Docket: T-1931-13
Citation:
2015 FC 916
Ottawa, Ontario, July 27, 2015
PRESENT: The Honourable Mr. Justice Phelan
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PROPOSED
CLASS ACTION
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BETWEEN:
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JOHN DOE AND
SUZIE JONES
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Plaintiffs
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and
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HER MAJESTY THE
QUEEN
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Defendant
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ORDER AND REASONS
I.
Introduction
[1]
This is a motion for certification as a class
proceeding pursuant to Rules 334.16(1) and 334.17 of the Federal Courts
Rules, SOR/98-106.
[2]
In this action, the Plaintiffs plead that the
Defendant publicly identified them as participants in the Marihuana Medical
Access Program [MMAP or the Program] by sending letters in oversized envelopes
through the mail system in November 2013 with the return address “Marihuana Medical Access Program”.
[3]
At the hearing of this motion, the Plaintiffs
tendered a Third Amended Statement of Claim, which for purposes of this motion
will be considered the pleading at issue.
[4]
The pertinent Rule for consideration here is R
334.16(1):
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334.16 (1) Subject to subsection (3),
a judge shall, by order, certify a proceeding as a class proceeding if
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334.16
(1) Sous réserve du paragraphe (3), le juge autorise une instance comme
recours collectif si les conditions suivantes sont réunies :
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(a) the pleadings disclose a reasonable cause of action;
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a) les
actes de procédure révèlent une cause d’action valable;
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(b) there is an identifiable class of two or more persons;
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b) il
existe un groupe identifiable formé d’au moins deux personnes;
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(c) the claims of the class members raise common questions
of law or fact, whether or not those common questions predominate over
questions affecting only individual members;
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c) les réclamations des membres du groupe
soulèvent des points de droit ou de fait communs, que ceux-ci prédominent ou
non sur ceux qui ne concernent qu’un membre;
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(d) a class proceeding is the preferable procedure for the
just and efficient resolution of the common questions of law or fact; and
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d) le recours collectif est le meilleur
moyen de régler, de façon juste et efficace, les points de droit ou de fait
communs;
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(e) there is a representative plaintiff or applicant who
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e) il existe un représentant demandeur qui
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(i) would fairly
and adequately represent the interests of the class,
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(i) représenterait de façon équitable et adéquate les intérêts du
groupe,
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(ii) has prepared
a plan for the proceeding that sets out a workable method of advancing the
proceeding on behalf of the class and of notifying class members as to how
the proceeding is progressing,
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(ii) a élaboré un plan qui propose une méthode efficace pour
poursuivre l’instance au nom du groupe et tenir les membres du groupe
informés de son déroulement,
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(iii) does not
have, on the common questions of law or fact, an interest that is in conflict
with the interests of other class members, and
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(iii) n’a pas de conflit d’intérêts avec d’autres membres du
groupe en ce qui concerne les points de droit ou de fait communs,
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(iv) provides a
summary of any agreements respecting fees and disbursements between the
representative plaintiff or applicant and the solicitor of record.
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(iv) communique un sommaire des conventions relatives aux
honoraires et débours qui sont intervenues entre lui et l’avocat inscrit au
dossier.
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II.
Background
[5]
John Doe (an obvious cover for his real name as
both Plaintiffs do not wish to be further publicly identified) resides in Nova
Scotia and is employed in the health care field. He holds an authorization
under the Medical Marihuana Access Regulations, SOR/2001-227 (now
replaced by the Marihuana for Medical Purposes Regulations,
SOR/2013-119) to possess and produce marihuana for his own use. His affidavit
in support of this motion outlines some of the impact on his privacy – the
Defendant argued that the Statement of Claim did not disclose any instances of
damage.
[6]
Suzie Jones resides in Ottawa, Ontario, and
holds an authorization to possess marihuana. Her affidavit also lays out her
privacy concerns flowing from disclosure of her circumstances being a
participant in the Program.
[7]
While reliance on proven facts is not a relevant
matter for the issue of whether the pleadings disclose a “reasonable cause of action” (see Condon v Canada,
2015 FCA 159 [Condon]), some factual basis must be established – Pro-Sys
Consultants Ltd v Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477 [Pro-Sys]
– to support the motion.
