This afternoon, my firm filed a statement of claim in the Federal Court against Health Canada (John Doe v. Her Majesty) in connection with the massive privacy breach associated with the government’s medical marijuana program. As we understand it, Health Canada irresponsibly deviated from their usual practice of plain brown envelopes, couriers and registered mail by sending a mailing to around 40,000 individuals associated with the program clearly announcing the “Medical Marihuana Program” on the return address.
Between Friday and today, I have had many calls from individuals whose privacy was compromised by this breach, most of them fearing for their jobs and all of them concerned about their own safety. If it gets out in your community that you lawfully possess cannabis, this makes you a target for break and enters. The risk is even more heightened if you are a licensed grower of the plant. While this is a lawful program, the use of medical marijuana is heavily stigmatized.
This is not like most large-scale privacy breaches where the harm is mostly theoretical, since the missing hard-drive or thumb-drive likely didn’t leave the building. In this case, sensitive personal information was exposed to people who had no right to see it. I am told that some people have already lost their jobs because of this. For the rest, it is hard to put a price on legitimate concern about your family’s safety. I lived for a number of years in a community of 400 people, where the Canada Post employees were also neighbours.
Health Canada has dismissed this as a simple administrative error that they’ll endeavour to not repeat. But that’s not good enough from our government. People get to choose the businesses they deal with. If you don’t like how your bank or other service provider handles your personal information, you can change banks or businesses. But that’s not the case with your government. It’s a non-consensual relationship and the government owes a special duty of care to its citizens to protect them and to protect their sensitive personal information. Participants in this program were obtaining a restricted drug for medical purposes and could not do so lawfully except through the government program. Citizens should not have to choose between doing it lawfully or doing it safely. And we are talking about sensitive personal health information, which is generally recognized in Canada as the most sensitive personal information.
If you, or anyone you know, has been affected by this breach, please go to http://www.healthprivacyclassaction.com to provide your contact information so we can keep you apprised of this case as it progresses. Please provide an e-mail address that is confidential only to you. If this breach has had a particular impact on you, there is a portion of the form to provide details about this. Any information you provide will be kept confidential.
Here is the media release:
McInnes Cooper law firm files national class action in medical marijuana privacy breach
HALIFAX, Nov. 25, 2013 /CNW/ - McInnes Cooper law firm today filed a proposed class action in Federal Court against the Government of Canada in response to Health Canada's breach of the privacy rights of 40,000 patients in the Marijuana Medical Access Program. Under the Marijuana Medical Access Program, patients are permitted to grow marijuana in their residence for medicinal purposes.
Earlier this month, Health Canada sent these patients a letter via Canada Post that clearly indicated on the envelope that the named patient participated in the Marijuana Medical Access Program.
Health Canada's disclosure of the patients' private medical information has raised serious employment and security concerns, and caused the patients to suffer considerable stress and anxiety.
"As a result of Health Canada's error, we have already spoken with a number of people whose lives have been affected by this breach," said David Fraser, a national expert on privacy law, and McInnes Cooper's lead lawyer on this case.
"We have heard that some individuals have already lost their jobs as a result, and everyone we've spoken with is concerned about their safety in their homes."
SOURCE: McInnes Cooper
The statement of claim is here:
PROPOSED CLASS ACTION
- and -
HER MAJESTY THE QUEEN
STATEMENT OF CLAIM
TO THE DEFENDANT:
A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the Plaintiff. The claim made against you is set out in the following pages.
IF YOU WISH TO DEFEND THIS PROCEEDING, you or a solicitor acting for you are required to prepare a statement of defence in Form 171B prescribed by the Federal Courts Rules, serve it on the Plaintiff’s solicitor or, where the Plaintiff does not have a solicitor, serve it on the Plaintiff, and file it, with proof of service, at a local office of this Court, WITHIN 30 DAYS after this Statement of Claim is served on you, if you are served within Canada.
If you are served in the United States of America, the period for serving and filing your Statement of Defence is forty days. If you are served outside Canada and the United States of America, the period for serving and filing your Statement of Defence is sixty days.
Copies of the Federal Courts Rules, information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone: 613-992-4238) or at any local office.
IF YOU FAIL TO DEFEND THIS PROCEEDING, judgment may be given against you in your absence and without further notice to you.
