Doe v. Canada, 2022 FC 587

ORDER

UPON reviewing the judgment of the Honourable Mr. Justice Phelan of the Federal Court in this matter, issued July 27, 2015, and the judgment of the Honourable Mr. Justice Ryer of the Federal Court of Appeal in this matter, issued June 24, 2016;

THIS COURT ORDERS that:

1. This action is certified as a class proceeding;

2. John Doe, Suzie Jones and Penny Kozmenski are appointed as representative plaintiffs for the Class;

3. The Class (or Class Members) is defined 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’Accés à la Marihuana à des Fins Médicales visible on the front of the envelope.

4. The nature of the claim is:

1. Negligence, and

2. Breach of confidence.

5. The relief sought by the Class is:

1. An aggregate or individual assessment of damages for negligence and breach of confidence,

2. Aggravated damages,

3. Punitive damages,

4. Pre- and post-judgment interest, and

5. Such further or other relief as this Honourable Court deems just.

6. The Common Questions are the following:

With respect to the alleged 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?

With respect to the alleged 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?

With respect to Damages

1. Is the Defendant liable to pay damages incurred by the Class Members for the causes of action?

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 damages?

4. Are the Class Members entitled to pre- and post-judgment interest pursuant to the Crown Liability and Proceedings Act, RSC c C-50?

7. The Litigation Plan attached as Schedule “A” is approved as a workable method of advancing the Action.

8. Trilogy Class Action Services [Trilogy], an established class action administration services provider in Niagara, Ontario, is appointed as the opt-out administrator to receive written elections to opt-out of the class action.

9. Class Members who wish to opt-out of this action must do so by sending a written election to opt-out to Trilogy Class Action Services on or before 90 days after the issuance of this Order.

10. Any Class Member who has not validly opted-out of this action in accordance with paragraph 9 of this Order will be bound by any determinations made by the Court in this action.

11. The Notice Plan included in the Litigation Plan is approved as a workable method of contacting the Class Members.

12. The notice of certification of this action as a class proceeding [the Notice] shall be provided to Class Members in substantially the same form as attached as Schedule “B” to this Order.

13. The Notice shall be disseminated to Class Members within 30 days after the issuance of this Order in accordance with the Plan of Dissemination that is attached as Schedule “C” to this Order. The Court acknowledges that, in accordance with the Cannabis Act, the Defendant, the Federal Government and Health Canada, do not endorse or approve any individual/business/entity where online/social media notices or advertisements might be placed.

14. The Plaintiffs shall pay their costs to deliver the Notice in accordance with paragraph 1 of the Plan of Dissemination that is attached as Schedule “C” to this Order. The Defendant shall pay its cost of posting the Notice on the Health Canada website in accordance with paragraph 2 of the Plan of Dissemination that is attached as Schedule “C” to this Order. The Plaintiffs and the Defendant shall share the cost of the Plan of Dissemination in accordance with the January 18, 2021 proposal of Trilogy Class Action Services in accordance with paragraph 3 of the Plan of Dissemination that is attached as Schedule “C” to this Order.