[8]
The MMAP required that each person seeking an
authorization a) to possess (ATP); b) to grow for a person holding an
authorization to possess (DPPL); or c) to possess and produce marihuana for
their personal medical use (PUPL), had to apply to the Minister of Health.
In
so doing, an applicant (including these Plaintiffs) had to provide a mailing
address and to notify Health Canada of any changes to their mailing address.
[9]
Based on the application form required by Health
Canada, the Plaintiffs rely on what they call the privacy commitments:
A3 Appointed Representative
This section is optional
You may appoint a representative to speak to
Health Canada on your behalf. Health Canada will be authorized to exchange
information about your case – including personal data and material contained in
your medical records – with an appointed representative that you choose (for
example, a family member or friend)
Should you not provide this consent,
Health Canada will communicate only with and through you.
A5 Authority to Communicate to Canadian
Police
To reduce the possibility of police
intervention when you engage in activities allowed under your authorization or
licence, if asked, Health Canada will communicate limited authorization and
licence information to Canadian police in response to a request in the
context of an investigation under the Controlled Drugs and Substances Act
or the Marihuana Medical Access Regulations. [emphasis added]
[10]
The Plaintiffs also rely on Info Source, the
Canadian Government publication detailing the data banks governed by the Privacy
Act, RSC 1985, c P-21, and the Access to Information Act, RSC 1985,
c A-1; specifically the description of the MMAP database, which details very
limited circumstances for disclosure, none of which are applicable in this litigation.
[11]
Contrary to past practice where Health Canada
addressed correspondence with the Plaintiffs and proposed Class Members in
relation to the MMAP without reference to the Program or to marihuana, between
November 12 and 15, 2013, Health Canada sent correspondence to approximately
40,000 individuals registered in the MMAP. The envelope made visible the name
of the individual and the name of the program. This is known as the “Privacy Breach”.
[12]
The Plaintiffs spent considerable effort and
evidence establishing how Health Canada caused the breach. The Court need not
consider the ins and outs of this issue now.
[13]
The Plaintiffs have established and the
Defendant has essentially acknowledged that on November 21, 2013, the Deputy
Minister of Health Canada issued a statement on its website acknowledging an
administrative error on the labelling of the envelope and that this was not a
standard of Health Canada.
[14]
The Defendant in argument attempted to explain
away the incident, that individuals were protected by Canada Post Corporation’s
code of conduct (at least in respect to privacy disclosure to its employees),
that all parties relied on Canada Post and that disclosure of names and
addresses is not actionable.
All
of that may be true but those matters may be appropriate defences at trial, not
on this motion.
[15]
On March 3, 2015, the Privacy Commissioner,
following the receipt of 339 complaints from individuals who alleged the
Privacy Breach had adverse impact on their lives, concluded that the complaints
were well-founded and that Health Canada had violated the Privacy Act by
referencing the Program in conjunction with the addressee.
[16]
The Defendant objected to the introduction of
the Privacy Commissioner’s Report but argued that the Report does not establish
malice or bad faith. In the absence of malice, the Defendant says that s 74 of
the Privacy Act acts as a bar to recovery.
[17]
The Privacy Commissioner’s Report is relevant to
the issue of “some basis in fact” in support of
the certification motion. As to malice or bad faith and whether there is some
legislative bar to any of the causes of action, that has not been established
as “plain and obvious”. The Defendant may rely
on that position in defence or on some other motion at a later date.
[18]
The Plaintiffs wish to define the Class as:
All persons who were sent a letter from
Health Canada in November 2013 that had the phrase “Marihuana Medical Access
Program” or “Programme d’acces a la marihuana a des fins medicales” visible on
the front of the envelope.
[19]
The Plaintiffs claim Health Canada perpetuates
the risk to the safety and security of Canadians by:
a)
delivering the letter to the Plaintiffs and
other Class members in the envelope which discloses the association with the
MMAP and the entitlement to possess and/or produce marihuana; and,
b)
disclosing the same to Canada Post and/or others
who are not bound by confidentiality obligations.
[20]
The Plaintiffs further claim that a reasonable
person viewing the envelope would conclude that the addressee is associated
with the Program, holds an authorization, suffers a grave or debilitating
medical condition and possesses/consumes marihuana [the Personal Information].
