Opioid Damages and Health Care Costs Recovery Act, 2019

1 (1) In this Act, “active ingredient” means an active ingredient set out in Schedule 1 to this Act or any other active ingredients prescribed by the regulations made under this Act; (“ingrédient actif”) “consultant” means a person who provides advisory services, (a) to a wholesaler in relation to the distribution, sale or offering for sale of opioid products, or (b) to a manufacturer in relation to the sale of active ingredients or opioid products; (“conseiller”) “cost of health care benefits” means, (a) in relation to an action under subsection 2 (1), the sum of, (i) the present value of the total expenditure by the Crown in right of Ontario for health care benefits provided for insured persons as a result of opioid-related disease, injury or illness or the risk of opioid-related disease, injury or illness, and (ii) the present value of the estimated total expenditure by the Crown in r…

2 (1) The Crown in right of Ontario 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. 2019, c. 17, Sched. 2, s. 2 (1); 2023, c. 21, Sched. 9, s. 2. Action not subrogated (2) An action under subsection (1) is brought by the Crown in right of Ontario in its own right and not on the basis of a subrogated claim. 2019, c. 17, Sched. 2, s. 2 (2). Action independent of recovery by others (3) In an action under subsection (1), the Crown in right of Ontario may recover the cost of health care benefits whether or not there has been any recovery by other persons who have suffered damage caused or contributed to by the opioid-related wrong committed by the defendant. 2019, c. 17, Sched. 2, s. 2 (3). Recovery for individuals or on aggregate basis (4) In an action under subs…

2.1 (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. 2023, c. 21, Sched. 9, s. 3. Action not subrogated (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. 2023, c. 21, Sched. 9, s. 3. Action independent of recovery by others (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 any recovery by other persons who have suffered damage caused or contributed to by the opioid-related wrong committed by the defendant. 2023, c. 21, Sched. 9, s. 3. Recovery for individuals or on aggregate basis (4) In an action under subsection (1), the Crown in right of Canada m…

3 (1) In an action under subsection 2 (1) or 2.1 (1) for the recovery of the cost of health care benefits on an aggregate basis, subsection (2) applies if the Crown in right of Ontario or the Crown in right of Canada, as the case may be, proves, on a balance of probabilities, that, in respect of a type of opioid product, (a) the defendant breached a common law, equitable or statutory duty or obligation owed to insured persons who have used or been exposed to or might use or be exposed to the type of opioid product; (b) using the type of opioid product can cause or contribute to disease, injury or illness; and (c) during all or part of the period of the breach referred to in clause (a), the type of opioid product, manufactured or promoted by the defendant, was offered for distribution or sale in Ontario. 2019, c. 17, Sched. 2, s. 3 (1); 2023, c. 21, Sched. 9, s. 4. Presumptions (2) Subjec…

4 (1) Two or more defendants in an action under subsection 2 (1) or 2.1 (1) are jointly and severally liable for the cost of health care benefits if, (a) those defendants jointly breached a duty or obligation described in the definition of “opioid-related wrong” in subsection 1 (1); and (b) as a consequence of the breach described in clause (a), at least one of those defendants is held liable in the action under subsection 2 (1) or 2.1 (1) for the cost of those health care benefits. 2023, c. 21, Sched. 9, s. 5. Joint breach (2) For purposes of an action under subsection 2 (1) or 2.1 (1), two or more manufacturers, wholesalers or consultants, whether or not they are defendants in the action, are deemed to have jointly breached a duty or obligation described in the definition of “opioid-related wrong” in subsection 1 (1) if, (a) one or more of those manufacturers, wholesalers or consultant…

4.1 (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 severally liable with the corporation for the cost of health care benefits, or for damages, caused or contributed to by the opioid-related wrong. 2023, c. 21, Sched. 9, s. 5. Application (2) Subsection (1) applies whether or not an action against the corporation for recovery of the cost of health care benefits, or for damages, has been commenced or concluded. 2023, c. 21, Sched. 9, s. 5. Exception, reasonable diligence (3) A director or officer is not liable under subsection (1) if 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-relat…

5 Statistical information and information derived from epidemiological, sociological and other relevant studies, including information derived from sampling, is admissible as evidence for the purposes of establishing causation and quantifying damages or the cost of health care benefits respecting an opioid-related wrong in an action, (a) brought by or on behalf of a person, in the person’s own name or as a member of a class of persons under the Class Proceedings Act, 1992; (b) under subsection 2 (1); or (c) under subsection 2.1 (1). 2019, c. 17, Sched. 2, s. 5; 2023, c. 21, Sched. 9, s. 6. Section Amendments with date in force (d/m/y) 2023, c. 21, Sched. 9, s. 6 - 04/12/2023

6 (1) No proceeding that is commenced by the Crown in right of Ontario for the recovery of the cost of health care benefits, or for damages, alleged to have been caused or contributed to by an opioid-related wrong, or proceeding described in section 11, is barred under the Limitations Act, 2002 or any other Act, if the proceeding was commenced before December 12, 2019 or within 15 years after that date. 2019, c. 17, Sched. 2, s. 6 (1); 2023, c. 21, Sched. 9, s. 7 (1). Same (1.1) The following proceedings are not barred under the Limitations Act, 2002 or any other Act if they were commenced before the coming into force of subsection 7 (2) of Schedule 9 to the Building a Strong Ontario Together Act (Budget Measures), 2023 or within 15 years after it came into force: 1. A proceeding for the recovery of the cost of health care benefits alleged to have been caused or contributed to by an opio…

