In The Jean Coutu Group (PJ) Inc. v. British Columbia, 2025 BCCA 80, Justice Lauri Ann Fenlon affirmed a lower court finding that it was arguable that it was foreseeable that the appellants’ opioids could end up in B.C. and that they were part of a common design to encourage opioid consumption.
In 2018, the province of British Columbia filed an action against opioid manufacturers and distributors to recover healthcare costs incurred as a result of British Columbians’ use of opioids.
The province has alleged that the opioid defendants marketed and promoted opioids in Canada as less addictive than they knew them to be, and for conditions they knew the drugs were not effective in treating.
It also alleged that the distributor defendants delivered opioids to pharmacies and hospitals in Canada in quantities they knew or ought to have known exceeded any legitimate market, thereby intensifying the crisis of opioid use, addiction and death in Canada.
Quebec based appellants, Pro Doc Limitee, alleged to be opioid manufacturer and distributor, and its parent company, the Jean Coutu Group (PJC) Inc., alleged to be an opioid distributor, were among the more than 40 defendants named in the class action.
The appellants challenged the court’s territorial competence to hear the claims against them. The business operations of both companies are based in Québec, and neither has an office in B.C.
In order to establish that B.C. has jurisdiction over an action, the plaintiff must show in the first stage of the analysis that one of the connecting factors set out in s.10 of the Court Jurisdiction and Proceedings Transfer Act (CJPTA) exists.
If one of the connecting factors in s. 10 is established at stage one, there is a mandatory presumption of a real and substantial connection between British Columbia and the facts on which the proceeding is based.
In the second stage of the analysis, a party may attempt to rebut the presumption of jurisdiction by establishing facts that demonstrate there is only a weak relationship between the subject matter of the litigation and the forum.
In British Columbia v. Pro Doc Limitee, 2023 BCSC 662, a case management judge found the proceedings against the appellants concerned restitutionary obligations that arose in B.C., and a tort committed in B.C.
The judge cited Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, in which the Supreme Court held that a forum in which a plaintiff suffers damage is entitled to exercise judicial jurisdiction over foreign manufacturers where it is reasonably foreseeable that consumers in that jurisdiction may be harmed by the manufacturer’s product.
The case management judge also held that the appellant had not discharged their heavy burden to set aside the mandatory presumption created by the establishment of the presumptive connecting factors.
The appellants challenged the decision, arguing, among other things, that it was not foreseeable that their opioids could end up in B.C.
They submitted that the affidavit evidenced tendered by the province suggested that only about $124 worth of their opioids were actually dispensed in B.C.
They also noted that their opioid sales were closely regulated, tracked and distributed to franchises in Québec, with a few going to New Brunswick and Ontario.
Justice Fenlon found the lower court judge had not simply looked to the evidence that some Pro Doc opioids had been dispensed in B.C. as supporting foreseeability.
She noted that Pro Doc’s webpage invited B.C. medical professionals to log into a section of the webpage not available to the public by using their B.C. registration number and that the relevant opioids were included on B.C. PharmaCare formulary.
“[H]e considered the totality of the evidence and the pleadings together, finding there was an arguable case to be made on the basis of the pleadings and the following evidence that distribution into B.C. was foreseeable,” Justice Fenlon wrote.
She added that the case management judge had noted that even if the opioids were only directly distributed to wholesalers or pharmacies in Québec, there was still a good arguable case that it was reasonably foreseeable that drugs could find their way indirectly to consumers in B.C. or be consumed in B.C.
The appellants also challenged the case management judge’s finding that there was an arguable case that they were engaged in a common design with other defendants to overcome resistance in the medical community to the use of prescription opioids in order to expand the market for opioids.
They argued, among other things that the case management judge misapprehended and misapplied the test for common design and that there were no pleadings or evidence supporting the existence of a communication coordinating an intention to engage in a tort with others.
The case management judge had relied in part on evidence that Jean Coutu facilitated presentations by Dr. Aline Boulanger, who was paid to present at Jean Coutu seminars and who encouraged more liberal prescribing of opioids.
The appellants argued that the presentation made by the Boulanger was a general, neutral examination of issues surrounding the treatment of chronic pain, with specific reference to practice in Québec, not B.C.
Justice Fenlon noted that Boulanger had previously published an article in which she described opioids as “generally safe and effective,” and described other pain relief drugs as having “significant safety concerns”.
The judge further noted that Jean Coutu was also alleged to have engaged in information-sharing with other defendants, which enabled them to promote sales of opioids in certain markets, thus intensifying the opioid crisis.
The court upheld the case management judge’s finding that there was an arguable case that the appellants engaged in some of the actions alleged to constitute common design.
The appellants also argued that the case management judge had erred in stage two of the s.10 analysis.
They argued that the judge was required to give more weight to the absence of a business presence in B.C. and the minor role played by the appellants in the B.C. opioid market.
The court observed that the case management judge had found the evidence of executives from both companies to be flawed as they had made “conclusory and broad statements about the companies’ actions that were outside the scope of their knowledge.”
Justice Fenlon noted that the appellants’ affiants had not attached business records to support their evidence, and upheld the case management judge’s conclusions on the second stage of the s.10 analysis.
The court dismissed the appeal.
Justices Janet Winteringham and Margot Fleming concurred in the decision.
Counsel for the province, Reidar Mogerman of CFM Lawyers, said that the decision was consistent with well-established law.
“We look forward to taking the case to trial on the merits,” he told Law360 Canada in an email.
Katie Duke of CFM Lawyers and Avichay Sharon of Branch MacMaster also acted as counsel for the province.
Counsel for the Jean Coutu Group (PJC) Inc. were Geoffrey Shaw, Derek Ronde and Jordanna Cytrynbaum of Cassels Brock & Blackwell.
They were not immediately available for comment.
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