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Home > Our Insights > A Glimpse Into The Future of Privacy Law: Medical Marijuana Privacy Breach Class Action Lawsuit Can Go Ahead in John Doe and Suzie Jones v. Her Majesty the Queen
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A Glimpse Into The Future of Privacy Law: Medical Marijuana Privacy Breach Class Action Lawsuit Can Go Ahead in John Doe and Suzie Jones v. Her Majesty the Queen

Published:

July 29, 2015

Author(s):

  • Jane O’Neill, KC
  • David Fraser

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On July 27, 2015, the Federal Court of Canada decided a lawsuit by medical marijuana program participants against the Federal Government alleging Health Canada violated their privacy rights is an appropriate case for a class action and can proceed as such. This latest decision is still a preliminary, though critical, procedural step – but offers a tantalizing glimpse into what the future of privacy law in Canada might hold. McInnes Cooper’s David Fraser, Jane O’Neill and Dan Wallace, along with several other law firms, represent the claimants in this class action.

In November 2013, Health Canada sent written notices to over 40,000 Marihuana Medical Access Program clients in envelopes clearly displaying the names of both the Program and the recipients. This latest decision is still a preliminary – though critical – procedural step. The Federal Court decided to certify the lawsuit as a class action, thus giving it the go ahead to proceed as such, based on a three part test. The decision suggests that courts recognize the growing significance of privacy interests in Canada – and will allow privacy law in Canada to develop to respond:

Privacy Rights Are Serious. The Court had to decide whether a class action lawsuit is the most preferable procedure for this case, keeping in mind the three goals of class actions, one being behaviour modification. Its comments that it must consider behaviour modification from the perspective of the whole government rather than just one department, its whole communication process rather than “just one slip-up”, and the public’s awareness and enforcement of privacy interests are particularly notable: they seem to sound a caution that the public takes privacy rights seriously – and so should the government and everyone else.

“Novel” Privacy Claims. The Court also had to decide whether and which of the six legal claims that the class of claimants set out in the lawsuit establishes a “reasonable legal claim”. The Court acknowledged the rapid development of privacy rights and signalled a reluctance to limit it at this stage of the lawsuit – and decided all six legal claims can proceed, including two “novel” ones:

  • Publicity Given to Private Life. The Court acknowledged that this legal wrong is “truly novel in Canada”, but citing potential parallels in the US and Europe, decided it should permit this claim to proceed.
  • Intrusion Upon Seclusion. The Court noted this claim is “somewhat novel”, but noting a prior decision of the Ontario Court of Appeal recognizing it, permitted it to proceed. And although the Court didn’t mention it, the Federal Court of Appeal recently certified another privacy class action based on intrusion upon seclusion in Condon v. Canada, 2015 FCA 159.  Read more about that decision in David Fraser’s blog, Canadian Privacy Law Blog.

Read the Federal Court’s decision in John Doe and Suzie Jones v. Her Majesty the Queen, 2015 FC 916 here.

This decision is the most recent procedural step the claimants are required to take to proceed with their class action.  A class action requires those suing to take numerous procedural steps before they even get to the substance of the lawsuit; the fact that this one involves privacy rights added a couple of additional steps to protect the claimants’ identities. For more on the Medical Marihuana Privacy Breach Class Action, go to https://www.mcinnescooper.com/services/class-actions/privacyclassaction/.

In addition to this lawsuit, some Program participants made a complaint to the Office of the Privacy Commissioner of Canada. In March 2015, the Commissioner concluded that Health Canada’s mailout violated federal privacy laws. For more on the Privacy Commissioner’s decision, read McInnes Cooper’s: Wait A Minute Mr. Postman … 3 Lessons Health Canada’s Privacy Breach Delivers To The Private Sector.


Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Privacy Law Team to discuss this topic or any other legal issue.


McInnes Cooper has prepared this document for information only; it is not intended to be legal advice.  You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2015.  All rights reserved.  McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it.  You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.

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  • Jane O'Neill, QC

    Jane O’Neill, KC

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  • David Fraser

    David Fraser

    Privacy Lawyer | Partner

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  • Privacy, Data Protection and Cyber Security
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    On January 15, 2015, the software provisions of Canada’s Anti-Spam Legislation (CASL) will take effect.  CASL’s anti-spam sections, touted…

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    Publication
  • Complying with Canada’s Anti-Spam Legislation (CASL): A blueprint for the construction industry

    Dec 1, 2014

    The construction industry - project owners, contractors, subcontractors and trades - might be relaxing, ignoring the hype around Canada’s…

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    Publication
  • Thou Shalt Not Lie: SCC Recognizes New Duty of Honesty in Contract Law in Bhasin v. Hrynew

    Nov 14, 2014

    On November 13, 2014, the Supreme Court of Canada (SCC) effected a significant development in Canadian contract law by recognizing the…

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    Publication
  • NS Proposes New Limitation of Actions Act: The 3 Top Benefits & The 10 Key Changes

    Nov 3, 2014

    Note: On November 20, 2014 the NS Government passed the final form of Bill 64, Limitations of Actions Act into law. The final form of the Act…

