1) is brought by the Crown in right of Canada in its own
right and not on the basis of a subrogated claim.
(3) In an action under
subsection (1), the Crown in right of Canada may recover the cost of health
care benefits whether or not there has been a recovery
by other persons who have suffered damage caused or contributed to by the
opioid-related wrong committed by the defendant.
(4) In an action under
subsection (1), the Crown in right of Canada may recover the cost of health
care benefits
(a) for particular
individual insured persons who have suffered damage caused or
contributed to by the use of or exposure to a type of opioid product; or
(b) on an aggregate basis, for
a population of insured persons who have suffered damage caused or contributed
to by the use of or exposure to a type of opioid
product.
(5) Where the Crown in right
of Canada seeks in an action under subsection (1) to recover the cost of health
care benefits on an aggregate basis,
(a) it is not necessary to
(i) identify
the particular individual insured persons,
(ii) prove the cause of
opioid-related disease, injury or illness in any
particular individual insured person, or
(iii) prove the cost of health
care benefits for any particular individual insured person;
(b) the health care records
and documents of particular individual insured persons or the documents related
to the provision of health care benefits for particular individual insured
persons are not compellable except as provided under a rule of law, practice or
procedure that requires the production of documents relied on by an expert witness;
(c) a person is not
compellable to answer questions with respect to the health of, or the provision
of health care benefits for, particular individual insured persons;
(d) notwithstanding paragraphs
(b) and (c), on application by a defendant, the court may order discovery of a
statistically meaningful sample of the documents referred to in paragraph (b)
and the order shall include directions concerning the nature, level of detail
and type of information to be disclosed; and
(e) where an order is made
under paragraph (d), the identity of particular individual
insured persons shall not be disclosed, and all identifiers that disclose or
may be used to trace the names or identities of any particular individual
insured persons shall be deleted from any documents before the documents are
disclosed.
5. Subsection 5(1) of the Act is amended by
(a) deleting the reference "subsection
4(1)" and substituting the reference "subsection 4(1) or
4.1(1)"; and
(b) deleting the words "Crown proves" and
substituting the words "Crown, or the Crown in right of Canada, as the
case may be, proves".
6. (1) Subsection 6(1) of the Act is repealed and
the following substituted:
Joint and
individual liability in action under subsection 4(1) or 4.1(1)
6. (1) Two
or more defendants in an action under subsection 4(1)
or 4.1(1) are jointly and individually liable for the cost of health care
benefits where
(a) those defendants jointly
breached a duty or obligation described in the definition of
"opioid-related wrong"; and
(b) as a consequence of the breach described in paragraph (a), at least one
of those defendants is held liable in the action under subsection 4(1) or
4.1(1) for the cost of those health care benefits.
(2) Subsection 6(2) of the Act is amended by
(a) deleting the reference "subsection
4(1)" and substituting the reference "subsection 4(1) or
4.1(1)"; and
(b) deleting the words "manufacturers or
wholesalers" wherever they appear and substituting the words
"manufacturers, wholesalers or consultants".
7. Section 7 of the Act is amended by deleting the
word "or" at the end of paragraph (a), deleting the period at the end
of paragraph (b) and substituting a semi-colon and the word "or" and adding
immediately after paragraph (b) the following:
(c) by the Crown in right of Canada under
subsection 4.1(1).
8. (1) Subsection 8(1) of the Act is amended by
deleting the words "2 years" and substituting the words "15
years".
(2) Section 8 of the Act is amended by adding
immediately after subsection (1) the following:
(1.1) An action brought by the Crown in right of Canada within 15
years after the coming into force of this Act for the recovery of the cost of
health care benefits is not barred under the Limitations Act.
(3) Subsection 8(2) of the Act is amended by deleting
the reference "subsection (1)" and substituting the reference "subsection
(1) or (1.1)".
9. (1) Subsection 9(2) of the Act is amended by deleting
the words "Crown is unable" and substituting the words "Crown,
or the Crown in right of Canada, as the case may be, is unable".
(2) Paragraph 9(3)(e) of the Act is amended by
deleting the words "manufacturers or wholesalers" and substituting
the words "manufacturers, wholesalers or consultants".
10. The Act is amended by adding immediately after
section 9 the following:
Joint and
individual liability of directors and officers
9.1 (1) A director or officer of a corporation who directs,
authorizes, assents to, acquiesces in or participates in an opioid-related
wrong committed by the corporation is jointly and individually liable with the
corporation for the cost of health care benefits or damages caused or
contributed to by the opioid-related wrong.
(2) Subsection (1) applies whether or not an
action against the corporation for recovery of the cost of health care benefits
or damages has been commenced or concluded.
(3) A
director or officer is not liable under subsection (1) where the director or
officer proves, on a balance of probabilities, that the director or officer
(a) did
not know, and in the exercise of reasonable diligence could not have known,
that the corporation was committing an opioid-related wrong; or
(b) exercised
reasonable diligence to prevent the corporation from committing the
opioid-related wrong.
11. Section 13 of the Act is amended by adding
immediately before paragraph (a) the following:
(a.01) prescribing active ingredients for the
purposes of paragraph 2(a.01);
Commencement
12. (1) This Act comes into force on the day the Opioid
Damages and Health Care Costs Recovery Act comes into force.
(2) When brought into
force under subsection (1), a provision of this Act has the retroactive effect
necessary to give the provision full effect for all purposes, including
allowing an action to be brought under subsection 4.1(1) arising from an
opioid-related wrong, whenever the opioid-related wrong occurred.
ŠKing's Printer