When Governments Write The Rules To Sue

A province suing over opioids is one thing. A province passing a statute that makes it easier for itself to sue, then launching a sweeping class action on that foundation, is something else entirely. We walk through British Columbia’s opioid litigation strategy, the allegations about marketing and addiction risk, and how the Opioid Damages and Health Care Cost Recovery Act reshapes the usual civil rules around limitation periods, damages, and liability. If you’ve ever wondered what “government cost recovery” really looks like in court, this is the clearest real-time example.

We also unpack the Court of Appeal’s decision on class action certification, because that early procedural stage often decides the real leverage in mass litigation. We talk about what certification is actually meant to test, why appellate courts don’t treat appeals as a second kick at the can, and what it means when dozens of lawyers show up to fight over whether a case can proceed as a class action at all. Along the way, we flag a practical concern that’s easy to miss: cross-border enforceability and why a judgment that looks unfair can trigger resistance in other jurisdictions.

Then we switch gears to a BC civil forfeiture case involving a 2015 Dodge Challenger and allegations of dangerous driving. The fight isn’t just about speeding facts; it’s about whether the province can sell property before trial to avoid storage costs, and what “instrument of unlawful activity” means when no criminal conviction is required. If civil forfeiture, due process, and proportionality have ever seemed abstract, this one makes it concrete. Subscribe, share the episode with a friend, and leave a review telling us which issue matters more to you: opioid accountability or civil forfeiture powers.

Follow this link for a transcript of the show and links to the cases discussed. 

Transcript

Why BC Is Suing Opioid Firms

Michael Mulligan 0:26

So this all started a a number of years ago in BC, uh, and it's an effort by uh the Province of British Columbia uh and other provinces, and the federal government indeed, uh, to try to collect money from uh various companies involved with opioid uh marketing sales and distribution to pay for uh the costs incurred by government uh for uh treating people with uh issues that have uh been caused by that. Um and the the core of it uh is uh a claim that uh the manufacturers of opioids marketed and promoted them uh when they were aware, uh marketed and promoted them claiming they were less addictive when they knew uh that that wasn't the case, uh, and uh also alleging uh that the drugs were not appropriate or effective for treating um many of the things they were being prescribed for. And in particular, it appears the claim is premised on uh an allegation that they would be uh perhaps appropriate for an acute pain, like you're recovering from surgery, but not uh the appropriate treatment necessarily for your sore back, for example. Um and so the claim itself is an interesting one. Uh, and for one of the reasons it's interesting is that British Columbia passed legislation

The Claim About Marketing Addiction

Michael Mulligan 1:50

allowing them to sue, which is sort of like writing your own rules and then engaging them to try to in the court case. Not not a lot of plaintiffs in court cases get to write all of the rules surrounding their litigation and then engage in the litigation.

SPEAKER_02 2:04

Yeah.

Michael Mulligan 2:04

But that's what's going on here. We have in BC an act called the Opioid Damages and Health Care Cost Recovery Act, and it's designed to make it easier for the province to sue all of the various manufacturers and generic manufacturers and distributors and so on. It does a whole bunch of things. Like, for example, they've waived all limitation, they've waived the Limitation Act for themselves, right? That's sure convenient if you're a plaintiff. Uh and they've also set out in that legislation rules about uh how damages can be calculated, specifying that the province can collect aggravate damages based on um things done to a variety of other people. So they've written a rule book kind of favoring themselves and bringing this claim, which is, I suppose, one thing listeners should reflect upon, would be sort of the inherent fairness of writing your own rules and then using them to uh litigate. But that's what's going on here. Um and then in addition to that interesting legal premise, uh the province of British Columbia is also engaging in a class action, which is interesting. You don't see the government often trying to be a class member, and the proposed class would be like British Columbia, all the other provinces, uh, and the federal government, right? So uh the province of British Columbia is bringing a class action where they're the plaintiff premised on the legislation that they

