Katie I. Duke

The appellants, pharmaceutical manufacturers and distributors of opioid products, challenged the constitutional validity of s. 11 of British Columbia's Opioid Damages and Health Care Costs Recovery Act, which authorizes British Columbia to act as representative plaintiff in a class action on behalf of all federal, provincial, and territorial governments in Canada unless they opt out.

The majority held that s. 11 is intra vires, characterizing its pith and substance as a procedural mechanism under s. 92(14) of the Constitution Act, 1867 (Administration of Justice in the Province) that facilitates intergovernmental cooperation without creating or altering substantive rights.

The majority further found that s. 11 maintains a meaningful connection to British Columbia and respects the legislative sovereignty of other governments.

Côté J. dissented, finding that the pith and substance of s. 11 engages and derogates from property and civil rights of extra-provincial governments under s. 92(13), that no meaningful connection exists, and that ss. 11(1)(b) and (2) should be severed as ultra vires.

Class members who are not representative plaintiffs have no direct right of appeal from an order approving a settlement in a certified class action.

The Court of Appeal affirmed that the decision in Dabbs v. Sun Life Assurance Co. of Canada remains good law and has not been superseded by subsequent decisions.

A settlement approval order is neither a judgment on common issues nor a determination of aggregate damages, and therefore class members cannot seek leave to appeal under section 30(5) of the Class Proceedings Act.

Permitting individual class members to appeal settlement approvals would introduce uncertainty into settlement negotiations, undermine the authority of representative plaintiffs and class counsel, and impede the resolution of class actions.

Two sets of appellants (manufacturers of optical disc drives) appealed the certification of a price-fixing class proceeding in British Columbia.

The majority held that the discoverability rule applies to extend the two-year limitation period in s. 36(4)(a)(i) of the Competition Act, that fraudulent concealment can toll a limitation period without requiring a special relationship between the parties, that umbrella purchasers (persons who bought from non-defendant manufacturers) have a cause of action under s. 36(1)(a), that s. 36(1) does not bar concurrent common law and equitable claims, and that a plaintiff's expert methodology need only establish that overcharges reached the indirect-purchaser level to certify loss as a common issue.

Côté J. dissented in part, finding that the discoverability rule does not apply to s. 36(4)(a)(i) and that umbrella purchasers have no cause of action under s. 36(1).

Both appeals were dismissed.