[21]
Finally, the Plaintiffs claim that the Privacy
Breach created reasonable security concerns and neither the Plaintiffs nor any
proposed Class Member consented to the disclosure of this Personal Information.
[22]
The Defendant generally engages in a factual
dispute, which is not relevant in this motion except on the issue of “some basis in fact”. In summary, the Defendant
contends:
•
no supporting facts are alleged in the claim
that Personal Information was disclosed;
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the only actual disclosure alleged is to Canada
Post and that the Plaintiffs merely fear further disclosure;
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any disclosure to Canada Post employees is
protected by its Code of Conduct;
•
John Doe made prior disclosure to Canada Post in
his mailings;
•
the Plaintiffs have not shown that there has
been disclosure beyond Canada Post;
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the illness of the Plaintiffs may be visible and
any production of marihuana is likely known due to odour and other factors; and,
•
there are no material facts alleged to show that
Health Canada was “high-handed, outrageous, reckless,
wanton, entirely without care, deliberate, callous, disgraceful, wilful and in
disregard of the rights of the Plaintiffs and other Class Members”.
This position is related to the Defendant’s argument that the Plaintiffs have not
pleaded bad faith/malice to counter the effects of s 74 of the Privacy Act.
[23]
The sole issue is whether this action should be
certified as a class proceeding.
III.
Analysis
[24]
The Court has already referred to the test of “some basis in fact” and it is referenced to Pro-Sys.
In AIC Limited v Fischer, 2013 SCC 69, [2013] 3 S.C.R. 949, the Court
clarified that the evidentiary record in these motions need not be exhaustive
and is not a record on which to argue the merits.
[25]
The approach this Court should take and the
purpose of the Rule is set out in paragraphs 64-65 of the decision of the
BC Court of Appeal in Pro-Sys Consultants Ltd v Infineon Technologies AG,
2009 BCCA 503, 312 DLR (4th) 419:
[64] The provisions of the CPA
should be construed generously in order to achieve its objects: judicial
economy (by combining similar actions and avoiding unnecessary duplication in
fact-finding and legal analysis); access to justice (by spreading litigation
costs over a large number of plaintiffs, thereby making economical the
prosecution of otherwise unaffordable claims); and behaviour modification (by
deterring wrongdoers and potential wrongdoers through disabusing them of the assumption
that minor but widespread harm will not result in litigation): Western
Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534
at paras. 26-29 [Western Canadian Shopping Centres]; Hollick v.
Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158 at para. 15 [Hollick].
[65] The certification hearing
does not involve an assessment of the merits of the claim; rather, it focuses
on the form of the action in order to determine whether the action can
appropriately go forward as a class proceeding: Hollick at para. 16. The
burden is on the plaintiff to show "some basis in fact" for each of
the certification requirements, other than the requirement that the pleading
disclose a cause of action: Hollick, at para. 25. However, in conformity
with the liberal and purposive approach to certification, the evidentiary
burden is not an onerous one -- it requires only a "minimum evidentiary
basis": Hollick, at paras. 21, 24-25; Stewart v. General Motors
of Canada Ltd., [2007] O.J. No. 2319 (S.C.J.) at para. 19. As stated in Cloud
v. Canada (Attorney General) (2004), 247 D.L.R. (4th) 667 at para. 50, 73
O.R. (3d) 401 (C.A.), leave to appeal ref'd [2005] S.C.C.A. No. 50 [Cloud],
[O]n a certification motion the court
is ill equipped to resolve conflicts in the evidence or to engage in finely
calibrated assessments of evidentiary weight. What it must find is some basis
in fact for the certification requirement in issue.
[26]
As the Ontario Court of Appeal noted in Biladeau
v Ontario (Attorney General), 2014 ONCA 848, 247 ACWS (3d) 313, the
statement of claim is to be read as generously as possible with a view to
accommodating any inadequacies in the allegations.
[27]
On the threshold question of “some basis in fact”, I find that the Plaintiffs have
established sufficient basis for this Court to consider the other elements of
the certification analysis. The Privacy Commissioner’s Report, a public
document, is itself sufficient for these purposes, as is the other evidence
filed.
