BC Court of Appeal puts end to public nuisance claims in product liability
In Valeant Canada LP/Valeant Canada S.E.C. v. British Columbia, 2022 BCCA 366, the BC Court of Appeal struck a public nuisance claim against manufacturers and distributors of prescription opioid medication. The Court ruled that recognizing public nuisance would open the door to claims regulated by the law of negligence. Such a radical extension of the law could only be made by the legislature; not the courts.
Public nuisance requires a plaintiff to prove a defendant unreasonably interfered with a public right. Typically, the plaintiff is a government entity, but private entities may also advance public nuisance claims in certain circumstances. Unlike typical claims against manufacturers and distributors based in negligence, a public nuisance claim does not require the plaintiff to prove breach of a standard of care.
Inspired by American attempts, Canadian plaintiffs have advanced public nuisance claims against product manufacturers and distributors in a few class actions.
Valeant was an appeal from an application to strike pleadings in a proposed class action by the Province of British Columbia. The Province is seeking to certify a class action on behalf of Canadian governments against manufacturers and distributors in the pharmaceutical industry. The Province’s central claim is under the special-purpose Opioid Damages and Health Care Costs Recovery Act, S.B.C. 2018, c. 35. But the Province also pled standalone claims, including public nuisance.
In public nuisance, the Province alleged that (i) the defendants manufactured and distributed opioid medicines, (ii) the defendants created the opioid epidemic, (iii) the opioid epidemic was a public nuisance, and (iv) the opioid epidemic caused the Province and other governments to bear health, social, and other costs. The defendants applied to strike the claim; the lower court refused.
The Court of Appeal struck the public nuisance claim for two main reasons.
First, public nuisance claims must be grounded in interference with property rights. The Province’s claim was not. While some public nuisance judgments refer to the protection of public health, safety, and the like, successful public nuisance claims involve interference with public property or resources in specific locations. A plaintiff cannot simply turn a widespread public issue into a public nuisance claim. Even if conduct affects many people, a public nuisance claim must be grounded in the interference with public property or tangible resources (e.g., air and water).
Second, the Province’s theory of public nuisance was radical, not an incremental extension of common law principles. Only a legislature could implement it—and BC had already created new statutory claims under the Opioid Damages and Health Care Costs Recovery Act. The Court of Appeal found that allowing the Province’s public nuisance claim to proceed risked transforming public nuisance into “the emperor of all wrongs” and obliterate existing products liability law (para. 204). As public nuisance claims do not depend on fault, the scope for manufacturers’ and distributors’ liability would increase if public nuisance were a viable claim.
In Ontario, the Superior Court also recently struck a public nuisance claim against a weapons manufacturer for similar reasons.
McCarthy Tétrault LLP acted for Paladin Labs Inc., Endo Pharmaceuticals Inc., Endo International PLC, and Endo Ventures Ltd. on the appeal
Valeant Canada LP/Valeant Canada S.E.C. v. British Columbia, 2022 BCCA 366
Docket: CA48049; CA48050; CA48051; CA48052; CA48053; CA48054; CA48055; CA48056; CA48057; CA48058; CA48060; CA48062; CA48067
Date of Decision: November 2, 2022