Monday, March 16, 2015

Privacy Commissioner: Health Canada violated privacy laws by disclosing personal health information of over 40,000 Canadians

A press release issued today by my firm and the other firms listed below, who are representing more than 40,000 Canadians affected by a Health Canada privacy breach:

The Office of the Privacy Commissioner of Canada has completed its investigation of Health Canada's privacy breach affecting over 40,000 licensees of the Marihuana Medical Access Program (MMAP), concluding that Health Canada violated federal privacy laws.

In November 2013, Health Canada sent written notices to over 40,000 individuals, outlining changes to the MMAP. The envelopes used for the mail-out clearly included the words "Health Canada - Marihuana Medical Access Program" on the return address, indicating to anyone who saw the envelopes that the recipient was either licensed to possess medical marihuana or to grow it for medical purposes. The envelopes were oversized so more likely to come to people's attention. Previously, Health Canada had been discreet in its communications with program members.

Three hundred and thirty nine affected individuals complained to the Office of the Privacy Commissioner, who initiated an investigation. The complainants cited several concerns relating to the impact of Health Canada's actions on their personal lives including concerns about losing their jobs, reputational damage and personal safety.

In a finding dated March 3, 2015, the Commissioner determined that Health Canada had violated the federal Privacy Act, which is designed to protect the privacy of Canadians when the federal government handles their sensitive information. The Commissioner's Finding was only sent to the 339 individuals who filed complaints with the Privacy Commissioner, but a copy of the document can be found here. Affected individuals who were not among the original complainants do not have to file additional complaints to the Commissioner, as the investigation is concluded.

The finding rejects the justifications put forward by Health Canada, which include blaming the patients for having gone to the media about the breach, which brought attention to the matter. The government also suggested that including the full name of the program instead of an abbreviation that would protect privacy was one of the "reasonable options" available to it under the law.

McInnes Cooper, Branch MacMaster LLP, Charney Lawyers, and Sutts Strosberg LLP are jointly representing affected users in an intended class action lawsuit against Health Canada filed in the Federal Court.

"It was clear to me, as soon as my phone started ringing in November 2013, that there was no justification for the careless error made by Health Canada in this case," said privacy lawyer David Fraser of McInnes Cooper. "It's one thing to acknowledge making a mistake, which Health Canada did, but immediately turning around to blame the victims is repulsive."

"We are pleased that the Privacy Commissioner of Canada agrees that Health Canada violated the law in its mishandling of patients' personal information," said David Robins of Sutts Strosberg LLP.

"Hundreds of people have reached out to us through our secure website for the class action to tell us how the breach has affected them, from lost jobs, effects on family relationships and social stigma. Each person who was a part of the MMAP was promised by Health Canada that their confidentiality would be protected," said Ted Charney of Charney Lawyers, adding that "the Commissioner is not able to award compensation to the victims or penalize Health Canada for its unlawful conduct, so the class action lawsuit is important in pursuing justice."

"We expect that the court hearing to ask that the case be blessed as a certified class action will take place in the early summer. If the judge agrees, we can move forward with the merits of the case," said Ward Branch of Branch MacMaster. "The privacy commissioner's report serves as a helpful roadmap for the case."

Affected class individuals are encouraged to register at While class members are not required to "opt in" to participate in the intended class action lawsuit, providing contact information and advising class counsel about how this privacy breach has affected you individually will help class counsel in bringing the case forward. Those who have already registered on the secure website do not need to re-register, but may want to update their information if their circumstances have changed or if they have experienced additional harms as a result of the breach.

About Branch MacMaster LLP

Branch MacMaster LLP is a boutique litigation law firm established in 1998 and located in Vancouver, British Columbia. The firm focuses on class actions, health, insurance, and personal injury. The firm provides responsive, flexible, and cost-effective service to their clientele.

About Charney Lawyers

Charney Lawyers is a Toronto, Ontario firm with an established reputation for excellence in advocacy. The firm is experienced in personal injury, class proceedings, commercial litigation, insurance defence, employment law, medical malpractice, food borne illness, construction law and appeals.

About McInnes Cooper

McInnes Cooper is among the top business and litigation law firms in Canada, with more than 200 lawyers in seven Canadian offices, serving clients across North America and abroad. The firm is a market leader in energy and natural resources, business, litigation, employment, tax, real estate and insurance law. McInnes Cooper is the exclusive member firm in Newfoundland, New Brunswick, Nova Scotia and Prince Edward Island for Lex Mundi – the world's leading network of independent law firms with in-depth experience in 100+ countries worldwide.

About Sutts Strosberg LLP

Sutts, Strosberg LLP is a nationally recognized law firm committed to excellence in litigation, with offices in Windsor and Toronto. The firm has a special interest in class actions, having represented groups or classes of individuals in every province and territory, and in every level of court, and is experienced in complex civil and commercial disputes, corporate, commercial and financial transactions, medical malpractice cases, personal injury cases, family law and criminal law.

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