Case: Lac La Ronge Indian Band v. British Columbia, 2024 BCCA 58 (CanLII)

Keywords: opioid crisis; application to quash

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Synopsis:

The Province of British Columbia commences a class action as the proposed representative plaintiff on behalf of the federal, provincial, and territorial governments of Canada seeking to recover healthcare costs related to the opioid crisis against Purdue Canada (i.e., Purdue Pharma, Purdue Pharma Inc., and Purdue Frederick Inc.). (See para. 7). Purdue Canada and the class enter into a settlement. The Province of British Columbia then seeks an order certifying the action as a class proceeding for settlement purposes only and approval of the settlement under the Class Proceedings Act, R.S.B.C. 1996, c. 50. (See para. 2).

As noted by the Court of Appeal herein, Lac La Ronge Indian Band is not a party in the action, a class member, or a creditor of Purdue Canada. The Band seeks leave to intervene and to be granted party status to oppose the approval of the settlement. For the Band, the settlement is unfair to “those affected by it”; the settlement approval process should be “paused pending further disclosure by the Province and Purdue Canada”. (See para. 3).

The Case Management Judge (Brundrett J.) dismisses the Band’s application for leave to intervene and approves the settlement. The Band appeals both decisions. In response, the Province of British Columbia brings an application to quash the appeals pursuant to s. 20 of the Court of Appeal Act, S.B.C. 2021, c. 6. (See para. 4).

The Court of Appeal (Dickson, Marchand, and Butler JJ.A.) quashes the Band’s appeals. (See para. 6).

Importance:

There is a fascinating procedural history in this case, as outlined in detail by the Court of Appeal at paras. 7-42. Very briefly, the Province of British Columbia alleges that Purdue Canada, who are the manufacturers or distributors of opioids, committed a series of actionable wrongs in connection with the ongoing opioid crisis. The Opioid Damages and Health Care Costs Recovery Act, S.B.C. 2018, c. 35 defined certain “opioid-related wrongs”, which the Province – on behalf of every Canadian government – claims Purdue Canada is liable for from 1996 to the present and into the future. (See para. 7). Other proceedings related to the opioid crisis are ongoing elsewhere in Canada, including a proposed class action filed by the Band in Saskatchewan. (See para. 9).

Section 20(2)(a) of the Court of Appeal Act provides that the Court of Appeal may “quash an appeal on the basis that the court lacks jurisdiction” and Rules 60(1) and (4) provide a means to quash an appeal before it is heard. (See paras. 46-47). In this case, the Court of Appeal finds “no good reason” to wait before adjudicating on the procedural status of the Band’s proposed appeal – “it is appropriate to determine the application to quash at this preliminary stage”. (See para. 58).

The Court of Appeal noted that, as a statutory court, its jurisdiction to entertain any appeal, including the Band’s, must be rooted in statute – here, the Courts of Appeal Act and the Class Proceedings Act. (See para. 59).

To “enjoy a right of appeal”, says the Court of Appeal, a person or entity like the Band herein “must be a party to the proceeding that produced the order”. The Court of Appeal referred to the reasons of Saunders J.A. in Cambridge Mortgage Investment Corporation v. Matich, 2014 BCCA 377, as authority for this proposition. (See para. 61).

According to the Court of Appeal, an intervenor is not a party to a proceeding. Even where a person or entity is granted intervenor status in the court below, “they have no right to bring an appeal”. Similarly, “having an interest in the subject matter of an order and making submissions in the court below” does not confer standing to appeal. (See para. 62; The Law Society of British Columbia v. The Society of Notaries Public of British Columbia, 2014 BCCA 233 at para. 8; Goldberg v. Law Society of British Columbia, 2022 BCCA 388 at para. 22; Coburn and Watson’s Metropolitan Home v. Home Depot of Canada Inc., 2019 BCCA 308 at para. 9).

The Court of Appeal referred to “one additional avenue of appeal” for the Band, as discussed by Harris J.A. in the context of the Coburn decision. Section 24(2)(c) of the Court of Appeal Act provides that, on an appeal, the Court of Appeal may “exercise any original jurisdiction that may be necessary or incidental to the hearing and determination of an appeal”; s. 24(3)(b) permits the Court to exercise those discretionary powers “in favour of any person, whether or not the person is a party to the appeal”. (See para. 66).

As described by the Court of Appeal, there is a test for invoking this jurisdiction. The key question is whether the non-party would have beena proper, if not necessary, party to the action. The Court also listed the following factors for consideration:

    • can the non-party show their interest was not represented at the proceeding;
    • can the non-party show they have an interest that will be adversely affected by the decision;
    • can the non-party show they are or can be bound by the order;
    • can the non-party show they have a reasonably arguable case; and
    • are the interests of justice served by granting the non-party leave to appeal? (See para. 67; St.C. v. S.C., 2017 YKCA 7 at para. 26, citing Société des Acadiens v. Association of Parents, 1986 CanLII 66 at pp. 594–595).

The Court of Appeal observed that what is ultimately required to invoke this jurisdiction are circumstances that go beyond the inherent procedures of the Class Proceedings Act or orders that arguably amount to a miscarriage of justice. (See para. 68). In this case, the Court of Appeal determined that, while the Band had standing to appeal the order dismissing its application for leave to intervene, the Band is “clearly not a party” to the settlement order it sought to appeal and, as a consequence, lacks standing to appeal that order. (See para. 77; emphasis in original).

Regarding the Band’s application for leave to intervene, the Court of Appeal noted the deferential standard of review applicable to discretionary orders, such as Brundrett J.’s order. For the Court of Appeal, “[t]here is no prospect that the Intervention Order will be overturned on appeal”. (See paras. 79-80). The Court of Appeal agreed with the Province of British Columbia that the issues raised by the Band were moot; and that there is an alternative forum available for the Band to express its concerns – namely, the proceedings described by the Court of Appeal at paras. 14-19 under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36. (See paras. 84-85).

Counsel for the Appellant: Casey Churko (Merchant Law Group LLP, Regina)

Counsel for the Respondent, His Majesty the King in right of the Province of British Columbia: Reidar Mogerman, K.C. and Chelsea Hermanson (Camp Fiorante Matthews Mogerman LLP, Vancouver)

Counsel for the Respondents Purdue Pharma Inc. and Purdue Frederick Inc.: Cindy Clarke, Shelby Liesch, and Adrian Pel (Borden Ladner Gervais LLP, Toronto), Barry Glaspell (Glaspell Class Actions, Toronto)

Counsel for the Respondents, Valeant Canada LP, Valeant Canada S.E.C. and Bausch Health Canada Corporation: Mitchell Bringeland (Blakes, Vancouver)

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