A Law That Rewrites Litigation Rules

Michael Mulligan 3:25

passed to allow themselves to do this. Um, really interesting just in terms of the broad fairness questions, but on the other hand, this is something that, for example, has occurred already in the United States in a different format there. Uh, and there was not too long ago a large settlement, I think it was some fifty billion dollars reached between various state and local governments suing their pharmaceutical and other manufacturers. So they've got this big chunk of change there in the United States, and this is, I guess, the Canadian effort to get some of that money from the uh drug companies uh as well. Now as we talked about before, the battle in class action cases often is has been focused on the issue of certification, like the issue of can this be a class action? And and it is heavily litigated by defendants trying to avoid that, because uh in many cases, if you can stop the class action, you've got yourself a procedural advantage of every person whose you know coffee maker broke as to sue you individually, you're probably in pretty good shape in terms of how that litigation looks. And so there's lots of effort put into resisting certification applications. And here there had been a certification by the trial judge, and that's what was being appealed. And the appeal took, again, as you said at the outset, five days in the Court of Appeal with 45 lawyers showing up for every pharmaceutical manufacturer distribution company and uh generic manufacturer, everyone else doing everything they can to avoid that. Uh, and so what just came out yesterday was the decision from the Court of Appeal, which runs uh a very uh good, it's a long judgment, uh resolving uh the appeal, dismissing the appeal from the certification. And you can tell what the Court of Appeal is trying to send here is a message that this kind of an appeal should not be broad, really. And they pointed out that the issues in class action cases are really threefold. One, do you have common issues? Like are there a group of people that really have the same issue that's being sorted out, like we all bought the same coffee maker, or all these provinces had to pay for opioid expenses? Then the next issue for a judge deciding that is is a class action the preserve the best way to do it? Is that the preferable kind of forum for sorting out the issue? And then finally jurisdictions or jurisdiction to do it. And the Court of Appeal pointed out here that the tests for certification are very well established, in part because they have been so

Class Action Certification Stakes Explained

Michael Mulligan 5:55

resisted and hard fought for so many years, there's now quite clear authority uh from higher courts uh on what it takes to certify something. And so the Court of Appeal has taken pains here to point out that a appeal, like any appeal, is not a chance to just relitigate something, is not a second kick at the can. It can't just be I don't like what the judge did, I want to try again. And so that's why there's this concept of appellate deference and the idea that you know when you're appealing something, it's intended to sort out mistakes. Judges make mistakes like everyone does, not just a chance to do over because you don't like it. Uh and so the Court of Appeal, I think, is very clearly, they say, look, uh the appellate standard of review is essential to discouraging this type of appeal, and so criticize the appeal here being brought as really an attempt to just relitigate what they lost at that first stage. And again, you know, we can you can have your own view about uh whether uh it's appropriate or fair that you have uh the plaintiff bringing uh writing specific legislation allowing the claim and then bringing the claim. There's real scope for that. But, you know, that's not for judges, that's for that's a policy choice, right? The judges are there to apply the law, not to assess is that a good idea or should you be doing that? Um, right? That's a political issue or an issue for the voters, I I guess. If uh this is a topic somebody's voting on, maybe not. Uh I guess the other broad public policy thing to think about is that well, this case is unlikely to get if it was to succeed, and there's been some multi-billion dollar uh award made, uh, because in factors including the unpopularity of large drug manufacturers and the fact that, for example, in the United States, a similar claim was brought and settled, something the Court of Appeal also pointed out here, saying, hey, look, these issues have been litigated already in other forums, other jurisdictions. Much of this, again, is sort of rehashing things that have already been considered in other forums. But I guess we would have to consider if you have legislation that gets too far out in the limb, like let's say British Columbia were to pass legislation that said, you know, the province of British Columbia can sue uh an AI company uh for some harm, and the province

Court Of Appeal Warns Against Do-Overs

Michael Mulligan 8:10

of British Columbia can get all the cash from the claim, and there's no limitation period, and it's to be assumed that you know AI companies are all harmful and cause people to commit crimes. Yeah. And then use that to sue and get some fifty billion dollar judgment against a bunch of US AI companies. The likely outcome of that would really be probably uh some equivalent piece of legislation in the U.S. just saying Canadian judgments are not enforceable in the great state of Texas or California or anywhere. And so care has to be exercised because good luck trying to collect from some of these uh companies, and that that only kind of works on the basis of sort of interjurisdictional cooperation, on the basis that you're getting fair judgments and so on out of other places. If there's some smell that, you know, for example, some other upstart country is uh, you know, trying to uh you know collect money in an unfair way, you could just imagine if uh somebody came waving around the decision from the uh uh you know Democratic Republic of the Congo saying that uh you know uh some large BC company has to pay them billions of dollars for some harm caused in Congo, the Congo, you could well imagine the response being the uh no enforcement of the Democratic Republic of Congolese judgments in British Columbia Act. Thank you so much. And so that does lurk beneath the the uh the surface here. But uh leaving that uh legitimate longer-term concern aside and leaving the broad fairness uh issues aside, uh the Court of Appeal had uh none of it, uh, despite the five days of argument of the 45 lawyers arguing about all these things, pointing out that look, the certification is not designed, you don't have to establish a case likely to succeed, it's not to be some higher standard. The jurisdiction is really clear what has to be there. It's look, common issues, preferable thing, jurisdiction, if so, it's certified. And so uh, you know, the Court of Appeal, I think, is trying to bed these things down, and uh I'd hard to know what effect that will have. Of course, when there are billions of dollars at stake, if there's some argument to be made, uh clearly here the large number of uh opioid manufacturers and distributors and so on have their arms and legs legally outstretched, trying to prevent themselves from being dragged uh into court uh with a uh

