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 Doe 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 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
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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