Law360 Canada (May 28, 2026, 5:02 PM EDT) -- The B.C. Court of Appeal has quashed an appeal by Janssen Inc. and Johnson & Johnson in the province’s opioid health-care cost recovery class action, ruling that orders concerning discovery from class members are not appealable as of right.

In Janssen Inc. v. British Columbia, 2026 BCCA 233, released on May 27, Justice G. Bruce Butler rejected arguments that the general appeal provisions in the Court of Appeal Act conferred a right of appeal from an order denying leave to seek discovery from class members under s. 17(2) of the Class Proceedings Act (CPA).

“That subsection provides that class member discovery orders require a party to seek leave from a judge of the Supreme Court of British Columbia … It defies logic for those discretionary orders to then be appealable as of right to this Court,” the judge wrote.

The orders in question arose in a class action brought by British Columbia against opioid manufacturers, marketers and distributors seeking recovery of health-care, pharmaceutical and treatment costs associated with prescription opioids dating back to 1996.

The action was certified as a class proceeding in British Columbia v. Apotex Inc., 2025 BCSC 92.

In April 2025, the parties agreed that document production would occur in accordance with a document exchange protocol.

The appellants, Janssen Inc. and Johnson & Johnson, were one of three groups of defendants that brought applications for document production. Only Janssen’s application was brought under s. 17(2) of the CPA.

The appellants’ notice of application sought the listing and production of documents from class members. Applications by other defendants concerned the Province as representative plaintiff.

A chambers judge denied Janssen leave to obtain document discovery against the class members, exercising his “discretion against ordering production based on s. 17 of the CPA.”

The judge found that document production was not warranted because the request was vague and overbroad.

In March 2026, Janssen filed its notice of appeal from the order. It did not seek leave to appeal.

Other defendants whose applications were dismissed sought leave to appeal. The Province took the position that Janssen also required leave to appeal.

In correspondence with the registrar, Janssen said it did not intend to seek leave and maintained that no leave was required because its application had been brought under s. 17 of the CPA.

The Province argued that the court had no jurisdiction to hear the appeal because orders concerning class member discovery under s. 17(2) are not among the orders listed in s. 36 of the CPA, which sets out the orders appealable under the statute.

Janssen, meanwhile, submitted that s. 36 does not limit any existing right of appeal. The appellants argued that the general right of appeal is conferred by s. 13(1) of the Court of Appeal Act and is restricted only where an order has been designated a “limited appeal order.”

They submitted that they had an appeal as of right because no orders under the CPA have been designated limited appeal orders.

Justice Butler cited Nippon Yusen Kabushiki Kaisha v. Ewert, 2023 BCCA 142, in which the B.C. Court of Appeal held that s. 36(1) must be interpreted in a way that gives it legal effect when read in conjunction with s. 13 of the Act.

The judge noted that Janssen’s argument that s. 36 is intended to be “permissive” rather than restrictive in terms of matters that may be appealed contradicted both Ewert and the text of the relevant statutes.

“Section 13(3) clearly limits appellate jurisdiction when another enactment of British Columbia or Canada provides for a limited right of appeal by stating that the other ‘enactment prevails’,” the judge wrote.

The court further observed that s. 17(2) provides that a party must seek leave from a B.C. Supreme Court judge for a class member discovery order.

“I accept the Province’s contention that it would be illogical to find that a party has a right of appeal from orders made under s. 17(2),” the judge wrote.

Justice Butler concluded that no appeal lay as of right under s. 13 of the Act because the order was made under s. 17(2) of the CPA, a matter specifically addressed in the CPA but not listed as an appealable order in s. 36(1).

The judge noted that Janssen could have brought an application for leave to appeal, as other defendants had done, but chose not to do so.

“While I am reluctant to quash the appeal as a nullity when Janssen could have brought an application for leave to appeal, it was given every opportunity to bring forward an application. It chose not to. Accordingly, I find that Janssen’s notice of appeal is a nullity,” the judge wrote.

The court quashed Janssen’s appeal.

Counsel for the appellants were Karine Russell, Robin Reinertson, Joshua Hutchinson and Gordon McKee of Blake, Cassels & Graydon LLP.

Counsel for B.C. were Jen Winstanley, Chelsea Hermanson and Declan O'Briain of CFM Lawyers LLP.

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