Commercial Litigation and Dispute Resolution Blog

On March 14, 2024, the B.C. government introduced for first reading Bill 12 – 2024, Public Health Accountability and Cost Recovery Act. Under this proposed legislation, the government has a direct and sweeping right of action to sue a person to recover the cost of health care benefits “caused or contributed to by a health-related wrong.” The Bill is intended to permit the government to recover health care costs that are or may be incurred because of dangerous goods and services in the marketplace, whether or not an individual recipient of health care benefits makes a claim. This may include any good or service that the government can show poses a risk of disease, illness or injury, and that a defendant breached a duty or obligation to a person who might have been exposed to the good or service.

If passed, the Bill permits the government to sue for the present value of the “total expenditure by government for health care benefits” provided to, or that could be reasonably expected to be provided to benefit recipients as a result of the risk of or actual disease, injury or illness, including physical or mental injury or illness, problematic product use, addiction, and “general deterioration of health.” To prove the cause of action, the government need only prove, using population-based evidence and without identifying any individual benefit recipient:

• that a defendant breached a duty or obligation to benefit recipients who used or have been exposed to, or might be exposed to, the product;
• that using or being exposed to the product can cause or contribute to disease, injury or loss; and
• the product was offered for distribution, sale or use in British Columbia.

If the government can prove these three things, the court will presume a defendant is liable for the costs, but can apportion liability based on market share. Otherwise, the burden shifts to a defendant to prove that any breach of duty did not contribute to the use of the good or service, or to the disease, injury or illness.

The legislation is patterned on the Opioid Damages and Health Care Costs Recovery Act, which has led to one of the largest and most complicated intended class actions in Canadian history. It will also apply retroactively – whenever the wrong occurred – and may apply even if a claim for damages based on a health care wrong has been adjudicated or settled in the past.