By Vanessa Gruben
and Louise Bélanger-Hardy
University of Ottawa
The 10 provincial governments recently accepted a class-action settlement with Purdue Pharma, the maker of OxyContin. The settlement concerns the misleading claims Purdue Pharma allegedly made to physicians about the addictive nature of the drug. These claims may have contributed to Canada’s epidemic of opioid addiction.
The settlement of $20 million, including $2 million shared by the provinces, is widely considered to be insufficient to address the costs associated with this epidemic. If all courts approve the settlement, as an Ontario court did last month, Canadians will be responsible for covering the mounting costs associated with opioid addiction.
So why settle?
One reason the provinces have accepted this inadequate settlement is because they were lumped into a class-action lawsuit brought by a group of Canadians addicted to OxyContin.
Although it may be too late to change the outcome in this case, we propose two solutions to increase pharmaceutical manufacturers’ accountability to Canadians and their governments. Indeed, if provincial governments have more latitude to sue and patients have easier access to the courts, the Canadian legal climate may more efficiently deter drug manufacturers from making unfounded claims about their products.
The first proposal is to pass provincial legislation across the country giving governments legal authority to bring action against pharmaceutical companies (or drug manufacturers) to collect hospital, medical and other costs resulting from illnesses related to a company’s actions.
The provincial governments can look to the provincial tobacco recovery laws for guidance. Those laws allow a provincial government to collect hospital, medical and other costs resulting from tobacco-related illnesses such as cancer, heart disease and stroke. The laws set out a number of evidential and procedural rules facilitating recovery of compensation for such costs. For instance, they can provide for a reverse burden of proof so that it’s up to the defendant manufacturer to prove that its actions didn’t give rise to the disease for which the province claims expenditures.
Although certain aspects of these laws would have to be modified, the key principle would be the same: the province could directly start a legal action to recover the health-care costs related to the wrongful actions of drug manufacturers. The Supreme Court of Canada confirmed the constitutionality of tobacco recovery laws in 2005.
The second proposal is to make it easier for more Canadians to succeed in class-action lawsuits. Class actions allow claimants to join to sue a party and, as a result, reduce individual litigation costs. Quebec, the country’s most progressive province regarding consumer protection, has made class actions more accessible by lowering the burden imposed on claimants who wish to bring a suit for harm they’ve suffered. Unlike the common law provinces, Quebec’s procedural rules make it easier for claimants to achieve class-action status. Claimants need only demonstrate that they have an arguable case and it’s assumed that the facts they allege are true.
There’s a strong history of successful class actions in Quebec. Indeed, a Quebec court recently awarded $15 billion in damages to members of two class actions launched against the tobacco industry for their failure to warn consumers about the health effects of their products.
What’s needed across Canada is a legal regime that has real consequences for pharmaceutical companies. Until we raise the costs associated with wrongdoing, companies will continue to act with impunity – with real-life consequences. And Canadians are left to pick up the health-care tab.
Vanessa Gruben and Louise Bélanger-Hardy are members of the Centre for Health Law, Policy and Ethics and professors in the Faculty of Law at the University of Ottawa.