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
July 29, 2015
By Jane O'Neill, QC, Litigation Lawyer | Partner at McInnes Cooper,
David Fraser, Privacy Lawyer | Partner at McInnes Cooper
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 http://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.
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