Privacy breach class action certified against Government of Canada for medical marijuana breach

In a decision issued on July 27, 2015 but not yet published (but available here as a PDF), the Federal Court of Canada has certified a class action against the Government of Canada for disclosing the personal health information of participants in the "Marihuana Medical Access Program" in a botched mailout that was intended to advise program participants about changes to the regulation, which ironically where said to protect privacy and safety.

In November 2013, Health Canada sent notices to over 40,000 participants of the Marihuana Medical Access Program (MMAP) to advise of changes to regulations governing the use of medical marijuana in Canada. The notices were delivered in oversized envelopes that had the words “Health Canada - Marihuana Medical Access Program” on the return address, revealing to anyone who saw the envelope that the recipient was licensed to possess or produce medical marihuana for medical purposes. Previously, Health Canada’s mailings to MMAP members were discreet and made no mention of marijuana on the envelopes. Despite the Government of Canada’s acknowledgement of the error and that it was outside their normal practice, its reaction has consistently been "no harm, no foul".

What's most notable about this decision -- which is consistent with the recent decision in Condon v. Canada -- is that the court certified the plaintiffs' claim under the novel tort of "public disclosure of private facts". This tort is recognized in the United States, but is untested in Canada. It is a part of the four different privacy torts recognized by the Ontario Court of Appeal in Jones v. Tsige.

In March 2015, the Privacy Commissioner of Canada found that Health Canada's breach was a violation of the Privacy Act. At the certification hearing, the Government of Canada argued that the Privacy Commissioner's finding should be enough to satisfy everyone harmed by the breach, but the Court noted that the Commissioner can't award any of the damages sought by the plaintiffs.

Full disclosure: My firm is one of the firms representing the plaintiffs.

From the firms' media release:

Federal Court certifies privacy class action by Medical Marijuana patients against Health Canada

FOR IMMEDIATE RELEASE - July 28, 2015

The Federal Court of Canada has certified a class action commenced on behalf of more than 40,000 medical marijuana licensees alleging that Health Canada violated their privacy.

In November 2013, Health Canada sent notices to over 40,000 participants of the Marihuana Medical Access Program (MMAP) to advise of changes to regulations governing the use of medical marijuana in Canada. The notices were delivered in oversized envelopes that had the words “Health Canada - Marihuana Medical Access Program” on the return address, revealing to anyone who saw the envelope that the recipient was licensed to possess or produce medical marihuana for medical purposes. Previously, Health Canada’s mailings to MMAP members were discreet and made no mention of marijuana on the envelopes. Despite the Government of Canada’s acknowledgement of the error, it insists that no one was harmed by the breach.

In March 2015, the Office of the Privacy Commissioner of Canada concluded that Health Canada violated federal privacy laws. However, in the recent certification decision, the Court found that the class action is necessary to provide access to justice because the Privacy Commissioner cannot order the Government of Canada to compensate class members harmed by the breach. The Government has 30 days to appeal the certification decision.

McInnes Cooper, Branch MacMaster LLP, Charney Lawyers, and Sutts Strosberg LLP are jointly representing the plaintiffs in the medical marijuana privacy breach class action filed in the Federal Court against the Government of Canada. The plaintiffs seek damages for breach of contract, breach of confidence, invasion of privacy and Charter violations.

“We are very glad to see this case moving forward. The certification decision means that the Court has agreed that this is an appropriate case for a class action and that allowing all of the class members to proceed in a group is in the interests of justice,” said Ward Branch of Branch MacMaster LLP. “The Government of Canada has fought us at every turn, but have also lost each motion to date. We are hopeful that they will now see the wisdom of sitting down to resolve the issues created by this error.”

“This is not over yet, but the thousands of affected program members should take some comfort that every legal claim we advanced on their behalf has been approved to go forward,” said David Fraser of McInnes Cooper.

“As citizens of this great country, we rely on our government to protect our sensitive personal information from being disclosed and to protect our privacy during all communications. This decision sends a clear message to the government that our Courts consider privacy to be of the utmost importance and expect our government to take its privacy obligations seriously or face the consequences,” said Ted Charney of Charney Lawyers.

“Over one thousand people have registered on our secure website to tell us how the breach affected them. We will continue to pursue justice for those harmed by the breach,” said David Robins of Sutts, Strosberg LLP.

While it is not necessary to “opt in” to participate in the class action, class members are urged to visit the www.marijuanaclassaction.com website to obtain updates and to register because the information collected on the secured site will assist class counsel in communicating with class members and moving the case forward. Those who have already registered do not need to re-register but should update their information if their circumstances change or to report further harm suffered from the breach.

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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.

For more information or to request an interview, please contact:

Ashley LeCroy
Manager, Marketing & Communications
902.457.5667
media@mcinnescooper.com

For more background, check out these previous posts.

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).