The appeals concern the certification of the national class action brought by B.C. on behalf of other federal, provincial and territorial governments to recover health care, pharmaceutical and treatment costs related to the opioid crisis from 1996 onward.
Defendants in the class action include Apotex Inc., Johnson & Johnson, Purdue Pharma and Shoppers Drug Mart among other pharmaceutical manufacturers, wholesalers and distributors.
In Noramco LLC v. British Columbia, 2025 BCCA 161, released on May 14, registrar Timothy Outerbridge of the B.C. Court of Appeal noted that submissions before the court would be unacceptably lengthy if every party to the 17 appeals were to file factums as prescribed under the court’s rules.
“If every party filed factums as prescribed under the Rules, there would be an unacceptably lengthy 595 pages of submissions before the Court,” he wrote.
The court noted that appeals brought by the parties arose from the certification of the class action and an application by certain defendants to dismiss the action for jurisdictional reasons.
The registrar noted that factums do not comprehensively set out a party’s entire argument in precise detail and that parties are expected to focus arguments, write concisely and give the court and the parties an outline of the arguments to be advanced.
He noted that in the case of large, multi-party appeals, the appropriate factum length and its division between parties focuses on the potential issues in dispute, with the added requirement to eliminate inefficient overlap or repetition.
“Naturally, this breeds an expectation that similarly aligned parties and their counsel will work together, potentially nominating certain counsel to take the lead on drafting factums on principal issues or jointly coordinating their submissions to eliminate duplication,” the registrar wrote.
He added that this expectation would inevitably require parties to consider their grounds of appeal earlier than they might otherwise and to communicate proactively with similarly aligned parties.
The registrar highlighted the chambers judge’s observation that every aspect of certification had been strongly disputed, noting that the defendants had argued that the different issues raised in the individual claims against them “complicated the picture” so much that the action could not be meaningfully decided.
He noted that the issues included differences among opioids, jurisdictions and the business activities and practices of the various defendants.
The court observed that the interests of the appellants were broadly aligned in three groups; manufacturers, generic manufacturers and distributors.
The appellants proposed to file a common issue factum, a specific certified issues factum and a preferable procedure factum, each of 30 pages or fewer.
They further proposed that Quebec-based appellants Pro Doc Limitée and The Jean Coutu Group (PJC) Inc. file a factum of 30 pages or fewer on their challenges related to the applicability of Quebec civil law and other related matters.
The appellants also proposed that they be permitted to file two other lead factums of 15 pages or fewer each as well, and that certain other individual appellants each be permitted to file one 10-page factum dealing with more specific issues applicable to each of them.
The registrar noted that the appellants’ proposal would result in a maximum of 295 pages.
He found that there should instead be a joint lead factum of 45 pages with an additional 30 pages for jurisdictional issues raised by certain appellants.
The registrar, however, agreed that additional space beyond these factums was needed for appellants to raise other grounds of appeal, unique to their circumstances.
The registrar allowed each appellant an additional five-page factum to address those individual issues, except for three already aligned appellants who would get one five-page allocation.
He also allowed the appellants to file a 20-page reply factum to be prepared jointly, making the total length of the appellants’ factums 195 pages “at an absolute maximum.”
The court ordered that the respondent may have the same page allocation in response.
“I would reiterate that the allocation made here is exceptional given the size and complexity of this appeal and the number of parties,” the registrar wrote.
The registrar also noted that he had considered and rejected a proposal by the appellants that the court adopt a more conservative approach, allowing for a set of lengthier factums to be filed and subsequently reduced in size by further order.
“With respect, that does not seem an efficient proposal and may risk imperiling the progress of these appeals,” he wrote.
“I am convinced, despite the appellants’ arguments to the contrary, they will be able to properly advance these appeals in the allocation of space provided,” the registrar wrote.
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