Multi-Crown class actions are a novel solution for governments seeking to hold multi-jurisdictional defendants to account for harms on a national scale. Late last year, in Sanis Health Inc. v. British Columbia (“Sanis Health”), the Supreme Court of Canada affirmed the constitutionality of this model.[1] Justice Karakatsanis’ majority opinion also reaches beyond the multi-Crown class action model, delivering the Supreme Court’s first comprehensive endorsement of the broader national class action model that – until now – had developed across Canada largely without the Supreme Court’s national oversight.
British Columbia’s Opioid Damages and Health Care Costs Recovery Act
In August 2018, British Columbia launched a class action lawsuit against opioid drug manufacturers, wholesalers, and distributors, alleging that their marketing practices had contributed to the opioid addiction epidemic and harmed the public healthcare system.[2] Later that year, B.C. enacted the Opioid Damages and Health Care Costs Recovery Act (“ORA”).[3] Like its precursor tobacco cost recovery legislation, the ORA creates a direct cause of action allowing the B.C. government to sue opioid makers and distributors to recover added health care costs and other damages created by the opioid addiction crisis. Such a legislative mechanism for cost recovery was upheld as constitutional by the Supreme Court in British Columbia v Imperial Tobacco (“Imperial Tobacco”).[4]
The ORA included one key provision that was not featured in the earlier tobacco legislation: section 11 of the ORA provides that any ongoing B.C. government lawsuit in relation to an opioid-related wrong may be brought as a class action on behalf of all other provincial, territorial, and federal governments who choose not to opt out. This mechanism avoids the need for each government in Canada to bring a duplicative action against the same defendants for the same conduct and harms, increasing judicial economy and efficiency and creating the opportunity for a single binding adjudication of the issues. These benefits are an echo of those which underpin the development of national class actions more broadly.
Notably, since B.C. enacted the ORA in 2018, virtually all provinces and territories in Canada have enacted opioid cost-recovery legislation that is functionally identical to the ORA.
In Sanis Health, a collection of pharmaceutical manufacturers and distributors named as defendants in B.C.’s opioid class action argued that s. 11 of the ORA was unconstitutional because it was an extraterritorial attempt by the B.C. government to determine the substantive civil rights of other Canadian governments. In response, B.C. argued that the provision simply created a procedural mechanism and was an appropriate exercise of the province’s jurisdiction over the “Administration of Justice in the Province” under s 92(14) of the Constitution Act, 1867.[5]
The provision was upheld as constitutional by the B.C. Supreme Court, the B.C. Court of Appeal, and ultimately by the Supreme Court in a 6-1 ruling (with Justice Coté dissenting).
The Supreme Court’s Decision
In upholding s. 11 of the ORA, Justice Karakatsanis described national class actions as a manifestation of “cooperative federalism” and recognized that such flexible tools are necessary to “ensure that justice is not blocked by provincial borders.”[6] This was the first such endorsement of the benefits of multi-jurisdictional class actions from the Supreme Court.
Justice Karakatsanis applied the two-part framework established in Imperial Tobacco for determining whether s. 11 of the ORA respects the territoriality of the other provinces. The Appellants argued that the provision should be classified under the province’s s 92(13) power over “property and civil rights” because it created substantive rights for the B.C. Crown to act as a representative plaintiff on behalf of “foreign” Crowns. They further argued that, in effect, the provision affected the substantive rights of other Crowns by depriving them of their “litigation autonomy” (or the rights of the provincial, territorial, and federal Crowns to initiate and direct litigation), by forcing them to opt in or out of a class action led by another Crown and binding their successors to this choice.[7]
Justice Karakatsanis rejected both arguments, finding that the B.C. Crown already had the right to bring a multi-Crown class action under the Class Proceedings Act (“CPA”).[8] She concluded that the s. 11, like the CPA, was purely procedural in nature, and served only to dictate that the existing opioid class action would proceed as a multi-Crown class action. Moreover, she observed that Crowns regularly bind their successors and cede elements of their litigation autonomy, for instance by choosing to litigate in a foreign jurisdiction. She held that the choice to opt in or out of a class action was itself a legitimate exercise of litigation autonomy. Thus, the provision was properly classified under s. 92(14), the power over the administration of justice, and in purpose and effect was purely procedural.
In considering whether s. 11 respected other provinces’ territoriality, the Supreme Court applied a two-part test, asking: a) whether the provision has a meaningful connection to the enacting province and b) whether the provision respects the legislative sovereignty of other territories.
The Supreme Court found both criteria were met. Section 11 has a meaningful connection to B.C. “both through the nature of the class action, and through the choice of the foreign Crowns to participate in the proceeding.”[9] Justice Karakatsanis drew a connection to the jurisprudence upholding the constitutionality of national class actions, discussed further below. Finally, Karakatsanis J. held that the provision respects the legislative sovereignty of other territories by providing the opportunity to opt out. Rather than undermining sovereignty, the provision facilitates intergovernmental cooperation, the benefits of which are reflected by the fact that nearly every provincial and territorial government is participating in B.C.’s opioid class action and intervened in Sanis Health in support of the legislation.
