John Doe v. Canada

John Doe v. Canada
Court (s) Database
Federal Court Decisions
Date
2023-12-05
Neutral citation
2023 FC 1636
File numbers
T-1931-13
Decision Content
Date: 20231206
Docket: T-1931-13
Citation: 2023 FC 1636
Ottawa, Ontario, December 6, 2023
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
JOHN DOE, SUZIE JONES and PENNY KOZMENSKI
Plaintiffs
and
HIS MAJESTY THE KING
Defendant
JUDGMENT AND REASONS
[1] The Plaintiffs bring this motion for summary judgment pursuant to Rule 215(3) of the Federal Courts Rules, SOR/98-106 [the Rules]. The Plaintiffs seek a determination of ten certified common questions in their class action regarding their claims for negligence and breach of confidence.
[2] The Plaintiffs’ claims arise from Health Canada’s mass mail-out of over 41,000 letters to participants in the Marihuana Medical Access Program [MMAP] in November 2013. The letters were sent in an envelope with a see-through window, which displayed the sender’s return address as “Marihuana Medical Access Program” and the full name and address of the recipient (i.e., the Class Members). The Plaintiffs allege that the mass mail-out “outed” their participation in the program, disclosed their confidential information, and violated their right to privacy. They allege the mail-out was an act of negligence and breach of confidence by Health Canada.
[3] For the reasons that follow, the motion for summary judgment is granted, but only in part in favour of the Plaintiffs. The Court finds that the Plaintiffs have not established that the Defendant’s breach of the duty of care owed in the circumstances caused class-wide damage to the Class Members and, as a result, the Defendant’s liability for damages for negligence cannot be determined as a common issue. The Court also finds that the Plaintiffs have not established that the Defendant breached their confidence. The Common Issues are answered at paras 222-223.
I. Background A. The 2013 MMAP Mail-Out [4] Health Canada, the administrator of the MMAP, sent letters to 41,457 MMAP participants in November 2013 [the mail-out]. Health Canada used 9"x12" envelopes that had a see-through window, permitting the cover page of the letter (referred to as the banner page) to be seen without opening the envelope. The banner page displayed the full name and address of each participant along with the following return address:
Marihuana Medical Access Program
Health Canada
AL: 0300A
Ottawa ON K1A 0K9
[5] At the time of the mail-out, marihuana was a controlled substance and regulated under the Controlled Drugs and Substance Act, SC 1996, c 19. The vast majority of participants in the MMAP had to apply and obtain authorizations to possess and/or produce marihuana for their own personal medical use under the (now repealed) Marihuana Medical Access Regulations, SOR-2001-227 [Regulations]. Participants were required to provide declarations that they suffered from medical conditions and/or symptoms warranting medical marihuana treatment (Regulations, paragraph 6(1)(b)), and to provide a separate declaration from their medical practitioner (Regulations, paragraph 4(2)(b)).
[6] A smaller number of participants applied and obtained only a “Designated Person Production Licence” [DPPL], which authorized the licence holder to produce, store, and provide medical marihuana for medical purposes on behalf of a participant licensed to possess and use medical marihuana. Participants who obtained only a DPPL were not required to disclose their medical condition.
[7] Some participants held more than one authorization (i.e., a license to both produce and use medical marihuana).
[8] Prior to the mail-out, Health Canada’s practice was to use envelopes that indicated only a generic Health Canada address as the return address without any reference to the MMAP.
[9] The mail-out was intended to inform MMAP participants about upcoming changes to the Regulations, including a new prohibition on growing marijuana in a private dwelling. Health Canada sought to notify participants well in advance of the changes and to advise them about the next steps.
[10] Health Canada contracted Canada Post for the mail-out (printing, packaging, labeling, and delivery of the letters). On October 24, 2013, Health Canada provided pre-printed envelopes to Canada Post that did not identify the MMAP or have see-through windows.
[11] On October 30, 2013, Canada Post advised Health Canada that the pre-printed envelopes were damaged and there was an insufficient quantity. Canada Post also advised that the envelopes were not compatible with their equipment for mass mail-outs. Canada Post proposed that Health Canada use more generic, oversized, windowed envelopes.