Enforcement Risks Across Borders

Michael Mulligan 10:25

very large judgment probably lurking on the other side of it, uh, given in when helped along in no small part by the legislation that expressly allows for that. And so this didn't work in terms of appealing it. This will now go back, presumptively, and be a uh class action proceeding against all these people who, thanks to that legislation, are jointly and severally liable and have no limitation of period applying to them, and uh who legislatively uh the provinces can collect from all of them for all these expenses. That's just all set out in law. Uh and so either this will go back and be a trial, or perhaps, like eventually happened in the United States, there'll be some multi-billion dollar settlement. So that's what's uh going on in BC in the Court of Appeal uh in terms of the effort to get money out of opioid manufacturers uh in in terms of uh healthcare

Civil Forfeiture Targets A Challenger

Michael Mulligan 11:13

expenses.

Adam Stirling 11:13

Michael Mulligan with Mulligan Defense Lawyers legally speaking will continue right after the fact that legally speaking the ones. In fact, and with Michael Mulligan from Mulligan Defense Lords. Michael, what's up next on our agenda?

Michael Mulligan 11:25

So next on the agenda is a uh BC case where the Province of British Columbia, in the form of the Civil Forfeiture Office, uh, is attempting to seize a 2015 Dodge Challenger. Okay, the reason I thought this was worth commenting on is it deals with some of the principles that apply with that legislation. You should be aware of even if your Dodge Challenger isn't from 2015. Now, the background of this uh is that uh the legislation, this legislation we have in BC that deals with civil forfeiture, uh permits the province of British Columbia to uh apply to seize property, which is the an instrument of unlawful activity. And that term is defined to include property that is used to engage in unlawful activity. There's a few subsections to that, uh, and then the unlawful activity can be an act or a mission that uh is an offense under the Act of Canada or British Columbia. And that's really wide, right? Uh it doesn't necessarily mean criminal activity, it could be a Motor Vehicle Act offense, for example. Uh and in this particular case, the Dodge Challenger is alleged to have been uh an instrument of unlawful activity in terms of some speeding and dangerous driving that occurred back in July of last year. Uh and uh it's alleged that uh there were uh two incidents of uh driving in a dangerous way, uh, including driving 100 kilometers in a 50 zone, failing to stop for the police, uh, and then accelerating away. And then a few days after that, last July, a second allegation uh that uh sometime after midnight on the Portman Bridge, uh the vehicle was going 153 kilometers an hour in a 90 zone uh and then failed to stop for the police on a second occasion. And so the police, smartly, uh did not engage in a high-speed chase across the Portman Bridge, but instead uh later that morning showed up wherever it was parked and towed the car away.

Dangerous Driving Allegations And Towing

Michael Mulligan 13:25

Uh now that's a spar smart choice, no accident. Now, it the province has then brought an application to have the vehicle seized and sold uh for the benefit of the province. But the issue that arose here uh is an issue of what's to be done to preserve the car until you have a hearing into whether that should occur or not. Uh because ultimately there'll need to be a trial to determine, first of all, is this an instrument of unlawful activity? And then uh some assessment as to whether it would be in the interest of justice to have the uh vehicle sold uh for some or all of the proceeds to go to the province. But before that trial can occur, the car's got to be somewhere. And so this was an application brought by the director of civil forfeiture, that's just a provincial uh uh entity, um, seeking to have the car sold uh so they didn't have to pay for the storage costs. And they were saying, well, you know, the cars go down in value, that's kind of common, common ground over time. Um you know, I I actually looked up uh an auto trader what you might get yourself a 2005 Dodge Challenger for, and you're probably somewhere in the $20 or $30,000 range. So not an inexpensive car, but it's not worth uh absolute fortune. I guess they're high performance, desirable things. And so the province is arguing, hey, we got to keep this thing in a storage lot somewhere while its value is decreasing. And so they were saying, well, we should be able to sell it, uh, and then we can argue about the money. But in this case, the owner of the 2015 uh Challenger uh didn't want it sold, you see, like the car. And so his position was I want this thing preserved until we can have the trial about whether it's to be taken away from him or not, uh, whether the money should be forfeited. Uh and the uh there are a number of choices a judge had here in terms of how property can be preserved. Uh like, for example, sometimes uh like let's say they're trying to seize a house or something, they might actually allow