A.
Reasonable Cause of Action
[28]
The Plaintiffs plead six causes of action:
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breach of contract and warranty;
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negligence;
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breach of confidence;
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intrusion upon seclusion;
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publicity given to public life; and,
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breach of Charter right to privacy.
[29]
With respect to the Defendant’s submission that
s 74 of the Privacy Act is a bar because the Plaintiffs have not
specifically pleaded bad faith/malice, the Plaintiffs, by using words such as
high-handed, wanton, callous, etc., as described in paragraph 22, have pleaded
more than sufficiently to raise the matter of bad faith/malice.
[30]
The test for striking a cause of action is that
it is “plain and obvious” that the action cannot
succeed as pleaded.
B.
Re: Breach of Contract/Warranty
[31]
The Plaintiffs plead that there was an implied
or expressed agreement or undertaking. That is sufficient basis as a pleading
to ground the cause of action. Whether in law a contractual relationship was
created is a matter for trial.
[32]
It may be that what is at issue is something
akin to legitimate expectation and if so, is breach compensable but it would be
premature to strike the claim as pleaded.
C.
Re: Negligence and Breach of Confidence
[33]
The Plaintiffs have adequately pleaded the cause
of action. The Defendant’s complaint is largely that the pleading is deficient
on tangible damages.
[34]
As the Federal Court of Appeal recently held in Condon,
at paragraph 20:
… the Rules only require that the claim
specify the nature of the damages claimed. A general description of the nature
of the damages claimed was sufficient in Brazeau v. Canada (Attorney
General), 2012 FC 648, [2012] F.C.J. No. 1489, to deny a motion to strike
that part of the pleadings related to a negligence claim.
[35]
The Plaintiffs have, in respect to negligence,
pleaded the duty of care, the statutory duty, the breach of the duty and nature
of harm. In respect of the tort of breach of confidence, the Plaintiffs have
pleaded the confidence relied on and the breach/misuse.
[36]
Therefore, these pleadings are sufficient for
purposes of this motion. Whether some or all of the Class will be successful is
not a basis for striking the claim.
D.
Re: Intrusion upon Seclusion
[37]
This claim is somewhat novel but it follows the
reasoning in Jones v Tsige, 2012 ONCA 32, 346 DLR (4th) 34 [Jones],
which recognized the common law tort of invasion of privacy and intrusion upon
seclusion.
[38]
The nature of the tort is set out at paragraphs
70-71 of Jones:
[70] I would essentially adopt as the
elements of the action for intrusion upon seclusion the Restatement (Second)
of Torts (2010) formulation which, for the sake of convenience, I repeat
here:
One who intentionally intrudes,
physically or otherwise, upon the seclusion of another or his private affairs
or concerns, is subject to liability to the other for invasion of his privacy,
if the invasion would be highly offensive to a reasonable person.
[71] The key features of this cause of
action are, first, that the defendant’s conduct must be intentional, within
which I would include reckless; second that the defendant must have invaded,
without lawful justification, the plaintiff’s private affairs or concerns; and
third, that a reasonable person would regard the invasion as highly offensive
causing distress, humiliation or anguish. However, proof of harm to a
recognized economic interest is not an element of the cause of action. I return
below to the question of damages, but state here that I believe it important to
emphasize that given the intangible nature of the interest protected, damages
for intrusion upon seclusion will ordinarily be measured by a modest
conventional sum.
[39]
The Defendant’s objection is the same “bad faith” issue discussed earlier and the absence of
sufficient pleading. I cannot accept either argument for reasons given that the
Plaintiffs have pleaded reckless intrusion, highly offensive to a reasonable
person, and done without justification.
[40]
The pleading is sufficient – its novelty is not
a basis for striking. The area of privacy rights, either by statute, contract
or tort, is developing rapidly. It is a new area and its development or
limitation should not be decided at this stage of the litigation.
E.
Re: Publicity Given to Private Life
[41]
This tort is truly novel in Canada but it
appears to be an extension of the tort of intrusion upon seclusion. It is
described in the Restatement (Second) of Torts as:
One who gives publicity to a matter
concerning the private life of another is subject to liability to the other for
invasion of his privacy, if the matter publicized is of a kind that
a) would be highly offensive to a reasonable person and
b) is not of legitimate concern to the public.