Following the Supreme Court’s decision, the B. C. Supreme Court released a decision certifying the underlying class action.[10]
The Supreme Court’s Endorsement of National Class Actions
National class actions are now a well-established feature of the class actions landscape in Canada, but there has been significant debate about whether the current model operates within the constitutional limits of provincial courts. Specifically, commentators have questioned whether a class action brought in one province can cover non-residents whose claims have no ties to the home province of the action. Appellate courts have largely (although not unanimously) affirmed the validity of this inclusive model, but the Supreme Court had not weighed in on this debate until now.
Prior to Sanis Health, several provincial appellate-level courts heard challenges to multi-jurisdictional class actions on the basis that they improperly included non-resident class members who had no connection to the province. In some cases, defendants sought to exclude these class members on the grounds that jurisdiction was not established, while others challenged the constitutionality of the underlying class proceedings statutes.
The B.C. Court of Appeal was the first appellate court to address this issue in Harrington v Dow Corning Corp., where it upheld the inclusion of non-BC resident class members in a class action against silicone breast implant manufacturers.[11] While acknowledging that non-residents with no direct connection to B.C. would be unable to meet the “real and substantial connection” test in an individual suit, the court rejected this “strict application of rules” in the class actions context. Instead, the court found that the existence of certifiable common issues as between resident and non-resident class members established the requisite real and substantial connection.[12]
Subsequent cases in other jurisdictions followed similar reasoning to uphold or enforce multi-jurisdictional class actions. In Meeking v. Cash Store Inc. et al., for example, the Manitoba Court of Appeal adopted the same “common issues as a connection” reasoning to affirm that Manitoba residents with claims that occurred in Manitoba could be bound by a national class settlement approved in Ontario.[13]
The Saskatchewan Court of King’s Bench in Thorpe v. Honda Canada, Inc., upheld the constitutionality of multi-jurisdictional class actions under Saskatchewan’s “opt-out” regime (B.C. was an “opt-in” jurisdiction for non-resident class members at the time of Harrington).[14] In addition to citing the reasoning that common issues establish a real and substantial connection, the Court also concluded that the court’s jurisdiction to certify multi-jurisdictional class actions did not stem from the Class Actions Act, but from the “plenary authority of the courts” which pre-dated the Constitution Act, 1867, and was therefore not subject to the territorial limits of s. 92.[15]
Courts were not unanimous on this issue. Five years prior to Meeking, the Quebec Court of Appeal came to the opposite conclusion on the same question of whether national class action settlements could bind out-of-province claimants. In Hocking c. Haziza, the Court held that a Quebec resident could continue his action against HSBC, and that a previously settled a national class action in Ontario had no jurisdiction over his claim.[16] The Court concluded that the constitutional principle of territoriality required that each class member be able to individually establish a “real and substantial connection” with the forum, and that the existence of common issues was insufficient to ground this connection.
Legal scholars were similarly divided. Constitutional law expert Peter Hogg and class action litigator Gordon McKee took a similar position in a 2010 article, arguing that, for provinces with an “opt-out” framework (i.e. most provinces), each non-resident class member would need to have a claim with a real and substantial connection to the forum province in order to be properly within the constitutional limits of a provincial courts’ authority.[17] Professor Janet Walker published a response to this article defending the constitutionality of multi-jurisdictional class actions. She argued along the same lines as Thorpe that provincial courts are not subject to territorial restrictions contained in the Constitution Act¸ 1867, and endorsed the reasoning in Harrington that the common issues shared between the parties was a sufficient basis to establish jurisdiction.[18]
Thus, for over a decade before the SCC released Sanis Health, Canadian courts have been operating under an uneasy and incomplete judicial consensus that the jurisdictional "real and substantial connection" test can be met in the class action context because (a) the resident plaintiffs have a real and substantial (or meaningful) connection to the province and (b) the common issues between the resident plaintiffs extend that connection to the whole class.
The Appellants in Sanis Health made similar arguments to Hogg and McKee's that s. 11 was ultra vires because it would enable a B.C. court to adjudicate “the substantive claims of foreign Crowns, for alleged wrongs occurring in foreign provinces and territories, according to foreign law,” without any meaningful connection the province.[19] Had the Court accepted this argument, the constitutional underpinnings of all national class actions would have been called into doubt.