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    Publication
  • Complying With Canada’s Anti-Spam Legislation (CASL): Protecting Directors & Officers from Personal Liability

    Oct 14, 2014

    CASL’s anti-spam sections came into force on July 1, 2014. Every organization that CASL affects should now be complying with it – and their…

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    Publication
  • Changes to NB Rules of Court Effective October 1, 2014 Benefit Successful Party

    Sep 9, 2014

    Effective October 1, 2014, the New Brunswick Rules of Court will change – some Rules for the first time since they came into effect in 1982.…

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    Publication
  • Complying With Canada’s Anti-Spam Law (CASL) – Foreign Organizations Doing Business in Canada Need to Pay Attention

    Aug 1, 2014

    Most Canadians have heard about Canada’s Anti-Spam Legislation (CASL): we’ve been bombarded with “CASL Compliant” emails asking us to…

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    Publication
  • SCC Protects Internet Users’ Expectation of Privacy In Online Activities in R. v. Spencer

    Jun 16, 2014

    On June 13, 2014 the Supreme Court of Canada decided that Canadians have a reasonable expectation of privacy in their online activities, and…

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    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL) – The Last Minute Guide to Preparing For CASL

    Jun 12, 2014

    The countdown to CASL is almost over: there are only 13 business days until the anti-spam provisions of CASL – and most of the penalties for…

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    Publication
  • Court Orders Feds to Reconsider Canadian Forces Housing Compensation Policy in Brauer v. The Queen

    May 26, 2014

    On May 23, 2014 the Federal Court of Canada decided the Federal Treasury Board Secretariat’s interpretation of the policy for compensating…

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    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL) –10 Steps to Prepare for CASL

    May 8, 2014

    On July 1, 2014 – less than two months from now - the anti-spam sections of Canada’s Anti-Spam Legislation (CASL) take effect. Individuals…

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    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL) – Does CASL Make You A “Spammer”?

    Apr 15, 2014

    The countdown to CASL is on: on July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (“CASL”) take effect. Individuals…

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    Publication
  • Cloud Computing: A Privacy FAQ

    Mar 19, 2014

    As organizations turn to cloud computing services, ensuring compliance with legislation and reducing privacy risks is key. In Canada, there is…

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    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL): 10 Reasons Why You Should Care About The Upcoming CASL Right Now

    Feb 28, 2014

    On July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (aka “CASL”) will take effect. CASL is: Broad. It applies…

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    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL) – What You Need to Know Now

    Feb 28, 2014

    On July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (aka “CASL”) take effect. CASL will apply to just about every…

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    Publication
  • Privacy in Computer Contents: Supreme Court of Canada Picks Up Where It Left Off in R. v. Vu

    Nov 8, 2013

    On November 7, 2013, the SCC decided police require specific authorization in a search warrant to search the data in a computer because of the…

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    Publication
  • A Practical Analysis of “Material Fact”

    May 21, 2013

    In its April 2013 decision in Re Stan, the Alberta Securities Commission provides issuers with a practical approach to the assessment of both a…

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    Publication
  • Legal Update: The Duty to Consult – Important Lessons from Canada’s Mining Sector

    Mar 15, 2013

    Recent developments in Ontario and Yukon are an important reminder of the practical implications of the Crown’s legal Duty to Consult with…

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    Publication
  • Students with Learning Disabilities Have a Right to Education Comparable to that of the General Student Population in Moore v. British Columbia (Education)

    Jan 8, 2013

    On November 19, 2012, the Supreme Court of Canada (SCC) unanimously ruled a B.C. public school system’s failure to provide adequate and…

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    Publication
  • Supreme Court of Canada Confirms Employees May Have a Limited Reasonable Expectation of Privacy In Work Computer in R. v. Cole

    Nov 28, 2012

    On October 19, 2012 the Supreme Court of Canada (SCC) decided that a teacher criminally charged with possession of child pornography and…

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    Publication
  • Legal Alert: SCC Finds Limited Reasonable Expectation of Privacy In Work Computer But Evidence Still Admissible

    Oct 22, 2012

    Mr. Cole was a high school teacher with an employer owned and issued laptop computer.  He also used it for incidental personal purposes, which…

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    Publication
  • Ontario Court of Appeal Finds Reasonable Expectation of Privacy in Work Computer

    May 6, 2011

    In March 2011, the Ontario Court of Appeal found that an employee had a limited expectation of privacy in the contents of a work computer. The…

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    Publication
  • Legal Update: Cloud Computing and Privacy FAQ

    Apr 7, 2011

    Note: Click here to read an updated version of this Legal Update in Cloud Computing: A Privacy FAQ as seen in as seen in CCCA Magazine, Spring…

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    Publication
  • Contamination Claims: Long Tails or Just Dogs? Practical and Legal Issues of Litigation Contamination Slow-Leak Cases

    Mar 6, 2009

    “Contamination Claims: Long Tails or Just Dogs? Practical and Legal Issues of Litigating Contaminant Slow-Leak Cases”, Cdn Journal of…

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    Publication

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