[42]
There are some parallels to the concept in
continental Europe. Like intrusion upon seclusion, it is a concept that should
not be readily dismissed at an early stage of litigation. Inferences may have
to be drawn or courts may decline to draw inferences (in the future) however
that does not justify striking the claim on this matter.
[43]
I note that in Grant v Winnipeg Regional
Health Authority, 2015 MBCA 44, 252 ACWS (3d) 237, the Manitoba Court of
Appeal acknowledged this tort in an appeal of an appeal from a Master who had
struck parts of a statement of claim because it disclosed no reasonable cause
of action.
The
situation with this tort is reminiscent of the motion in Foss v Harbottle,
where negligence was attempted to be struck out.
F.
Re: Breach of Charter Rights
[44]
The Plaintiffs’ claim in respect of sections 7
and 8 of the Charter is more troublesome. With respect to s 7, the
Plaintiffs do not plead how the interest is engaged, infringed or not in
accordance with principles of fundamental justice. This is a matter which may
be resolved by an amendment to pleadings which, since the Defendant has not
filed a Statement of Defence, is a simple matter.
[45]
The pleading in respect to s 8 is at least
opaque. It is hard to see how the matters in issue are in any way related to
the powers of search and seizure.
[46]
Were it not for the need to make some other
amendments to the Statement of Claim, I would have struck this claim. However,
since the Plaintiffs will be amending the action, the Plaintiffs will have an
opportunity to correct this pleading or potentially withdraw it.
G.
Identifiable Class of Two or More
[47]
There is no dispute on this issue. The class is
not overly broad although it could involve thousands of individuals,
approximately 1,805 have already registered with Class Counsel.
[48]
The identity of the class representative is a
separate issue.
H.
Common Questions of Law and Fact
[49]
Based on Western Shopping Centres Inc v
Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, the question is whether allowing
certification will avoid duplication of fact-finding or legal analysis.
[50]
The Plaintiffs advance the following common
questions:
Breach of Contract
1. Did
the Class Members enter into a contract with Health Canada (the “Contract”)?
2. If
yes, did the Contract contain express or implied terms that Health Canada
would:
a. keep the Personal Information confidential?
b. not to use or disclose the Personal Information except as
permitted by the Contract or by applicable statutes, including the Privacy
Act?
3. If
yes, did Health Canada’s conveyance of the Envelope breach any of the terms of
the Contract listed in paragraph 2 above?
Breach of Warranty
1. Did
Health Canada warrant to the Class Members that it would:
a. keep the Personal Information confidential?
b. not use or disclose the Personal Information except as
permitted by the Contract or by applicable statues, including the Privacy
Act?
2. If
yes, did Health Canada breach its warranty to the Class Members when it
conveyed the Envelope?
Negligence
1. Did Health Canada owe the Class Members a
duty of care in its collection, use, retention and disclosure of the Personal
Information?
2. If
yes, did Health Canada breach that duty of care when it sent the Envelope?
Breach of Confidence
1. Did
the Class Members communicate the Personal Information to Health Canada?
2. If
yes, did Health Canada misuse the Personal Information in its collection, use,
retention or disclosure of the Personal Information?
3. If
yes, was such misuse of the Personal Information to the detriment of the Class
Members?
4. If
yes, did Health Canada breach the confidence of the Class Members in its
collection, retention or disclosure of the Personal Information?
Intrusion upon Seclusion
1. Did
Health Canada wilfully or recklessly invade the privacy of or intrude upon the
seclusion of the Class Members in its collection, use, retention or disclosure
of the Personal Information in a manner that would be highly offensive to a
reasonable person?
2. Did
Health Canada commit the tort of invasion of privacy?
3. If
the answer to paragraphs 1 or 2 is yes, did Health Canada have a lawful
justification for invading the Class Member’s privacy?
Publicity to Public Life
1. Did
Health Canada give publicity to the Personal Information?
2. If
yes, is the Personal Information of any legitimate concern to the public?
3. If
no, is the disclosure of the Personal Information by Health Canada highly
offensive to a reasonable person?
