The class was defined as all persons who purchased and consumed Safe Supply drugs believing they were safe or safer than illegal drugs because they originated from the program, regardless of whether that was the case. Family members of these individuals were also included.
The province initiated the program in the belief that “individuals with opioid use disorder at high risk of overdose or poisoning would receive ‘safe’ hydromorphone and other drugs described by Canada and the province as ‘safe,’” according to the statement of claim.
Drugs were prescribed by a physician or nurse practitioner, and the program was first limited to hydromorphone and sustained-release oral morphine. The programs were made permanent and expanded to include additional drugs, including fentanyl. The statement of claim said the program now provides an unlimited supply of government-funded hydromorphone through various clinics.
“The Class does not know the origin of the terms ‘safe,’ ‘safe supply,’ ‘safer supply’ or ‘prescribed safer supply’ to describe the Safe Supply Drugs,” the claim read. “The terms were eventually used by Canada and the Province to advertise, promote or otherwise inform the public about the Safe Supply Drugs and how those Safe Supply Drugs could and can be accessed by members of the public.”
It was alleged that Canada and B.C. made negligent misrepresentations by their use of the terms ‘safe,’ ‘Safe Supply’ and ‘Safer Supply’ to describe the drugs and failed to consider the harm that could be caused by the program. It was said that the term was understood to mean that users would not suffer an addiction or an overdose.
“Canada and the Province knew or ought to have known that the Misrepresentations would lead Class Members into believing the Safe Supply Drugs were safe. Canada and the Province were at all times in a fiduciary and/or a special relationship with Class Members.”
The drugs were purchased by individuals who were then diverting some or all of the prescribed opioids to other parties, including youths, those who do not use opioids and those on opioid treatment programs, the claim said. They were prescribed to patients who then released those drugs into the community with little oversight over where they went, leading to an increased supply of the drugs. The governments had acknowledged in a report that the drugs were being diverted, said the claim.
It alleged that after an article was published listing the advantages of diversion, including “[moderate] effects from … illegal drug use,” the two levels of government adopted a failed policy of promoting diversion to, among other things, displace other illicit drugs including fentanyl.
The proposed plaintiffs, Kamilah Sword and Amelie North, first used the drugs, believing they were safe, when they were 14 years old. Kamilah became addicted and variously consumed the drugs until her death that year. She was said to have purchased one hydromorphone pill for $5, which she later consumed and overdosed on. Amelie continues to use the drugs and is undergoing rehabilitation. According to the claim, they both relied on the alleged negligent misrepresentations.
“The Province and Canada were aware or recklessly chose to ignore the diversion to the Class Members,” the claim said. “Alternatively, the Province and Canada were wilfully blind to the diversion of the Safe Supply Drugs affecting the Class Members.”
It added that the diversion of Safe Supply Drugs to class members represented an operational failure of the government program, alleging that the plaintiffs and the class members would not have been able to access the drugs if it were not for the program. The claim asserts that the governments did not contemplate that the drugs would reach those who were not already drug users.
Other defendants include the clinics prescribing the drugs, a Dr. John Doe and nurses staffing the clinics, the Vancouver Coastal Health Authority and the Vancouver Island Health Authority. They were alleged to have breached the standard of care by overprescribing, knowing some drugs would not be consumed by patients and failing to implement sufficient safeguards and adhere to practice guidelines.
The relief being sought is general damages, special damages and special damages in trust, and punitive and exemplary damages, all to be determined, among other relief.
The proposed class action has yet to be certified as the allegations have not been weighed on the merits by the court.
The plaintiffs are being represented by Wilson Laycraft LLP.
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