Statutes of Newfoundland and Labrador 2024 Chapter 25

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(2) Paragraph 2(a) of the Act is repealed and the following substituted: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(3) Paragraph 2(c) of the Act is repealed and the following substituted:

(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,

(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

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:

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.