Executive Summary: Key Legal and Evidentiary Issues

• This appeal concerns the commonality requirement under s. 4(1)(c) of the Class Proceedings Act, R.S.B.C. 1996, c. 50, specifically what evidentiary standard a plaintiff must meet to show "some basis in fact" that class members' claims raise common issues.
   
• British Columbia brought this class proceeding against McKinsey & Company, Inc. United States and McKinsey & Company Canada, alleging they provided marketing consulting services to opioid manufacturers and distributors that contributed to the opioid crisis in Canada.
   
• McKinsey challenged the certification order on the basis that the certification judge either applied an incorrect test or erred in finding the Province had established some basis in fact that common issues exist.
   
• Central to the dispute was whether the Province was required to adduce evidence proving McKinsey actually performed opioid-related work in Canada, or whether evidence of its U.S. work and corporate integration with its Canadian affiliate was sufficient.
   
• The Court of Appeal confirmed that the "some basis in fact" standard is a low evidentiary threshold focused on the form of the action, not the merits, and does not require proof that the alleged conduct actually occurred.
   
• Conflicting expert evidence — including competing opinions on whether U.S. opioid marketing strategies were transferable to Canada — was identified as a merits issue to be resolved at trial, not at certification.

Facts of the case

The class proceeding at issue was brought by His Majesty the King in Right of the Province of British Columbia, on behalf of itself and other federal, provincial, and territorial governments, against McKinsey & Company, Inc. United States and McKinsey & Company Canada (together, McKinsey). The action sought to recover healthcare, pharmaceutical, and treatment costs related to opioids on behalf of class members — a subclass of governments that had enacted legislation to recover damages and healthcare costs arising from the opioid epidemic in Canada.

The Province alleged that McKinsey, acting as a management consultant, provided advisory services to three opioid manufacturers — Purdue Pharma LP and its related companies (Purdue), Janssen Inc. and its parent company Johnson & Johnson (Janssen), and Endo Pharmaceuticals Inc. and its related companies (Endo) — as well as to one distributor, McKesson Canada Corporation and its parent company McKesson Corporation (McKesson). The Province alleged McKinsey's consulting work involved promoting, marketing, and increasing the sale and distribution of opioids in Canada. Specifically, the Province alleged McKinsey designed aggressive campaigns that misrepresented opioids as safe, non-addictive, or less addictive than other painkillers, and that these "Opioid Misrepresentations" were made to medical professionals and the public, contributing to over-prescription and harm to end users. This action was a companion proceeding to a broader class action against pharmaceutical manufacturers and distributors (the Main Action), which had previously been certified.

With respect to Purdue, the Province alleged McKinsey worked with Purdue in the U.S. from 2004 to 2018, and that the tactics McKinsey developed, recommended, and implemented in the U.S. were also designed to be used, and were used, in Canada. Regarding Janssen, the Province alleged McKinsey prepared a report for Johnson & Johnson in 2002 about marketing the drug Duragesic to physicians who were prescribing high amounts of OxyContin, and that those strategies were followed by Janssen in Canada. Claims concerning Endo and McKesson were similarly framed: strategies developed in the U.S. were alleged to have been implemented in Canada through their affiliated Canadian entities.

Certification proceedings below

Justice Brundrett, who was also the case management judge for the Main Action, certified the proceeding at first instance in reasons indexed as 2025 BCSC 1094. He found the Province had shown some basis in fact for each of the certification requirements under s. 4(1)(b)–(d) of the Class Proceedings Act (CPA). The cause of action requirement under s. 4(1)(a) was not in issue, as McKinsey's earlier motion to strike the Province's pleadings had been dismissed and that decision upheld on appeal.

Before the certification judge, McKinsey argued the Province had not established some basis in fact that common issues existed against it for opioid-related work in Canada, contending that any work product McKinsey U.S. prepared for use in the U.S. could not have been adopted in Canada without significant modification. The Province countered that its allegations of agency, common design, and civil conspiracy, together with evidence of McKinsey's corporate integration and its U.S. opioid work, satisfied the evidentiary standard. The judge found some basis in fact to support the proposed common issues, including evidence linking McKinsey's U.S. and Canadian entities through internal documents, a 2014 memo to a Purdue Canada executive, a 2013 "pitch" addressing Canadian growth opportunities, and communications with Janssen in 2008 and 2011 about increasing its opioid portfolio. He noted that McKinsey's evidence through Michael Silber — a former senior partner and head of its Pharmaceutical Medical Product – Americas group from 2009 to 2014 — was limited by personal knowledge constraints, reliance on hearsay, and an unclear scope of document review.

Statutory and legal framework

The certification requirement at issue was s. 4(1)(c) of the CPA, which requires that the claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members. The Province also asserted statutory claims under the Opioid Damages and Health Care Costs Recovery Act, S.B.C. 2018, c. 35 (ORA), which provides a direct cause of action against a manufacturer, wholesaler, or consultant to recover the cost of health care benefits caused or contributed to by an "opioid-related wrong." Common law claims for conspiracy, common design, and breach of s. 52 of the Competition Act, R.S.C. 1985, c. C-34, were also advanced.

Reasoning and analysis

McKinsey raised one ground of appeal: that the certification judge erred in concluding the action met the commonality requirement in s. 4(1)(c) of the CPA. It argued the judge allowed the Province to rely on allegations alone to establish some basis in fact, committing a reversible error in principle. The Court framed the appeal as raising two issues: (1) whether the judge applied the correct test in assessing the "some basis in fact" requirement; and (2) whether he erred in his application of that test in concluding there was some basis in fact that the claims raised common issues.

Writing for the Court, Justice Fisher confirmed that the certification judge applied the correct legal test. The Court reaffirmed that the "some basis in fact" standard is a low threshold focused on the form of the action, not its merits. Consistent with the Supreme Court of Canada's guidance in Hollick v. Toronto (City), 2001 SCC 68, and Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, the question at certification is not whether the claim is likely to succeed but whether it can properly proceed as a class action. The Court adopted the approach set out in the companion Noramco decision, rejecting the two-step framework endorsed in Jensen v. Samsung Electronics Co. Ltd., 2023 FCA 89, under which a plaintiff must demonstrate both that the issue exists and that it is common. Justice Fisher held that the approach in British Columbia is a functional one requiring only a minimum evidentiary foundation supporting the existence of a common issue, without demanding two distinct categories of evidence.

On the second issue — application of the test — the Court found no palpable and overriding error in the certification judge's assessment of the evidence. The Province's claims rested on what the judge accurately described as "expansive allegations of agency, common design and civil conspiracy," including the theory that tactics McKinsey developed, recommended, and implemented in the U.S. were designed to be used, and were used, in Canada. The Court accepted that McKinsey's denial of involvement in opioid marketing in Canada raised a genuine merits dispute, but held that the judge was not required to resolve that conflict at the certification stage. McKinsey's reliance on Mr. Silber's evidence was appropriately treated as non-definitive, given its limitations. The Court also noted that the Province was particularly constrained in the evidence it could produce at this early stage given the nature of the conspiracy and corporate integration allegations, and that issues of group enterprise liability and whether McKinsey provided services directly in Canada were properly left to trial.

Ruling and overall outcome

The Court of Appeal, per Justice Fisher (with Justices Iyer and Warren concurring), dismissed the appeal. The certification judge made no reviewable error in his analysis of the commonality requirement under s. 4(1)(c) of the CPA. The Province, as the respondent, was the successful party. No monetary award was made in this proceeding, as the appeal concerned only the certification of the class action; the substantive claims for healthcare cost recovery remain to be determined at trial.