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Government Law - Access to information and privacy - Protection of privacy - Personal information - Government or public information - Health and medical records - Unauthorized disclosure or release

Thursday, August 18, 2016 @ 8:00 PM  


Appeal by the Crown from an order certifying a class action proceeding brought by two anonymous plaintiffs on behalf of participants in the Marihuana Medical Access Program (MMAP). The plaintiffs’ action alleged that Health Canada sent oversized envelopes addressed in their names, and to 40,000 individuals registered in the MMAP, with the MMAP return address visibly marked on the envelope. The plaintiffs submitted that Health Canada’s manner of sending and labeling the envelopes entitled them to damages for breach of contract, negligence, breach of confidence, intrusion upon seclusion, and privacy-related Charter breaches. The damages claimed included costs for personal security, damage to reputation, loss of or reduced capacity for employment, and mental distress. The Crown opposed certification on the basis that the claim did not disclose a reasonable cause of action, that the common questions were overwhelmed by individual issues, and that a class action was not the preferable procedure. The motions judge granted the certification motion with costs, subject to amendment of the Charter-based claims and the naming of at least one publicly-identified class representative. The Crown appealed the certification order. The plaintiffs cross-appealed the requirement to name a publicly-identified class representative.

HELD: Appeal allowed in part and cross-appeal dismissed. The motion judge erred in finding the pleadings were sufficient to ground all of the causes of action claimed by conflating the test for determining whether the pleadings disclosed a reasonable cause of action with the standard of proof applicable to the other four certification requirements. The decision disclosed no analysis of what, if any, material facts were pled to support the various claims. There were no material facts supporting the existence of an enforceable contract, as there was no exchange of promises backed by consideration given that the terms of the MMAP were imposed by statute. There were no material facts supporting a claim based on intrusion upon seclusion, as there was no indication information was communicated to the public at large. However, the motion judge did not err in finding a viable cause of action in negligence and breach of confidence. The common issues related to those claims would advance the litigation. There was no error in determining that a class action was the preferable procedure. There was no error in requiring one named plaintiff as class representative. The order as to costs against the Crown was set aside.