4. If
yes, is Health Canada liable for publicity given to private life?
Charter Right to Privacy
1. Did
the Class Members have a reasonable expectation of privacy pursuant to sections
7 and 8?
2. Did
Health Canada violate the Class Members right to life, liberty or security of
their persons?
3. If
yes to 1, did Health Canada’s sending of the Envelopes breach the reasonable
expectation of privacy?
4. If
yes to either 2 or 3, is such a breach justifiable under section 1?
Damages
1. Is
the Defendant liable to pay damages incurred by the Class Members for the
causes of actions?
2. Can
the Class Members’ damages be assessed in the aggregate pursuant to Rule
334.28(1)?
3. Does
Health Canada’s conduct justify an award of punitive or aggravated damages?
4. Does
Health Canada’s conduct justify an award of damages under the Charter?
5. Are
the Class members entitled to pre- and post-judgment interest pursuant to the Crown
Liability and Proceeding Act RSC c C-50?
[51]
In my view, the common issues will move the
litigation forward. There will be individual issues but that will not detract
from the advantage of resolving these common issues. As recognized by the
Ontario Court of Appeal in Cloud v Canada (Attorney General), [2004] 73
OR (3d) 401, [2005]1 CNLR 8, it is accepted that after the trial of common
issues, many remaining aspects of liability and the question of damages would
have to be decided individually. Even so, the commonality requirement is met.
[52]
The above addresses the Defendant’s concern that
there are an overwhelming amount of individual issues. As to its other concern
that there is no support for a punitive damages award, the pleading read as a
whole, including the discussion of “bad faith”,
is sufficient to address that matter.
I.
Preferable Procedure
[53]
The Defendant’s position is that common
questions do not predominate the litigation, that breach of privacy (in its
broadest context) is individual – how the communication was delivered, where
the individual lived (home, apartment, shared mailboxes), whether others had
access and what the impacts may have been.
[54]
While the Defendant has legitimate concerns, the
prospect of several thousand individual claims being processed in this Court
should cause the Defendant to rethink that administrative burden on itself. It
does cause the Court to think about the comparative merits of a class action
versus thousands of individual actions.
[55]
The preferability analysis must be viewed
keeping in mind the goal of class actions – access to justice, judicial economy
and behaviour modification.
[56]
Access to justice is enhanced by the resolution
of common questions before turning to individual circumstances. In many cases,
the amount of damages might be nominal or modest, sufficiently so that
individuals might not take on government on their own despite whatever rights that
they may have.
[57]
The benefits to judicial economy are obvious and
significant - a plethora of individual claims, many of which could be
self-represented, across the country. The Defendant’s concern as to the individual
aspects to a class action is multiplied enormously if there were not some class
resolution of common issues.
[58]
Behaviour modification must be considered from
the perspective of the federal government as a whole, not just one department,
and on the process of communication as a whole not just one alleged slip-up.
It
must also be considered from the perspective of the public - its awareness and enforcement
of privacy interests.
[59]
There are few practical alternatives. The
Defendant’s suggestion of an adequate remedy under the Privacy Act fails
to recognize that the Privacy Commissioner cannot award damages – the function
is principally recommendatory.
J.
Appropriateness of Representative Plaintiffs
[60]
The only issue is the anonymity of the
Plaintiffs. The Defendant questions how an anonymous representative can carry
out the obligations of a representative to other Class Plaintiffs.
[61]
The situation here raises the tension between
not wishing to have one’s privacy interests further injured and the principle
of an open court and the role of a class representative.
[62]
The Defendant has suggested that there are one
or more individuals who would be prepared to be publicly identified as a class
representative. The Plaintiffs’ counsel suggested that this arrangement might
be feasible.
[63]
If this is the only problem to arise in the
course of this litigation, one would be thankful but naïve. However, it is the
Court’s intention that, if feasible, at least one public class representative
should be identified.
K.
Litigation Plan
[64]
There is no dispute as to the Litigation Plan.
IV.
Conclusion
[65]
The Court concludes that this is a proper case
for certification generally as proposed by the Plaintiffs, subject to the
matters discussed, which require amendment.
[66]
The motion is granted with costs. The formal
order will issue upon completion of the matters pending.
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