7 (1) This section applies to an action for the recovery of the cost of health care benefits, or for damages, alleged to have been caused or contributed to by an opioid-related wrong, other than an action for the recovery of the cost of health care benefits on an aggregate basis. 2019, c. 17, Sched. 2, s. 7 (1). Two or more defendants (2) If the Crown in right of Ontario or the Crown in right of Canada, as the case may be is unable to establish which defendant caused or contributed to the use or exposure described in clause (b) and, as a result of a breach of a common law, equitable or statutory duty or obligation, (a) one or more defendants causes or contributes to a risk of disease, injury or illness by making a type of opioid product available to insured persons; and (b) an insured person has used or been exposed to the type of opioid product referred to in clause (a) and suffers dise…

8 (1) This section does not apply to a defendant in respect of whom the court has made a finding of liability under section 7. Action or proceeding for contribution (2) A defendant who is found liable for an opioid-related wrong may commence, against one or more of the defendants found liable for that wrong in the same action, an action or proceeding for contribution toward the cost of health care benefits or the payment of damages caused or contributed to by that wrong. Action or proceeding may be commenced even if damages or costs not paid (3) Subsection (2) applies whether or not the defendant commencing an action or proceeding under that subsection has paid all or any of the cost of health care benefits or the damages caused or contributed to by the opioid-related wrong. Apportioning liability and contributions: factors (4) In an action or proceeding described in subsection (2), the …

9 The Lieutenant Governor in Council may make regulations, (0.a) prescribing active ingredients for the purposes of the definition of “active ingredient” in subsection 1 (1); (a) prescribing drugs for the purposes of clause (a) of the definition of “opioid product” in subsection 1 (1); (b) respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act. 2019, c. 17, Sched. 2, s. 9; 2023, c. 21, Sched. 9, s. 9. Section Amendments with date in force (d/m/y) 2023, c. 21, Sched. 9, s. 9 (1, 2) - 04/12/2023

10 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 2 (1) or 2.1 (1) arising from an opioid-related wrong, whenever the opioid-related wrong occurred. 2019, c. 17, Sched. 2, s. 10; 2023, c. 21, Sched. 9, s. 10. Section Amendments with date in force (d/m/y) 2023, c. 21, Sched. 9, s. 10 - 04/12/2023

11 If a proceeding that includes a claim for the recovery of the cost of health care benefits, or for damages, alleged to have been caused or contributed to by an opioid-related wrong is commenced by the Crown in right of Canada, the Crown in right of a province of Canada or the Government of a territory of Canada on behalf of a class or proposed class of which the Crown in right of Ontario is a member or proposed member and is ongoing as of December 12, 2019, any such claim made on behalf of Ontario shall be subject to this Act, other than those provisions or portions of this Act constituting procedural law, in accordance with the rules regarding conflict of laws. 2019, c. 17, Sched. 2, s. 11; 2023, c. 21, Sched. 9, s. 11. Section Amendments with date in force (d/m/y) 2023, c. 21, Sched. 9, s. 11 - 04/12/2023

12 (1) The Crown in right of Ontario may, under the Class Proceedings Act, 1992, commence an action under subsection 2 (1) on behalf of a class consisting of, (a) one or more of the Crown in right of Canada, the Crown in right of a province of Canada and the Government of a territory of Canada; and (b) a federal or provincial government payment agency that makes reimbursement for the cost of services that are in the nature of health care benefits within the meaning of this Act. Same (2) Nothing in subsection (1) prevents a member of the class described in that subsection from opting out of the class proceeding in accordance with the Class Proceedings Act, 1992.

13 (1) In subsections (2) and (3), “proceeding” means a proceeding, (a) in relation to an action under subsection 2 (1), including an action commenced under the Class Proceedings Act, 1992, or (b) described in section 11 of this Act. 2019, c. 17, Sched. 2, s. 13 (1). Same (2) Despite any prior agreement that purports to bind the Crown in right of Ontario in relation to compensation arising from an opioid-related wrong, (a) the Crown in right of Ontario is not barred from commencing or participating in a proceeding; (b) the evidence that may be brought against a party to the agreement in the course of a proceeding is not limited; and (c) the liability of, or the amount of compensation payable by, a party to the agreement in relation to an opioid-related wrong that is the subject of a proceeding is not limited. 2019, c. 17, Sched. 2, s. 13 (2). Compensation (3) If an agreement described in…

14 Omitted (provides for amendments to this Act).

15 Omitted (amends, repeals or revokes other legislation).

16 Omitted (provides for coming into force of provisions of this Act).

17 Omitted (enacts short title of this Act).

Schedule 1

1 A product that contains any of the following drugs or active ingredients is an opioid product for the purposes of this Act: 1. Anileridine. 2. Buprenorphine, including but not limited to buprenorphine hydrochloride. 3. Butorphanol, including but not limited to butorphanol tartrate. 4. Codeine, except for those products referred to in subsection 36 (1) of the Narcotic Control Regulations (Canada), including but not limited to codeine phosphate. 5. Diacetylmorphine. 6. Fentanyl, including but not limited to fentanyl citrate. 7. Hydrocodone, including but not limited to hydrocodone bitartrate. 8. Hydromorphone, including but not limited to hydromorphone hydrochloride. 9. Levorphanol. 10. Meperidine, including but not limited to meperidine hydrochloride. 11. Methadone, including but not limited to methadone hydrochloride. 12. Morphine, including but not limited to morphine hydrochloride an…