Bill 2 - An Act to Amend the Opioid Damages and Health Care Costs Recovery Act

BILL 2

An Act to Amend the Opioid Damages and Health Care Costs Recovery Act

His Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 Subsection 1(1) of the Opioid Damages and Health Care Costs Recovery Act, chapter 28 of the Acts of New Brunswick, 2023, is amended

(a) by repealing the definition “cost of health care benefits” and substituting the following:

“cost of health care benefits” means (coût des services de soins de santé)

(a) in relation to an action under subsection 2(1), the sum of

( i) the present value of the total expenditure by the Crown in right of the Province 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

( ii) the present value of the estimated total expenditure by the Crown in right of the Province 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, and

(b) in relation to an action under subsection 2.1(1), the sum of

( i) the present value of the total expenditure by the Crown in right of Canada 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

( ii) the present value of the estimated total expenditure by the Crown in right of Canada 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.

(b) by repealing the definition “health care benefits” and substituting the following:

“health care benefits” means (services de soins de santé)

(a) in relation to an action under subsection 2(1),

( i) entitled services as defined in the Medical Services Payment Act,

( ii) entitled services as defined in the Hospital Services Act,

( iii) goods or services provided or payments made by the Crown in right of the Province under the Ambulance Services Act, the Prescription Drug Payment Act, the Prescription and Catastrophic Drug Insurance Act, the Health Services Act, the Family Services Act, the Child and Youth Well-Being Act, the Nursing Homes Act and the Public Health Act, and

( iv) other expenditures by the Crown in right of the Province, 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, and

(b) in relation to an action under subsection 2.1(1), the expenditures by the Crown in right of Canada for programs, services, benefits or similar matters associated with disease, injury or illness.

(c) in paragraph (b) of the definition “opioid-related wrong” by striking out “subsection 2(1)” and substituting “subsection 2(1) or 2.1(1)”.

2 Section 2 of the French version of the Act is amended

(a) in subsection (4)

( i) in paragraph a) by striking out “à l’égard de certains” and substituting “à certains”;

( ii) in paragraph b) by striking out “à l’égard d’une population” and substituting “à une population”;

(b) in paragraph 2(5)b) by striking out “ou les documents relatifs” and substituting “ni les documents relatifs”.

3 The Act is amended by adding after section 2 the following:

Direct action by the Crown in right of Canada

2.1( 1) The Crown in right of Canada has a direct and distinct action against a manufacturer, wholesaler or consultant to recover the cost of health care benefits caused or contributed to by an opioid-related wrong.

2.1( 2) An action under subsection (1) is brought by the Crown in right of Canada in its own right and not on the basis of a subrogated claim.

2.1( 3) In an action under subsection (1), the Crown in right of Canada may recover the cost of health care benefits whether or not there has been any recovery by other persons who have suffered damage caused or contributed to by the opioid-related wrong committed by the defendant.

2.1( 4) In an action under subsection (1), the Crown in right of Canada may recover the cost of health care benefits

(a) for particular individual insured persons who have suffered damage caused or contributed to by the use of or exposure to a type of opioid product, or

(b) on an aggregate basis, for a population of insured persons who have suffered damage caused or contributed to by the use of or exposure to a type of opioid product.

2.1( 5) If the Crown in right of Canada seeks in an action under subsection (1) to recover the cost of health care benefits on an aggregate basis,

(a) it is not necessary

( i) to identify particular individual insured persons,

( ii) to prove the cause of opioid-related disease, injury or illness in any particular individual insured person, or

( iii) to prove the cost of health care benefits for any particular individual insured person,

(b) the health care records and documents of particular individual insured persons or the documents relating to the provision of health care benefits for particular individual insured persons are not compellable except as provided under a rule of law, practice or procedure that requires the production of documents relied on by an expert witness,

(c) a person is not compellable to answer questions with respect to the health of, or the provision of health care benefits for, particular individual insured persons,

(d) despite paragraphs (b) and (c), on application by a defendant, the court may order discovery of a statistically meaningful sample of the documents referred to in paragraph (b), and the order shall include directions concerning the nature, level of detail and type of information to be disclosed, and

(e) if an order is made under paragraph (d), the identity of particular individual insured persons shall not be disclosed, and all identifiers that disclose or may be used to trace the names or identities of any particular individual insured persons shall be deleted from any documents before the documents are disclosed.

4 Subsection 3(1) of the Act is amended in the portion preceding paragraph (a) by striking out “subsection 2(1)” and “in right of the Province” and substituting “subsection 2(1) or 2.1(1)” and “in right of the Province or the Crown in right of Canada”, respectively.

5 Section 4 of the Act is amended

(a) in subsection (1)

( i) in the portion preceding paragraph (a) by striking out “subsection 2(1)” and substituting “subsection 2(1) or 2.1(1)”;

( ii) in paragraph (b) by striking out “subsection 2(1)” and substituting “subsection 2(1) or 2.1(1)”;

(b) in subsection (2) in the portion preceding paragraph (a) by striking out “subsection 2(1)” and substituting “subsection 2(1) or 2.1(1)”.

6 Section 6 of the Act is amended by

(a) in paragraph (a) of the English version by striking out “or” at the end of the paragraph;

(b) in paragraph (b) by striking out the period at the end of the paragraph and substituting “, and”;

7 Section 7 of the Act is amended

(a) in subsection (1) of the French version by striking out “province, en vue de” and “ou de toute autre loi” and substituting “province en vue de” and “ni de toute autre loi”, respectively;

(b) by adding after subsection (1) the following:

7( 1.1) No action or proceeding that is commenced by the Crown in right of Canada for the recovery of the cost of health care benefits or for damages alleged to have been caused or contributed to by an opioid-related wrong is barred under the Limitation of Actions Act or any other Act if the action or proceeding was commenced before the coming into force of this section or within 15 years after it came into force.

8 Subsection 8(2) of the Act is amended in the portion preceding paragraph (a) by striking out “the Crown in right of the Province” and substituting “the Crown in right of the Province or the Crown in right of Canada”.

9 Section 13 of the Act is amended by striking out “subsection 2(1)” and substituting “subsection 2(1) or 2.1(1)”.