[12] As noted in the Plaintiff’s record, there was an email exchange between Health Canada and Canada Post over a period of several days. Health Canada completed a form from Canada Post approving the details of the mail-out, including the use of the envelopes and the return address. On or around November 13, 2013, Canada Post delivered the letters to MMAP participants with their full name and address and with the name “Medical Marihuana Access Program” visible as the sender in the return address.
[13] Health Canada became aware of concerns from program participants shortly after the envelopes had been delivered.
[14] On November 21, 2013, the Deputy Minister of Health Canada issued a statement acknowledging that the manner of the mail-out as a mistake and an “administrative error”. The Deputy Minister stated:
Health Canada recently sent approximately 40, 000 informational letters to individuals with an interest in upcoming changes to the Marihuana Medical Access Program.
I have been advised that as a result of an administrative error the envelopes were labelled to indicate that they were sent by the Program. This is not standard Health Canada practice.
On behalf of Health Canada, I deeply regret this administrative error. Health Canada is taking steps to ensure this does not happen again.
Protection of personal information is of fundamental importance to Health Canada. We are in discussion with the Office of the Privacy Commissioner of Canada.
B. The Report of the Privacy Commissioner [15] The Office of the Privacy Commissioner of Canada [OPC] initiated its own investigation pursuant to subsection 29(3) of the Privacy Act, RSC 1985, c P-21 [Privacy Act]. The OPC received 339 individual complaints from recipients of the mail-out. The OPC conducted a joint investigation rather than investigating each complaint separately. The results of the investigation were shared with all the complainants. The OPC issued a report [the OPC Report] in 2015 titled “Accidental disclosure by Health Canada”.
[16] The OPC summarized the complainants’ concerns (at para 15-16):
15. The complainants alleged that HC [Health Canada] failed to protect their privacy by including the name of the MMAP in a clearly visible manner on the mail-out packages, thereby revealing their personal information (i.e. their identity and involvement with the MMAP) to CPC [Canada Post Corporation]employees and members of the public.
16. The complainants cited several concerns relating to the impact of HC's actions on their personal lives. In particular:
a. Career and financial position: Some individuals raised concerns that they could lose their jobs if their employers learned of their usage of medical marihuana.
b. Reputation: The use of marihuana, even for medical purposes, carries a social stigma due to its status as a prohibited substance. Some complainants alleged that they received comments from people about their association with the program as a result of the HC mail-out.
c. Safety: As mentioned in HC's letter to its clients regarding the program, "The current practice of allowing individuals to grow marijuana for medical purposes poses risks to the safety and security of Canadians. The high value of marijuana on the illegal market increases the risks of violent home invasion and diversion to the black market." Disclosure of the fact that a person is associated with the program thus increases the above-mentioned risks to these individuals and this statement demonstrates that HC recognizes these risks.
d. Health or well-being: The purpose of the program is to offer medication to individuals who have serious medical conditions. Many of the complainants in this case alleged that their health was adversely affected due to stress following the disclosure.
[17] The OPC summarized its findings:
56. We conclude that the reference to the MMAP in HC's return address in combination with the name of the addressee constitutes sensitive personal information under the Privacy Act. HC has not satisfied the OPC that it had appropriate consent for the disclosure of this information, nor did it establish that any of the permissible disclosures under section 8(2) of the Act would apply in the circumstances. We accordingly conclude that HC was in contravention of the Act. Therefore, the complaints are well-founded.
[18] The OPC included other observations, at paras 57-60, noting that the mail-out did not reflect Health Canada’s usual practices and was an administrative error, and that Health Canada had since established strict mail out protocols and created a Privacy Working Group. The OPC Report also noted that Health Canada should consider the sensitivity of the information it holds and the high level of protection required.