Sell The Car Or Preserve It

Michael Mulligan 15:20

the person to continue to live in the house that owns it while the government's trying to take it away. Let's say somebody's using their house allegedly to, you know, produce drugs or something, right? Um government might try to take it. Um and uh so there could be an order requiring the person to preserve it themselves, like, hey, you've got to pay the mortgage and mow the lawn and keep it painted or whatnot. Um you could have a circumstance where it's ordered that it stay in the hands of the director to keep for safekeeping the thing, the property they're trying to seize, or you can have it sold and just keep the cash. The province was here was arguing, or the director of civil forfeiture on behalf of the province was arguing, that hey, they're having to pay these fees to this uh uh agency that stores stuff for the government. The the judge pointed out that while that's hardly an arm's length transaction, right? The government's just charging itself some amount they've determined to be the cost uh involving keeping this thing in a parking lot somewhere. Um, that, you know, it is common ground. There'd be some value, uh there'd be some loss of value, and there's some cost associated with preserving a car, and cars generally go down in price over time. Uh, but uh ultimately here, the judge isn't deciding the ultimate issue as to whether this thing should be forfeited or was it, uh, you know, all of it or some of it, uh, what should happen. And so the judge denied the application by the civil forfeiture people, uh, saying, no, a person wants the uh car. They maybe they like the color, it's got some sentimental value, who knows? Uh, but found that they uh would have to, that is to say, the province would have to continue to preserve the vehicle, and there could be some cost associated with that, but uh they were not going to. It wasn't in the interest of justice to order that it be sold, uh, to just keep the cash, even though that might be simpler in some respects. And even ironically, I suppose you can think about this, uh, if you were somebody who really loved the car, who was uh put up for

No Conviction Needed To Forfeit

Michael Mulligan 17:10

uh auction to be sold, uh there would be nothing stopping the uh the original person who's allegedly been driving this way from just buying it uh and getting the car back and then just fighting over the money, right? So, you know, that's uh I suppose one uh option would be the person could choose if they had the money, just buy the thing themselves, whatever the fair market value of the 2015 Challenger is, and then engage in the litigation. Uh, but they're not going to uh require that here, and instead they're gonna have to keep the thing preserved. One of the things I should say this case really raises, I think, some issues about in terms of the broad fairness considerations, they include the fact that um with these civil forfeiture things, unlike the kind of forfeiture that could occur uh if you were convicted of a crime, because that already exists and it's existed for years in the criminal code, right? If you're convicted of a criminal offense, a judge can order forfeiture of like the gun and mask and, you know, or whatever, the money you got from the drug dealing or whatnot. That's existed for a long time. But this civil forfeiture doesn't require there even be a conviction of any kind. And furthermore, uh it operates on a standard of probably. And furthermore, like in other civil litigation, there'd be no right to silence. Like the person's gotta would have to testify about where they're driving the car and what happened and how fast we are going, this kind of thing. And so there can be some issues about whether that is uh appropriate or fair to uh allow the government to sort of skirt around uh how the rules of proof would work if you were charged criminally or even in fact with a motor vehicle act uh offense, right? Uh some of those things people might uh view as uh the way it works, like they have to prove it and you're presumed to be innocent and and so on, uh don't apply uh when you're just fighting over the car uh and not whether there's going to be any other independent punishment imposed. And then the other thing that this raises, of course, is there is a process uh, you know, for civil forfeiture. Yes, it's on a balance of probabilities, and yes,

When Legal Costs Eclipse Value

Michael Mulligan 19:05

the government, like with the opioid legislation, has drafted the legislation to favor the government in terms of presumptions and make it easier and so on, right? Just, you know, if you're writing the rules for your own litigation, you can imagine what that looks like. But one of the things this does raise is the uh cost of litigation in terms of the value of the property at stake, right? Because when you're fighting over a car worth twenty or thirty thousand dollars, that is going to evaporate if there's any peri any substantial litigation over the thing on both sides. Yeah. Like the money the province will spend litigating this thing probably will cost more than the car. And if this guy is council litigating it, that could also cost him more than the car is worth. And so that's just another thing to consider in terms of the fairness of it all. When you're dealing with uh not trying to take somebody's home away, uh, but what you're trying to take is their car, you know, this is a reasonably nice car, but if they're taking away your $5,000 car, there really is no meaningful litigation to be engaged in because the litigation is worth more than the thing they're looking to seize. So that's the latest from the uh BC Supreme Court on the uh preservation of property that's going to be subject to a civil forfeiture application.

Adam Stirling 20:10

That's all the time we have for today. Michael Mulgan with Mulgan Fantasy. Thank you so much. Pleasure as always. Thanks so much. Always great to be here. All right, quick break.