November 1, 2023
The Province of BC’s proposed class action to recover healthcare costs related to the BC opioid crisis from defendants, including consultants to companies that manufactured, marketed, distributed or sold opioid drugs and products in Canada, has survived a legal challenge to its initiating pleadings.
In British Columbia v. McKinsey, 2023 BCSC 1762, the Supreme Court of British Columbia dismissed an application by McKinsey & Company Inc., United States and McKinsey & Company Canada to strike initiating pleadings naming the company as a defendant in a class action expected to be certified before the end of the year.
The pleadings are unique as they rely (among other things) on s. 52 of Canada’s Competition Act.
Scott Stanley was interviewed by Canadian Lawyer and commented on the Competition Act elements of the pleadings.
“I think [this ruling] is going to be of profound interest to lawyers who do these [class action] claims and are working with the Competition Act. It’s a novel pleading; it was one that survived a strike,” said Stanley.
He explains that s. 52 claims are “challenging civil claims to advance because they’re predicated on first establishing the commission of an offence. Here, the alleged misrepresentation did not occur in Canada; it was not made directly by the defendant to any entity in Canada. Those facts would generally be incongruent with establishing a penal offence in Canada. Alleging that McKinsey acted as one with its drug manufacturer clients to collectively promote inaccurate messaging about opioids is novel, but seemingly contemplated by the legislation.”
The argument in the Province’s Amended Notice of Civil Claim was that McKinsey was involved in the design, strategy and execution of marketing efforts to promote and sell addictive and harmful opioid products in Canada. The amended Opioid Damages and Health Care Costs Recovery Act (ORA) includes a right of action by the province and the Government of Canada against a consultant in addition to a manufacturer or wholesaler/distributor.