C. The Statement of Claim [19] The Plaintiff’s Statement of Claim, originally made in November 2013 and subsequently amended six times, seeks, in addition to an order for certification and appointment of the representative Plaintiffs:
…
A declaration that Health Canada owed a duty of care to the Plaintiffs and other Class Members, and the Defendant breached that duty causing the Plaintiffs and class members to suffer damages;
A declaration that Health Canada breached the confidence of the Plaintiffs and other Class Members;
Damages for negligence and breach of confidence, including damages for, among other harms,
costs incurred to prevent home invasion, theft, robbery and/or damage to personal property including marijuana plants and related paraphernalia;
costs incurred for personal security;
damage to reputation;
loss of employment;
reduced capacity for employment;
mental distress;
damages for distress, humiliation and anguish associated with realizing that their participation in the medical marijuana program had been made public to anyone who had seen the envelope, including;
a)A sense of loss of control over informational privacy:
b)Anxiety and worry about who and in what circumstances anyone had access to this information; and
c)Fear and uncertainty about whether others were aware that they were participants
out of pocket expenses; and
inconvenience, frustration and anxiety associated with taking precautionary steps to reduce the likelihood of home invasion, theft, robbery and/or damage to personal property and to obtain personal security;
General damages;
Aggravated damages;
Punitive damages; [no longer sought]
An Order pursuant to Rule 334.28(1) and (2) for the aggregate assessment of monetary relief and its distribution to the Plaintiffs and the Class Members;
Pre-judgment and post-judgment interest pursuant to sections 36 and 37 of the Federal Courts Act, R.S.C. 1985, c. F-7;
Costs, if appropriate; and,
Such further and other relief as this Honourable Court deems just.
[20] The action was ultimately certified as a class proceeding with ten Common Questions (John Doe v Canada, 2022 FC 587 [John Doe 2022]).
D. Class Members and Representative Plaintiffs [21] The Class Members are 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’Accès à la Marihuana à des Fins Médicales visible on the front of the envelope.
[22] There are three representative plaintiffs. The two anonymous representative Plaintiffs, John Doe and Suzie Jones, provided affidavits in 2014 at the time certification was sought. Penny Kozmenski is the named Plaintiff, as required by the Federal Court of Appeal in Canada v John Doe, 2016 FCA 191 [John Doe FCA 2016]). Ms. Kozmenski swore her affidavit in November 2016 when she was added as a named representative Plaintiff. No additional or more recent affidavits from the representative Plaintiffs have been provided.
[23] John Doe attested that he lives in a rural area and is employed in the health care field. He attested to suffering from spinal cord disease and arthritis. Health Canada granted him authorization to possess and produce marihuana for his personal use. He attested that he had only informed three people of his participation in the MMAP, that he only consumed marihuana in his home in private and that he kept his medical conditions private. He expressed concern that if his use of medical marihuana was discovered, his employer would reprimand him and his professional regulatory body would question his competence, even though his use of marihuana did not affect his abilities. Mr. Doe also asserted that he would be targeted for home invasion. He stated that the receipt of the November 2013 mail out caused him “considerable stress and anxiety” and that he was “dumbfounded” when he saw the envelope.
[24] Suzie Jones attested that she lived in a larger city at the time of the mail-out and was working as a paralegal. She attested to suffering from endometriosis and chronic pain. Health Canada granted her authorization to possess marihuana for her personal use. She attested that her medical condition was well known by her friends and family, and several knew of her participation in the MMAP. She expressed the same concerns as Mr. Doe about possible reprimands from her employer and her professional regulatory body and about home invasion. Ms. Jones also attested that she experienced “considerable stress and anxiety” and was “dumbfounded” upon receipt of the envelope.
[25] Ms. Kozmenski attested that she lived in Windsor, Ontario and, at the time of the mail-out was employed as a personal support worker. She attested to suffering from pain from herniated and bulging discs in her back, arthritis in her shoulders and hips, and fibromyalgia. Health Canada granted her authorization to possess and produce marihuana for her personal use. Ms. Kozmenski attested that she only disclosed her MMAP participation to 12 people. She noted that her then 16 year-old daughter retrieved the mail-out and, as a result, she had to explain her condition and marihuana use to her daughter and her then 7-year-old son. Ms. Kozmenski attested that she suffered “considerable stress and anxiety”, was “dumbfounded” upon receipt of the envelope, and feared for her safety. Ms. Kozmenski ultimately decided to move two years after receiving the envelope. Ms. Kozmenski also attested that she joined the Cannabis Rights Coalition and the Cannabis in Canada group in 2014.
