Tuesday, February 25, 2014

Court agrees to protect plaintiffs' identities in invasion of privacy case against Health Canada

In a decision issued yesterday, the Federal Court ordered the the identity of plaintiffs in a putative class action against Health Canada should be protected to allow them to pursue their claim against the Government for the breach of privacy of members of the Medical Marihuana Access Program.

As blogged about last year, my firm filed a proposed class action lawsuit against Health Canada after it sent a mailing to approximately 40,000 people who are authorized to possess or grow marijuana under the program administered by Health Canada. (More info is here.)

Shortly after the breach occurred, lawsuits were filed in the federal courts by my firm, McInnes Cooper of Nova Scotia, and Branch McMaster of British Columbia. Sutts Strosberg of Ontario filed a lawsuit in the Ontario Superior Court. Each of these cases has a separate named plaintiff and all three of them were filed with the intent that they would be certified as class actions on behalf of all similarly affected participants in the MMAP.

The suit commenced by McInnes Cooper was filed on behalf of “John Doe”, a resident of Nova Scotia. The suit commenced by Sutts Strosberg was filed on behalf of “Suzie Jones”, a resident of Ontario. The case commenced by Branch McMaster was filed on behalf of an individual who chose to identify himself. The “John Doe” and “Suzie Jones” cases have been consolidated into one case in the Federal Court of Canada.

“John Doe” and “Suzie Jones” are pseudonyms for the proposed representative plaintiffs, so that the identities of those individuals would not become known. On February 20, 2014, a motion was heard in the Federal Court of Canada for an order of the court protecting the identities of “John Doe” and “Suzie Jones”. In most cases, parties to a legal action are required to name themselves and this information appears on the public record. Because the case against Health Canada is based on the disclosure of program members’ identities in association with the MMAP, requiring participants in these lawsuits to name themselves would further harm their privacy.

On February 25, 2013 we received the decision of the Court. The Court agreed that to deny the plaintiffs anonymity in the court proceeding would disclose the very information they seek to protect and exacerbate the damage and/or risk of harm that has already been caused by Health Canada’s mailing that identified them as a participant in the Program.

Government lawyers, on behalf of Health Canada, argued that this was a matter related solely to marihuana use and that the plaintiffs’ privacy should not be protected. Relying on newspaper articles and internet research, they argued that public opinion about marihuana use has changed to be more accepting. The Court rejected this evidence as irrelevant, explaining:

“What the Plaintiffs’ marijuana use discloses is their medical and health information. The Plaintiffs are patients, no simply “users”. Disclosing their identities discloses that a course of treatment has been prescribed by them by a medical doctor, and that they suffer from serious health conditions and symptoms. Identifying the Plaintiffs by name or information that discloses their personal identity also discloses that they have or are likely to have medical marihuana in their homes – something that Health Canada itself saw as a serious safety and security risk.

Accordingly, I am satisfied that in the within case of John Doe and Suzy Jones, without the protection they seek on this motion, the important issues they raise in their Amended Statement of Claim may not be determined in this forum, and that the issues they raise regarding patient rights, privacy and whether Health Canada owes a duty of care and has breached that duty and is liable are issues that are in the public interest to be determined. The Plaintiffs have requested only that their personal identity be protected and with minimum intrusion on the open court process.”

It's particularly gratifying that the Court acknowledged that this isn't just a matter of protecting the privacy of marihuana users, but more centrally concerns sensitive health information that was disclosed.

(Members of the proposed class can register and get more information at http://www.marijuanaclassaction.com).

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