Issued by: _________________________________
Address of local office: 1801 Hollis Street,
17th Floor, Suite 1720
Halifax, N.S. B3J 1S7
To: The Attorney General of Canada
Attention: Mr. Willian F. Pentney, Deputy Attorney General of Canada
1. The Plaintiff claims on his own behalf and on behalf of the proposed Class:
a. An Order pursuant to Rules 334.16(1) and 334.17 of the Federal Courts Rules certifying this action as a class proceeding;
b. An Order pursuant to Rules 334.12(3), 334.16(1)(e) and 334.17(b) appointing the Plaintiff as the representative plaintiff for the Class;
c. Damages for the torts of intrusion upon seclusion, publicity given to private life, breach of confidence and negligence;
d. An Order pursuant to Rule 334.28(1) and (2) for the aggregate assessment of monetary relief and its distribution to the Plaintiff and the Class;
e. Prejudgment interest pursuant to section 36 of the Federal Courts Act;
f. Costs, if appropriate; and
g. Such further and other relief as this Honourable Court deems just.
2. The Plaintiff is an individual who resides in Nova Scotia. He is employed in the health care field.
3. The Plaintiff brings this action on his own behalf and on behalf of the members of the proposed class, which is defined as follows:
All persons who were sent a letter from Health Canada in November 2013 that had the phrase Marihuana Medical Access Program or a similar French phrase visible on the front of the envelope.
4. The Defendant, Her Majesty the Queen, is named as a representative of the Federal Government of Canada and Health Canada. Health Canada administers the Marihuana Medical Access Program under the Marihuana Medical Access Regulations.
Medical Marihuana Access Program
5. Through the Marihuana Medical Access Program, the Defendant grants access to marihuana for medical use to Canadians suffering from grave and debilitating illnesses.
6. Marihuana (cannabis) is categorized as a controlled substance, regulated in Canada under the Controlled Drugs and Substances Act. It is not legal to grow or possess marihuana except with legal permission by the Defendant under the Marihuana Medical Access Program.
7. The Plaintiff applied to participate in the Defendant’s Marihuana Medical Access Program to grow and possess marihuana to alleviate the pain that he suffers due to a medical condition. The Defendant approved the Plaintiff’s application.
Disclosure of the Plaintiff’s Private Information
8. The Defendant typically corresponds to the Plaintiff by courier service with plain unmarked brown envelopes.
9. During the week of November 21, 2013, the Defendant sent the Plaintiff a letter plainly and clearly indicating on the envelope that it was from Health Canada and that it was in regards to the Marihuana Medical Access Program.
10. By publically indicating that the Plaintiff was a participant in the Marihuana Medical Access Program, the Defendant disclosed the personal health information about the Plaintiff. Furthermore, the Defendant’s disclosure creates a security concern by alerting other individuals that the Plaintiff may possess and/or grow marihuana at his residence.
11. At all material times, the Defendant owed a duty of care to the Plaintiff and the proposed Class.
12. Furthermore, the Defendant had a statutory duty under subsection 8(1) of the Privacy Act to not disclose personal information without that individual’s consent. The Plaintiff’s and the Class’ participation in the Marihuana Medical Access Program constitutes personal information as it is confidential information and relates to their medical history.
13. The Defendant breached its duty of care owed to the Plaintiff and the Class by:
a. Failing to meet its statutory duties and/or policies in the collection, retention and disclosure of personal information;
b. Failing to take reasonable steps to ensure the personal information was not disclosed;
c. Failing to communicate with the Plaintiff and the Class in a manner that did not disclose their personal information; and
d. Other such particulars as counsel may advise.
Publicity Given to Private Life
14. Through its actions stated above, the Defendant gave publicity to the Plaintiff’s private, personal information, particularly his medical condition.
15. The Plaintiff’s private personal information is of no legitimate concern to the public. The Defendant’s disclosure of the Plaintiff’s private personal information is highly offensive to a reasonable person.
Breach of Confidence
16. The Plaintiff states that the Defendant committed the tort of breach of confidence.
17. In applying to participate in the Marihuana Medical Access Program, the Plaintiff conveyed confidential information in confidence to the Defendant.
18. In its actions stated above, the Defendant misused the Plaintiff’s confidential information to the Plaintiff’ detriment.
Intrusion upon Seclusion
19. The Defendant’s above stated actions constitute an intrusion on seclusion in a manner that would be highly offensive to a reasonable person.
20. The Defendant’s actions have caused the Plaintiff and the Class to suffer the following damages:
a. Costs incurred in taking additional security precautions;
b. Damage to reputation;
c. Damage to employment;
d. Mental distress;
e. General damages; and
f. Inconvenience, frustration and anxiety.
21. The Plaintiff proposes that this trial take place in Halifax.
DATED at Halifax, in the Province of Nova Scotia, this 25th day of November 2013.
PLACE OF TRIAL: HALIFAX, NOVA SCOTIA
David T.S. Fraser
Solicitor for the Plaintiff