E. Certification Proceedings [26] The procedural history of this class action since 2013 is summarized briefly below.
[27] In the context of the Plaintiffs’ motion for certification, the Defendant sought to strike three paragraphs from the affidavit of the Plaintiffs’ affiant, Mr. David Robins [the Robins’ affidavit], which had been tendered to support certification. In John Doe v Her Majesty The Queen, 2015 FC 236 [John Doe 2015], Justice Rennie dismissed the Defendant’s motion. The paragraphs at issue summarized information provided by a “self-selected and unidentified group of potential class members” in response to a questionnaire. The information included responses about the impact of the mail-out (for example, concerns about reputation, employment, security, and stress).
[28] Justice Rennie found that the paragraphs at issue were not impermissible hearsay given that the affidavit was tendered only to support certification and not to address the merits of the claim, noting at para 8: “[t]he evidence is not being tendered to establish that putative class members have suffered damages, but that the individuals claiming to be class members allege that they suffered damages” [emphasis in original]. Justice Rennie concluded that the evidence was not hearsay given its purpose (at paras 11, 13).
[29] In John Doe v Canada, 2015 FC 916, Justice Phelan found that the Plaintiffs’ claims could proceed as a class proceeding, noting, at para 51, that “the common issues will move the litigation forward”. The Court certified the common questions proposed by the Plaintiffs alleging six different torts – breach of contract, breach of warranty, negligence, breach of confidence, intrusion upon seclusion, publicity to public life, and breach of the reasonable expectation of privacy under the Charter – noting, at para 65, that some refinement to the common questions might be needed.
[30] In John Doe FCA 2016, the Federal Court of Appeal granted the Defendant’s appeal in part and struck several causes of action, leaving only the causes of action in negligence and breach of confidence.
[31] In Canada v John Doe, 2019 FCA 8, the Federal Court of Appeal dismissed the Defendant’s appeal of the certification of the common question regarding aggregate damages. The Court of Appeal noted, at para 1, that it had previously determined the appeal of the certification order (John Doe FCA 2016) and found that “the portion of the certification order dealing with the aggregate assessment of damages as a common question” was a final decision. The Federal Court of Appeal added, at para 3, that it remained open to the Defendant to make the same arguments regarding the propriety of an aggregate assessment of damages in respect of the causes of actions remaining at the trial of the common issues.
F. The Common Questions
[32] In John Doe 2022, Justice Phelan certified the class action, defined the Class Members, set out the nature of the claims (negligence and breach of confidence), and identified ten Common Questions:
Did Health Canada owe the Class Members a duty of care in its collection, use, retention and disclosure of the Personal Information?
If yes, did Health Canada breach that duty of care when it sent the Envelope?
Did the Class Members communicate the Personal Information to Health Canada?
If yes, did Health Canada misuse the Personal Information in its collection, use, retention or disclosure of the Personal Information?
If yes, was such misuse of the Personal Information to the detriment of the Class Members?
If yes, did Health Canada breach the confidence of the Class Members in its collection, retention or disclosure of the Personal Information?
Is the Defendant liable to pay damages incurred by the Class Members for the causes of action?
Can the Class Members’ damages be assessed in the aggregate pursuant to Rule 334.28(1)?
Does Health Canada’s conduct justify an award of punitive damages?
Are the Class Members entitled to pre- and post-judgment interest pursuant to the Crown Liability and Proceedings Act, RSC c C-50?
II. The Motion for Summary Judgment [33] The issue on this motion is whether the Court should grant summary judgment and, if so, whether and how the common issues should be answered.
[34] Rule 215 of the Federal Court Rules states:
If no genuine issue for trial
Absence de véritable question litigieuse
215 (1) If on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly.
215 (1) Si, par suite d’une requête en jugement sommaire, la Cour est convaincue qu’il n’existe pas de véritable question litigieuse quant à une déclaration ou à une défense, elle rend un jugement sommaire en conséquence.
