On July 27, 2015, the Federal Court conditionally certified a class action with respect to an alleged privacy breach arising from the federal government's administration of the Marihuana Medical Access Program (the Program). In D v Her Majesty the Queen, 2015 FC 916, the plaintiffs alleged that Health Canada publicly identified them as members of the Program by mailing oversized envelopes which had the return address of the "Marihuana Medical Access Program" visible on the outside. The certified class could include the approximately 40,000 people who received these envelopes between November 12 and 15, 2013. The plaintiffs claim that these envelopes had adverse impacts on their lives, including having their neighbours and employers discover that they are participants in the Program, and causing security concerns, in that the disclosure could potentially make them the targets of crime. The plaintiffs allege a number of causes of action, including negligence, breach of contract, the tort of intrusion upon seclusion, as well as the "truly novel" tort of publicity given to private life (which is made out when publicity is given to a matter concerning the private life of another, and the matter publicized is of a kind that: (i) would be highly offensive to a reasonable person; and (ii) is not of legitimate concern to the public).
Test for Class Certification
The Court stated that class action provisions in the Federal Courts Rules should be construed generously to achieve the objectives of: (i) judicial economy; (ii) access to justice; and (ii) behaviour modification (by deterring wrongdoers from "minor but widespread harms").
Justice Phelan found that the plaintiffs had satisfied each of the five requirements for class certification, subject to a few amendments to the Statement of Claim.
First, the plaintiffs' six claims were sufficiently pleaded to disclose a reasonable cause of action. The Court found that it was not plain and obvious that the actions could not succeed as pleaded (even the potentially new tort of publicity given to private life), and as such, did not strike any of the six.
Next, the Court found there were sufficient common questions of law and fact to move the litigation forward. The fact that remaining issues of liability and damages would have to be decided individually after trial did not prevent the commonality requirement from being met. Similarly, the Court found that a class action was the preferable procedure, since access to justice would be enhanced by the resolution of the common issues and there were few practical alternatives. The federal government's arguments that several thousand individual claims would burden the class action actually supported the preference for certification, when compared to the alternative of a multitude of individual actions. There were no disputes over the requirements of an identifiable class or a litigation plan.
The Court did take issue with the plaintiffs' proposal to have an anonymous representative plaintiff, but plaintiff's counsel indicated that there might be an individual willing to be publicly identified as a class representative, and as such, the Court allowed the plaintiffs to amend the Statement of Claim to identify a representative, if feasible.
The Court granted the order subject to the amendments mentioned above, and the plaintiffs will likely proceed as a certified class. It remains to be seen if the Federal Government will appeal, but for now, another major hurdle to the success of this case has been overcome. Observers will continue to keep a close eye to watch how the courts will deal with the new privacy torts and the Charter claims. The outcome of this case could have a lasting impact on Canadian privacy law and the duties imposed on the Federal Government.