Executive Summary: Key Legal and Evidentiary Issues

• Fifteen appeals were brought by pharmaceutical manufacturers, generic manufacturers, distributors, and related companies against the certification of a proposed class action.
   
• Certification had been granted by a case management judge who found some basis in fact for numerous common issues concerning the national opioid crisis.
   
• Appellants argued the judge applied the wrong test for commonality by failing to require defendant-specific evidence for each common issue.
   
• Jurisdictional challenges were raised separately by one appellant, LPG Inventory Solutions, disputing subject matter jurisdiction and arguing British Columbia was not a convenient forum.
   
• Preferability was contested on the basis that individual causation issues arising from the rebuttable presumption in the Opioid Damages and Health Care Costs Recovery Act would predominate over common issues.
   
• Deference to the certification judge's findings ultimately proved decisive, and the Court of Appeal dismissed all appeals on commonality, preferability, and jurisdiction.
   

Facts of the case

The Province of British Columbia brought a proposed class action on behalf of Canadian federal, provincial, and territorial governments against a large number of pharmaceutical manufacturers, generic manufacturers, distributors, and related corporate entities. The Province sought to recover health care costs incurred in responding to harms allegedly caused by the overprescription of opioid medications. It alleged the defendants engaged in wrongful conduct by promoting opioid medications, principally for the treatment of chronic pain, for conditions the drugs were not suitable to treat. The defendants were grouped into three categories: Manufacturer Defendants, Generic Manufacturers, and Distributor Defendants, each alleged to have played a different role in contributing to the opioid crisis. A case management judge, acting as the certification judge, certified the proposed class action, including numerous common issues, in reasons totalling 760 paragraphs (British Columbia v. Apotex Inc., 2025 BCSC 92). Fifteen separate appeals were brought from that certification order, with dockets ranging from CA50458 through CA50486. One appellant, LPG Inventory Solutions, also raised jurisdictional objections to British Columbia hearing the claims against it. The appeals were heard together in Vancouver from December 1 to 5, 2025, before Chief Justice Marchand and Justices Harris and Iyer, with judgment rendered on June 24, 2026.

Policy and legislative provisions at issue

Central to the appeal was the Opioid Damages and Health Care Costs Recovery Act, S.B.C. 2018, c. 35 (the ORA), which the Province relied on in part to found its claim. The ORA creates a direct cause of action allowing government Crowns to recover the cost of health care benefits caused or contributed to by an "opioid-related wrong," and under section 11 permits the Province to bring an action on behalf of other consenting Canadian Crowns. Section 3(4) of the ORA contains a rebuttable causation presumption, allowing a defendant's share of liability to be reduced or readjusted where it proves, on a balance of probabilities, that its breach did not cause or contribute to the relevant opioid use, exposure, or harm. The appellants argued the certification judge misunderstood how this presumption operates and thereby underestimated the scope of individual issues that would remain after a common issues trial. The Class Proceedings Act, R.S.B.C. 1996, c. 50 (the CPA), governed the certification criteria generally, including the requirements of commonality under section 4(1)(c) and preferability under section 4(1)(d) and its enumerated factors in section 4(2). LPG's jurisdictional challenge engaged the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, which distinguishes subject matter competence from territorial competence, as well as section 9(1) of the Supreme Court Act and section 21(1) of the Crown Liability and Proceedings Act, both of which LPG argued limited the court's subject matter jurisdiction over claims not connected to British Columbia.

Reasoning and analysis

On commonality, the Court rejected the appellants' contention that the judge erred by failing to apply a settled two-part test requiring proof that each common issue existed against each individual defendant before assessing whether it was common across the class. The Court held the debate over a one- or two-part test was a distraction, and that the real question was whether the evidentiary threshold of "some basis in fact" had been met, a low threshold satisfiable by inference and expert evidence rather than defendant-specific proof. Reviewing the extensive expert evidence, including reports from Dr. Virani, Dr. Perri, Dr. Anis, and Dr. Tamblyn, the Court concluded this evidence provided some basis in fact for treating opioids as a fungible class with common characteristics, for common marketing practices across the industry, and for common design allegations. The Court found the judge had properly treated the appellants' more specific evidentiary demands as merits arguments reserved for trial, not certification. Differences between jurisdictions, between categories of defendants, and among specific defendants such as Joddes Limited and Noramco were held not to undermine certification, since individual issues could be addressed at a later individual issues stage. On preferability, the Court found the judge did not err in concluding common issues would "overwhelm" individual issues, even accounting for the rebuttable causation presumption under section 3(4) of the ORA, and that predominance of common issues is not a strict requirement for a class proceeding to be preferable. The judge's reliance on judicial economy, informed by the objectives of the ORA as explained in Sanis Health Inc. v. British Columbia, 2024 SCC 40, and his concerns about delay and duplication if parallel individual actions proceeded across provinces, were also upheld. On jurisdiction, the Court agreed with the certification judge that subject matter jurisdiction and territorial jurisdiction are distinct concepts, that section 9(1) of the Supreme Court Act does not oust subject matter jurisdiction based on territorial connection, and that LPG had not shown Ontario was clearly a more appropriate forum under the forum non conveniens analysis in section 11 of the CJPTA.

Ruling and overall outcome

The Court of Appeal for British Columbia dismissed all of the appeals. It held the certification judge made no reviewable error in finding some basis in fact to certify the common issues, in concluding a class proceeding was the preferable procedure, or in rejecting LPG's jurisdictional challenge based on subject matter competence and forum non conveniens. The successful party on the appeals was the Respondent, His Majesty the King in Right of the Province of British Columbia, with the certification order made below left undisturbed. As this decision concerns the dismissal of certification appeals rather than a final determination of liability or damages, no monetary award, cost order, or damages figure was addressed or specified in these reasons.