Genuine issue of amount or question of law
Somme d’argent ou point de droit
(2) If the Court is satisfied that the only genuine issue is
…
(b) a question of law, the Court may determine the question and grant summary judgment accordingly.
(2) Si la Cour est convaincue que la seule véritable question litigieuse est :
…
b) un point de droit, elle peut statuer sur celui-ci et rendre un jugement sommaire en conséquence.
Powers of Court
Pouvoirs de la Cour
(3) If the Court is satisfied that there is a genuine issue of fact or law for trial with respect to a claim or a defence, the Court may
(a) nevertheless determine that issue by way of summary trial and make any order necessary for the conduct of the summary trial; or
(b) dismiss the motion in whole or in part and order that the action, or the issues in the action not disposed of by summary judgment, proceed to trial or that the action be conducted as a specially managed proceeding.
(3) Si la Cour est convaincue qu’il existe une véritable question de fait ou de droit litigieuse à l’égard d’une déclaration ou d’une défense, elle peut :
a) néanmoins trancher cette question par voie de procès sommaire et rendre toute ordonnance nécessaire pour le déroulement de ce procès;
b) rejeter la requête en tout ou en partie et ordonner que l’action ou toute question litigieuse non tranchée par jugement sommaire soit instruite ou que l’action se poursuive à titre d’instance à gestion spéciale.
[35] Rule 215, like all of the Rules, must be interpreted in light of Rule 3, which guides the Court to “secure the just, most expeditious and least expensive outcome of every proceeding” and to consider the principle of proportionality, including the complexity and importance of the issues.
[36] As the Supreme Court explained in Hryniak v Mauldin, 2014 SCC 7 [Hryniak], motions for summary judgment are an important means to avoid the time and expense associated with a full trial in appropriate cases, thereby conserving judicial resources and promoting access to justice. In Hryniak, the Supreme Court of Canada stated, at paras 49-50:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[37] In Milano Pizza Ltd v 6034799 Canada Inc, 2018 FC 1112 [Milano Pizza], Justice Mactavish summarized the law regarding motions for summary judgment as they apply in this Court. Justice Mactavish explained the notion of a “genuine issue for trial”, the test on a motion for summary judgment, the onus on the respective parties, and other key principles at paras 31, 33–36, and 40. The principles, which have been reiterated in many subsequent cases, are not in dispute. The principles include that:
the onus is on the party seeking summary judgment to establish that there is no genuine issue for trial;
all parties, including the responding party, must “put their best foot forward”;
responses to motions for summary judgment cannot be based upon what might be adduced as evidence at a later stage in the proceeding;
the record before the motions judge must permit the judge to find the facts necessary to resolve the dispute;
summary judgment should not be granted where the necessary facts cannot be found, or where it would be unjust to do so; and,
judges should proceed cautiously because granting summary judgment will preclude a party from presenting evidence at trial.
[38] More recently, the Federal Court of Appeal reiterated these principles in Saskatchewan (Attorney General) v Witchekan Lake First Nation, 2023 FCA 105 at para 22 [Witchekan].
[39] On their motion for summary judgment, the Plaintiffs bear the high burden of demonstrating that there is no genuine issue for trial (Rule 215(1); Witchekan at para 23; Milano Pizza at para 34; CanMar Foods Ltd v TA Foods Ltd, 2021 FCA 7 at para 27 [CanMar Foods]). Although the Defendant agrees that there is no genuine issue for trial, both parties must still put their “best foot forward” to permit the Court to address the issues on this motion.
III. Overview of the Position of the Parties A. The Plaintiffs’ Position [40] The Plaintiffs submit that the evidence is not in dispute and that all Certified Questions should be answered in their favour. The Plaintiffs argue that Health Canada was negligent; it breached the duty of care it owed to Class Members to protect their personal information from disclosure without their consent. The Plaintiffs submit that liability and damages for negligence are not common questions and they do not need to establish damages at this stage, rather, damages for negligence can be assessed on an individual basis at individual issues trials or assessments. The Plaintiffs note that not all Class Members are likely to establish damages for negligence. The Plaintiffs also argue that Health Canada breached their confidence.