In rejecting the Appellants’ argument, the Supreme Court acknowledged this danger, writing: “Accepting the appellants’ arguments on this point would contradict decades of established jurisprudence affirming that superior courts can preside over class actions that are national in scope.”[20]
The Supreme Court took pains to emphasize the value of national class actions as “an increasingly an important vehicle for many Canadians to access justice in the modern world.”[21] The Court observed that national class actions “help Canadians to deal with products, people, and problems that cross jurisdictional boundaries” while furthering the three underlying goals of class actions proceedings: judicial economy, access to justice, and behaviour modification.[22]
Although Coté J observed sharply in her dissent that the constitutionality of national class actions was not an issue squarely before the Court,[23] the majority nonetheless commented on the jurisprudence developed by provincial appellate courts across Canada and provided fulsome approval. Noting that the Supreme Court has previously endorsed class actions that were multi-jurisdictional in nature, Karakatsanis J. cited the leading decisions and agreed that “the common issues shared between the non-resident class plaintiffs and the resident representative plaintiff suffice to establish a real and substantial connection for adjudicatory jurisdiction over the class.”[24]
Some questions linger. The Supreme Court did not address whether the “common issues as a meaningful and substantial connection” reasoning could extend to absent international class members, as the Ontario Court of Appeal held in Airia Brands Inc. v. Air Canada.[25] In addition, the law around jurisdiction over absent defendants remains unsettled. In a recent proposed class action, the B.C. Supreme Court found that it lacked jurisdiction over non-resident defendants for torts that occurred outside B.C. involving class members with no connection to B.C..[26] The Court distinguished Sanis Health and held that the decision had a “limited scope of application to cases where there was already “something more” connecting the defendants to the jurisdiction.”[27] It is worth noting that, in the underlying class action in Sanis Health, three absent defendants have brought a jurisdictional challenge that is currently before the B.C. Court of Appeal.[28]
Conclusion
At first glance, the Supreme Court’s decision in Sanis Health may appear minimally impactful. The decision does not fundamentally alter the world of class actions and upholds a law that thus far applies to just two lawsuits. However, Sanis Health paves the way for other multi-Crown class actions, which may turn out to be a critical tool for governments seeking to hold multi-national corporate defendants to account. In 2024, B.C. introduced Bill 12, the Public Health Accountability and Cost Recovery Act, which would have created a broad, non-industry-specific public health cost recovery mechanism.[29] Potential targets alluded to were social media companies and companies that market vapes to youth. The bill has since been shelved pending government discussions with social media companies,[30] but nonetheless demonstrates the broad potential of multi-Crown class actions.
Even more significantly, the Supreme Court resolved any remaining doubts about the constitutionality of multi-jurisdictional class actions, solidifying the viability of this model permanently. As the Supreme Court recognized, national class actions are a necessary tool for the efficient prosecution of an increasing number of border-crossing legal problems in our modern, interconnected world.
[1] Sanis Health Inc v British Columbia, 2024 SCC 40.
[2] British Columbia Ministry of the Attorney General, News Release, “British Columbia Files Lawsuit Against Opioid Industry” (August 29, 2018).
[3] Opioid Damages and Health Care Costs Recovery Act, SBC 2018, c 35.
[4] British Columbia v Imperial Tobacco, 2005 SCC 49.
[5] Constitution Act, 1867, (UK), 30 & 31 Vict, c 3.
[6] Sanis Health, supra note 1, at paras 1-2.
[7] Ibid, at para 61.
[8] Class Proceedings Act, RSBC 1996, c 50.
[9] Sanis Health, supra note 1, at para 88.
[10] British Columbia v Apotex Inc, 2025 BCSC 92.
[11] Harrington v Dow Corning Corp, 2000 BCCA 605.
[12] Ibid at paras 78 to 86.
[13] Meeking v Cash Store Inc et al, 2013 MBCA 81.
[14] Thorpe v Honda Canada, Inc, 2011 SKQB 72.
[15] Ibid at paras 119 to 126.
[16] Hocking c Haziza, 2008 QCCA 800.
[17] Peter W. Hogg & S. Gordon McKee, “Are National Class Actions Constitutional?” (2010) 26 NJCL 279.
[18] Janet Walker, "Are National Class Actions Constitutional - A Reply to Hogg and McKee"
(2010) 48:1 Osgoode Hall L J 95.
[19] Sanis Health, supra note 1, at para 87.
[20] Ibid at para 93.
[21] Ibid.
[22] Ibid at para 17.
[23] Ibid at para 173.
[24] Ibid at para 90.
[25] Airia Brands Inc v Air Canada, 2017 ONCA 792.
[26] Cline v Gymnastics Canada, 2025 BCSC 146.
[27] Ibid at para 168.
[28] BC v Apotex, supra note 10, at para 347.
[29] British Columbia Office of the Premier, News Release, “B.C. Takes Action to Hold Companies Accountable for Hurting People” (March 14, 2024).
[30] Darryl Greer, “B.C. Online Harms Bill on Hold After Deal with Social Media Firms,” CBC (April 23, 2024).
