Canada: Bill 116: The Opioid Damages And Health Costs Recovery Act, 2019

Health Bulletin
Last Updated: July 31 2019
Article by Lynne Golding, Sophie MacRae and Yvonne Mazurak

This is a follow up to our bulletin, Bill 116: Ontario Health to Include New Mental Health and Addictions Centre of Excellence. Schedule 2 of Bill 116 introduces the Opioid Damages and Health Care Costs Recovery Act, 2019 (the "Act").  

This bulletin provides a brief overview of the proposed legislation in its current form. The Act passed first reading, but as the Ontario legislative assembly has adjourned for the summer, will not be debated or progress further until the fall at the earliest.

Cause of Action

The Act provides the Ontario government with a direct and distinct cause of action against a manufacturer or wholesaler to recover the cost of health care benefits caused or contributed to by an opioid-related wrong with respect to individual provincially insured persons or on an aggregate basis for a population of insured persons. An action would be in its own right and not on the basis of a subrogated claim. It would be independent of any recovery by other persons.

The Act defines an "opioid-related wrong" as:

  • a tort that is committed in Ontario by a manufacturer or wholesaler and that causes or contributes to "opioid-related disease, injury or illness" (including "problematic substance use, addiction and general deterioration of health"); or
  • a breach, by a manufacturer or wholesaler, of a common law, equitable or statutory duty or obligation owed to insured persons in Ontario who have used or been exposed to or might use or be exposed to an opioid product.  

The "cost of health care benefits" is the sum of:

  • the present value of the total expenditure for health care benefits provided for insured persons as a result of opioid-related disease, injury or illness (or the risk thereof); and
  • the present value of the estimated total expenditure for health care benefits that could reasonably be expected to be provided for those insured persons.

Recoverable health care benefits under the Act include the cost of insured services under the Health Insurance Act; the cost of drugs, substances or professional services under the Ontario Drug Benefit Act; the cost of care and services in various provincially funded facilities (including long-term care homes and independent health facilities); and the cost of community services under the Home Care and Community Services Act, 1994.

Recovery of Costs on an Aggregate Basis - Rules and Presumptions

If an action is brought to recover the cost of health care benefits on an aggregate basis, it would not be necessary for the government to identify particular individuals; prove the cause of opioid-related disease, injury or illness in any particular individual; or prove the cost of health care benefits for any particular individual.

The Act provides that in an action to recover the cost of health care benefits on an aggregate basis, if the government can prove, on a balance of probabilities, that (i) the defendant breached its duty; (ii) using the type of opioid product can cause or contribute to disease, injury or illness; and (iii) during the period of the breach, the type of opioid product manufactured and promoted by the defendant was offered for distribution or sale in Ontario, then the court would make two presumptions:

  • that persons who used or were exposed to the type of opioid products manufactured or promoted by the defendant would not have used or been exposed to them, had the defendant not breached its duty; and
  • that the use or exposure caused or contributed to disease, injury or illness (or the risk thereof) in some of those persons.

If these presumptions apply, the court would then determine on an aggregate basis the cost of health care benefits provided after the date of the breach, and each defendant would be liable for the proportion of the cost equal to its market share in the type of opioid product. The Act contains a formula for determining market share. Liability could be readjusted among defendants should a defendant prove, on a balance of probabilities, that a breach did not cause or contribute to the use or exposure or to the disease, injury or illness (or risk thereof). The Act also includes a number of provisions for apportioning liability among defendants to the same action.

Limitation Period

If passed, the Act would allow the government to commence an action up to 15 years after the limitation period section of the Act comes into force. Furthermore, an action that had been dismissed prior to the Act coming into force because it was held to be barred by the Limitations Act, 2002 would be revived. A complementary amendment would be made to Schedule 1 of the Limitations Act, 2002, to give effect to this limitation period.

The Act also provides for retroactive effect, which would allow an action to be brought regardless of whether the opioid-related wrong occurred prior to the legislation coming into force.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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