[41] The Plaintiffs argue that privacy rights require protection and that the common law tort of breach of confidence should evolve to protect privacy in an analogous manner as the statutory tort of breach of privacy that exists in some provincial legislation, and in line with recent developments in the UK and jurisprudence related to the Charter of Rights and Freedoms, subsection 6(1), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. The Plaintiffs submit that the misuse of confidential information need not be intentional, and that there is no need for them to show class-wide detriment because the breach, on its own, is detrimental. They argue that remedies for breach of confidence are flexible given their equitable foundation and justify an award of aggregate damages and therefore, that they do not need to show proof of actual harm.
[42] The Plaintiffs alternatively submit that if the actual harm to Class Members must be established, there is sufficient evidence on the record to show class wide harm.
B. The Defendant’s Position [43] The Defendant agrees that there is no genuine issue for trial and that the common issues can be answered on this motion for summary judgment in favour of the Defendant.
[44] The Defendant submits that Health Canada did not breach any duty of care owed to Class Members. The Defendant adds that the Plaintiffs have not provided evidence of compensable harm or damages caused by the Defendant, which are elements of the cause of action in negligence.
[45] The Defendant also submits that the Plaintiffs have not met the test for breach of confidence, which requires intentional misuse of confidential information to the detriment of the Plaintiffs.
[46] The Defendant submits that the common law tort of breach of confidence cannot be expanded to mimic the statutory torts for breach of privacy that exist in some provinces, as suggested by the Plaintiffs.
[47] The Defendant submits that the certified common questions frame the claim and this motion for summary judgment. The Defendant submits that Questions 7 and 8 require a finding of liability for both negligence and breach of confidence and that the determination of liability cannot be left to individual issues trials or assessments as the Plaintiffs now argue. The Court cannot answer whether the Defendant should pay damages in negligence or breach of confidence unless the Court finds—as a common issue—that the Defendant is liable.
IV. Preliminary Issues [48] The Plaintiffs sought to file written reply evidence to address issues raised by the Defendant that the Plaintiff characterises as “new”. First, to reply to the Defendant’s submission that the Plaintiffs must meet the test in Anns v Merton London Borough Council (1977), [1978] AC 728 (HL) (adopted in Cooper v Hobart, 2001 SCC 79), known as the Anns/Cooper test, to establish a new duty of care. Second, to reply to the Defendant’s submission that the Plaintiffs must establish both causation and liability for negligence and actual detriment for breach of confidence.
[49] The Defendant opposed the filing of the Plaintiffs’ written reply, noting that the Rules do not provide for a reply except in special circumstances, and no special circumstances have been established. The Defendant noted that the common law tests for negligence and breach of confidence are not new issues, and the Common Questions frame the motion for summary judgment. The Defendant, however, did not oppose the Plaintiffs’ submission of additional authorities.
[50] The Court declined to accept the written reply submissions of the Plaintiffs. The Court noted that the Plaintiffs’ brought this motion and must put their best foot forward to address the Common Questions and establish their claims of negligence and breach of confidence. The Court agreed that the Defendant’s submissions did not raise new issues. The Court permitted the Plaintiffs ample time for oral reply and to provide the Court with the additional authorities the Plaintiffs relied upon.
[51] With respect to the Plaintiffs’ position that the Defendant’s submission that the Motion for Summary Judgment be granted in the Defendant’s favour amounts to a cross-motion, to which the Plaintiffs had no opportunity to respond, the Court finds that the jurisprudence has established that a cross-motion is not required (Milano Pizza at paras 111-112).
V. Negligence [52] The common questions are:
Did Health Canada owe the Class Members a duty of care in its collection, use, retention and disclosure of the Personal Information? If yes, did Health Canada breach that duty of care when it sent the Envelope?
A. The Plaintiffs’ Submissions [53] The Plaintiffs note that the test for negligence established in Mustapha v Culligan Canada Ltd, 2008 SCC 27, at para 3, [Mustapha], requires that they demonstrate that: the Defendant owed them a duty of care; the Defendant’s behaviour breached the duty of care; the Plaintiffs sustained damage; and the damage was caused, in fact and in law, by the breach.
