Canada: Novel Privacy Tort Recognized In Certification Of Marihuana Medical Access Plan Class Action

Last Updated: September 21 2015
Article by Alex Sharpe and Rebecca Case

Class actions continue to be at the forefront of the development of privacy rights. Recently, the novel tort of "publicity given to private life" was permitted to proceed as a cause of action in the class proceeding John Doe and Suzie Jones v. Her Majesty the Queen.1 This latest privacy class action certification decision not only recognizes a novel form of privacy tort but also demonstrates how the courts find class actions a good vehicle for the prosecution of privacy breaches.

John Doe and Suzie Jones is based on the alleged privacy breaches that occurred when, in November 2013, Health Canada mailed oversized letters to 40,000 individuals with the return address listed as the Marihuana Medical Access Program ("MMAP"). The name of each individual and the name of the program were visible on the outside of the envelope. The plaintiffs allege that this breached their privacy rights by publicly identifying them as participants in the MMAP. On March 3, 2015, the Privacy Commissioner concluded that Health Canada had violated the Privacy Act2 by referencing the MMAP in conjunction with the addressee.

In this class action, the plaintiffs' pleaded causes of action include the new privacy torts of intrusion upon seclusion and publicity given to private life. In his reasons on the certification motion, Phelan J emphasized that novelty is not a basis for striking a cause of action. His Honour acknowledged that: "[t]he area of privacy rights, either by statute, contract or tort, is rapidly developing. It is a new area and its development or limitation should not be decided at this stage of the litigation."3

In keeping with other recent privacy law class actions, Phelan J held that the pleadings sufficiently disclosed a cause of action in tort for intrusion upon seclusion. With regards to the tort of publicity given to private life, Phelan J stated that this tort is, "truly novel in Canada, but it appears to be an extension of the tort of intrusion upon seclusion."4  He also noted that, "the situation with this tort is reminiscent of the motion in Foss v Harbottle, where negligence was attempted to be struck out."5 Phelan J cited the Restatement (Second) of Torts for the elements of this cause of action 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

  1. would be highly offensive to a reasonable person, and
  2. is not of legitimate concern to the public.6

Justice Phelan then certified as common issues questions based on the elements of both of the privacy torts.7

In considering whether a class action was preferable, his Honour considered the defendants' argument that this breach of privacy was, ultimately, an individual experience. He noted that there were few practical alternatives and that there was no monetary remedy available under the Privacy Act. Proceeding as a class action fulfilled the goals of access to justice and judicial economy. With respect to behavior modification, Phelan J stated that:

[b]ehavour 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 interests8

In other words, Phelan J acknowledged the widespread effect class actions can have on educating the public about their privacy rights. As with intrusion upon seclusion, publicity given to private life has not yet been determined on the merits in a class action and so the full parameters of these torts are not yet known. Of key interest will be what evidence is necessary to prove these torts, whether there are arguments at trial that will deter courts from certifying these types of class actions in the future, and how damages may be assessed.


1 2015 FC 916 ("John Doe and Suzie Jones").

2 Privacy Act, R.S.C. 1985, c P-21 ("Privacy Act").

3 John Doe and Suzie Jones, supra para. 1 at para. 40.

4 Ibid at para. 41.

5 Ibid at para. 43.

6 Ibid at para. 41.

7 Ibid at para. 50.

8 Ibid at para. 58.

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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