Opioid Damages and Health Care Costs Recovery Act, 2019, S.O. 2019, c. 17, Sched. 2

• Jurisdiction: Ontario

Opioid Damages and Health Care Costs Recovery Act, 2019

S.o. 2019, chapter 17
Schedule 2

Consolidation Period: From September 25, 2023 to the e-Laws currency date.

Last amendment: 2023, c. 4, Sched. 1, s. 74 (1, 2).

CONTENTS

Definitions and interpretation

1 (1) In this Act,

“cost of health care benefits” means the sum of,

(a) the present value of the total expenditure by the Crown in right of Ontario for health care benefits provided for insured persons as a result of opioid-related disease, injury or illness or the risk of opioid-related disease, injury or illness, and

(b) the present value of the estimated total expenditure by the Crown in right of Ontario for health care benefits that could reasonably be expected to be provided for those insured persons as a result of opioid-related disease, injury or illness or the risk of opioid-related disease, injury or illness; (“coût des prestations de soins de santé”)

“disease, injury or illness” includes problematic substance use, addiction and general deterioration of health; (“maladie, blessure ou affection”)

“health care benefits” means,

(0.a) home and community care services under the Connecting Care Act, 2019,

(a) insured services as defined in the Health Insurance Act,

(b) community services under the Home Care and Community Services Act, 1994, before its repeal,

(c) payments under the Homemakers and Nurses Services Act,

(d) services for which a facility cost is payable under the Integrated Community Health Services Centres Act, 2023,

(e) care, services and accommodation under the Fixing Long-Term Care Act, 2021,

(f) drugs, substances or professional services funded under the Ontario Drug Benefit Act,

(g) care, services and accommodation under any of the following Acts, before their repeal:

(i) the Charitable Institutions Act,

(ii) the Homes for the Aged and Rest Homes Act,

(iii) the Nursing Homes Act,

(iv) the Long-Term Care Homes Act, 2007,

(g.1) services for which a facility fee was payable under the Independent Health Facilities Act before its repeal,

(h) other expenditures by the Crown in right of Ontario, made directly or through one or more agents or other intermediate bodies, for programs, services, benefits or similar matters associated with disease, injury or illness; (“prestations de soins de santé”)

“insured person” means,

(a) a person, including a deceased person, for whom health care benefits have been provided, or

(b) a person for whom health care benefits could reasonably be expected to be provided; (“assuré”)

“joint venture” means an association of two or more persons, if,

(a) the relationship among the persons does not constitute a corporation, partnership or trust, and

(b) the persons each have an undivided interest in assets of the association; (“coentreprise”)

“manufacture” includes, for an opioid product, the production, assembly and packaging of the opioid product; (“fabrication”, “fabriquer”)

“manufacturer” means a person who manufactures or has manufactured an opioid product and a person who, in the past or currently,

(a) causes, directly or indirectly, through arrangements with contractors, subcontractors, licensees, franchisees or others, the manufacture of an opioid product,

(b) for any fiscal year of the person, derives at least 10 per cent of revenues, determined on a consolidated basis in accordance with generally accepted accounting principles in Canada, from the manufacture or promotion of opioid products by that person or by other persons,

(c) engages in or causes, directly or indirectly, other persons to engage in promoting an opioid product, or

(d) is a trade association primarily engaged in,

(i) advancing the interests of manufacturers,

(ii) promoting an opioid product, or

(iii) causing, directly or indirectly, other persons to engage in promoting an opioid product; (“fabricant”)

“opioid product” means any product that contains,

(a) a drug set out in Schedule 1 to this Act, or

(b) a drug prescribed by the regulations made under this Act; (“produit opioïde”)

“opioid-related disease, injury or illness” means disease, injury or illness caused or contributed to by an individual’s use or exposure to an opioid product, whether the opioid product is,

(a) in the form in which it was manufactured,

(b) combined with another drug or substance, or

(c) used, or in the case of exposure is present, in a form or manner other than,

(i) as prescribed or advised by a practitioner, or

(ii) as recommended by the manufacturer of that opioid product; (“maladie, blessure ou affection liée aux opioïdes”)

“opioid-related wrong” means,

(a) a tort that is committed in Ontario by a manufacturer or wholesaler and that causes or contributes to opioid-related disease, injury or illness, or