[54] The Plaintiffs submit that Health Canada had a duty to protect their personal information. The Plaintiffs rely on the Privacy Act, the OPC Report, and Health Canada’s 2012 Privacy Risk Mitigation Strategy [2012 PRMSR].
[55] The Plaintiffs submit that Health Canada is subject to the Privacy Act, which establishes a statutory duty of care under subsection 8(1). They note that the definition of personal privacy in the Privacy Act refers to information about an identifiable individual that is recorded in any form and includes “information relating to medical history”. They submit that the name and address on the envelope is a record of their personal information.
[56] The Plaintiffs note that the Privacy Commissioner found that the reference to the MMAP, along with the Class Members’ name and address, constitutes personal information under the Privacy Act.
[57] The Plaintiffs also point to Health Canada’s April 2012 PRMSR, which acknowledges that the MMAP is subject to “the tenets of the Privacy Act” and based on universally recognized privacy principles. The Plaintiffs submit that the 2012 PRMSR shows that Health Canada was aware of the risks arising from breaches of privacy, including the risks associated with sending MMAP information to the wrong person or associating MMAP with the wrong person.
[58] In response to the Defendant’s submissions, the Plaintiffs now argue that a novel duty of care should be recognized if the duty does not already exist. The Plaintiffs submit that the application of the Anns/Cooper test supports finding a novel duty of care.
[59] The Plaintiffs submit that they were in a relationship of proximity with Health Canada, the risks arising from disclosure of their information were foreseeable, and that there are no policy reasons to negate the duty of care.
[60] The Plaintiffs note that there was continuous communication between Health Canada and MMAP participants, the participants provided the required information, and they were vulnerable due to “debilitating medical conditions”. Health Canada held a great deal of personal medical information about the Plaintiffs, and the risks of disclosure of that information were foreseeable.
[61] The Plaintiffs dispute that there are policy reasons to negate the duty of care. They note that the Class Members are a finite group, marihuana is now legal and Health Canada will not be exposed to indeterminate liability.
[62] The Plaintiffs submit that Health Canada breached the duty of care by: failing to meet its statutory duties and its own established policies for the collection, retention, security, and disclosure of personal information of Class Members; failing to establish effective policies to manage personal information; failing to take reasonable steps to prevent disclosure of personal information; failing to keep personal information secure and confidential; and, for posting non‑mailable matters.
[63] The Plaintiffs submit that the 2012 PRMSR shows that Health Canada knew that a breach of its duty of care would cause damage to the Class Members. The Plaintiffs also note that Health Canada’s letter advised participants that the changes to the program were necessitated by the “risk of violent home invasion and diversion [of marihuana] to the black market”. The Plaintiffs submit that Health Canada’s negligence in the mass mail-out perpetuated these same risks.
[64] The Plaintiffs dispute that the use of windowed envelopes was an inadvertent error, noting that Health Canada approved the use of the windowed envelopes with the return address and the Deputy Minister stated that this was not standard practice.
[65] The Plaintiffs submit that the Health Canada’s mass mail-out disclosed the Class Members’ personal information without their consent, caused them distress, humiliation, anguish, anxiety, fear, and uncertainty as a result of their loss of control over their personal information.
[66] The Plaintiffs note that Common Question 7 asks whether the Defendant is liable to pay damages for the causes of action. The Plaintiffs submit that Health Canada’s liability for damages flows from the breach of the duty of care. The Plaintiffs assert that the Court should order individual trials or assessments to determine the damage awards for negligence for Class Members, as contemplated in the Litigation Plan.
[67] In response to the Defendant’s submission that the Plaintiffs must show damages for negligence now, the Plaintiffs note that Common Questions 1 and 2 ask only whether there was a duty and whether it was breached. The Plaintiffs submit that there is no need to establish liability and damages as a common issue and that this would be assessed at individual issues trials. As an example, the Plaintiffs point to Rumley v British Columbia, 2001 SCC 69 at para 36 [Rumley], where the Supreme Court of Canada noted that injury and causation arising from alleged systemic negligence should be litigated at individual trials. They also point to Pioneer Corp v Godfrey, 2019 SCC 42 at para 120 [Pioneer], where the Supreme Court of Canada noted several possibilities to determine which class member suffered losses after liability had been determined.
[68] The Plaintiffs acknowledge that at the individual issues trials or assessments, some Class Members may succeed in demonstrating compensable damages and others not.
[69] Alternatively, the Plaintiffs argue that if evidence of class-wide harm is required to show damages for negligence, there is such evidence on the record. The Plaintiffs rely on: the OPC Report, which sets out a summary of complaints; the Robins’ affidavit, provided by the Plaintiffs’ at the motion for certification in 2014, which sets out a summary of responses to the survey by class counsel; and Health Canada’s receipt of complaints following the mail-out. The Plaintiffs also rely on their expert reports, which opined that there was widespread stigma associated with the use of medical marihuana prior to legalization and, to some extent, following legalization.
[70] The Plaintiffs also rely on the affidavits of the three representative plaintiffs, who described their damages as stress, anxiety, and feeling dumfounded.
[71] In response to the Court’s question about why no additional or more recent affidavits from the MMAP participants had been filed, the Plaintiffs responded that these were not necessary to address Common Questions 1 and 2, and that if the Court requires evidence of damages, the Court can make an order for special proof or modes of proof.
[72] With respect to damages sought, the Plaintiffs acknowledge that their Notice of Application did not seek damages for the three representative Plaintiffs, but that they sought this relief in their Memorandum of Fact and Law for this Motion. However, the Plaintiffs now submit that the three representatives’ claims should be determined at a summary trial or individual assessment. The Plaintiffs also acknowledge that the affidavits of John Doe and Suzie Jones do not support damages for negligence; however, the affidavit of Ms. Kozmenski may do so.
B. The Defendant’s Submissions [73] The Defendant submits that the Plaintiffs have failed to establish that Health Canada owed them a duty of care, breached the duty of care, or that they suffered damages caused by the breach of any duty of care. As a result, the Defendant is not liable for negligence.
[74] The Defendant submits that a breach of the Privacy Act (which is denied) does not give rise to a cause of action. The Defendant notes that there is no statutory duty of care and no remedy set out in the Privacy Act for a breach; which reflects an intentional choice by Parliament. The remedy under the Privacy Act is an investigation and report conducted by the Privacy Commissioner.
[75] The Defendant further submits that there is no recognized common law duty of care owed by the Crown with respect to protection of personal information under the Privacy Act.
[76] The Defendant submits that any proposed novel duty of care now advanced by the Plaintiffs would fail the Anns/Cooper test because the alleged harm is not reasonably foreseeable and residual policy concerns negate finding of a duty of care.
[77] The Defendant submits that there was no known or reasonably foreseeable harm because: the mail-out was delivered in accordance with the Canada Post Corporation Act, RSC 1985, c C-10 and accompanying regulations; the mail-out did not disclose anything about a Class Member’s medical condition; it was not reasonably foreseeable that other persons in a Class Members’ household would not know about their participation in the MMAP; and, envelopes with similar information had previously been sent to the Class Members.
[78] The Defendant argues that even if the Plaintiffs could prove that harm was reasonably foreseeable, residual policy concerns negate finding a duty of care because such a duty would expose the government to “virtually unlimited” private claims given that it retains a great deal of personal information.
[79] The Defendant further argues that the Plaintiffs have not established any breach of the alleged standard of care. The Defendant submits that Health Canada exercised “the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances” (citing Ryan v Victoria, [1999] 1 SCR 201 at para 28). The Defendant argues that the Plaintiffs mischaracterize the 2012 PRMSR; it does not acknowledge any breach of a standard of care, but rather, demonstrates Health Canada’s due diligence to ensure compliance with the Privacy Act.
[80] The Defendant disputes the Plaintiffs’ submission that the disclosure (i.e., the mail-out) caused harm because a third party who saw the envelope would have discovered the Class Member’s participation in MMAP. The Defendant notes that the mail out was necessary to inform participants of important changes to the MMAP; it was not foreseeable that the participants would be harmed