(b) in an action under subsection 2 (1), a breach, by a manufacturer or wholesaler, of a common law, equitable or statutory duty or obligation owed to persons in Ontario who have used or been exposed to or might use or be exposed to an opioid product; (“faute liée aux opioïdes”)

“person” includes a trust, joint venture or trade association; (“personne”)

“practitioner” means a person who,

(a) is authorized under the Medicine Act, 1991, Dentistry Act, 1991, Nursing Act, 1991 or Veterinarians Act to prescribe or advise on the therapeutic value, contents and hazards of a drug within the meaning of the Drug and Pharmacies Regulation Act, and

(b) is not prohibited from prescribing a drug that is an opioid product; (“praticien”)

“promote” or “promotion” includes, for an opioid product,

(a) the marketing of the opioid product, whether direct or indirect,

(b) the distribution or sale of the opioid product, and

(c) any research with respect to the opioid product; (“promouvoir”, “promotion”)

“type of opioid product” means an opioid product in the form of a pill, a capsule, an oral liquid, a powder, an injectable, a topical or a combination of any of these; (“type de produit opioïde”)

“use or exposure”, in relation to an opioid product, means ingestion, inhalation, injection, application or assimilation of the opioid product, whether intentional or otherwise; (“consommation ou exposition”)

“wholesaler” means a person who distributes, sells or offers for sale opioid products,

(a) to pharmacies, distributors or other persons for resale, or

(b) to hospitals, facilities or care centres for patient use. (“grossiste”) 2019, c. 17, Sched. 2, s. 1 (1); 2021, c. 39, Sched. 2, s. 18 (1, 2); 2021, c. 25, Sched. 22, s. 1; 2023, c. 4, Sched. 1, s. 74 (1, 2).

“Manufacturer”, exclusions

(2) The definition of “manufacturer” in subsection (1) does not include,

(a) an individual;

(b) a wholesaler or retailer of opioid products who is not related to,

(i) a person who manufactures an opioid product, or

(ii) a person described in clause (a) of the definition of “manufacturer”; or

(c) a person who,

(i) is a manufacturer only because clause (b) or (c) of the definition of “manufacturer” applies to the person, and

(ii) is not related to,

(A) a person who manufactures an opioid product, or

(B) a person described in clause (a) or (d) of the definition of “manufacturer”.

2019, c. 17, Sched. 2, s. 1 (2).

Meaning of “related”

(3) For the purposes of subsection (2), a person is related to another person if, directly or indirectly, the person is,

(a) an affiliate, as defined in section 1 of the Business Corporations Act, of the other person; or

(b) an affiliate of the other person or an affiliate of an affiliate of the other person. 2019, c. 17, Sched. 2, s. 1 (3).

Meaning of “affiliate”

(4) For the purposes of clause (3) (b), a person is deemed to be an affiliate of another person if the person,

(a) is a corporation and the other person, or a group of persons not dealing with each other at arm’s length of which the other person is a member, owns a beneficial interest in shares of the corporation,

(i) carrying at least 50 per cent of the votes for the election of directors of the corporation, and the votes carried by the shares are sufficient, if exercised, to elect a director of the corporation, or

(ii) having a fair market value, including a premium for control if applicable, of at least 50 per cent of the fair market value of all the issued and outstanding shares of the corporation; or

(b) is a partnership, trust or joint venture, and the other person, or a group of persons not dealing with each other at arm’s length of which the other person is a member, has an ownership interest in the assets of that person that entitles the other person or group of persons to receive at least 50 per cent of the profits or at least 50 per cent of the assets on the dissolution, winding up or termination of the partnership, trust or joint venture. 2019, c. 17, Sched. 2, s. 1 (4).

Deemed affiliate

(5) For the purposes of clause (3) (b), a person is deemed to be an affiliate of another person if the other person, or a group of persons not dealing with each other at arm's length of which the other person is a member, has any direct or indirect influence that, if exercised, would result in control in fact of that person, except if the other person or group of persons deals at arm's length with that person and derives influence solely as a lender. 2019, c. 17, Sched. 2, s. 1 (5).

Formula for determining market share

(6) For the purposes of determining the market share of a defendant for a type of opioid product sold in Ontario, the court shall calculate the defendant’s market share for the type of opioid product by the following formula:

...