Canada: 2015 Theme #1: Acceleration Of Privacy Class Actions

The past year has seen a number of decisions in privacy class actions. They confirm that privacy claims in tort can co-exist with comprehensive privacy statutes (at least in Ontario), that the tort of "publicity given to private life" may exist in Canadian law, that class representatives in privacy cases may conceal their identities with pseudonyms in appropriate cases, and that the focus of discovery in privacy class actions will be on defendants' obligations and conduct.

Privacy Statutes Do Not Exclude Civil Liability in Ontario

As we discussed in February, the Ontario Court of Appeal rejected an argument in Hopkins v. Kay that the Ontario Personal Health Information Protection Act (PHIPA) was a comprehensive code that precluded tort claims for invasion of privacy. In late October, the Supreme Court of Canada declined to grant leave for a further appeal, confirming the Court of Appeal's decision.

Although Hopkins v. Kay has not yet proceeded to the certification stage, the decision opens the door to privacy class actions against institutions in the health care sector by establishing that a civil cause of action may be brought against an organization subject to PHIPA.

A Low Evidentiary Threshold for Certification

In July, the Federal Court of Appeal confirmed in the Condon v. Canada class action that certification judges should not inquire into the facts of the case at certification, beyond what is necessary to determine if the claims raise common issues. As we noted at the time, this demonstrates the low evidentiary threshold at the certification stage of class actions in Canada.

Condon arises from the loss by a federal government ministry of a hard drive containing personal information of 583,000 student loan recipients. As we discussed in a 2014 post, the Federal Court had previously certified claims in breach of contract and intrusion upon seclusion but had declined to certify claims in negligence and breach of confidence based on a finding that the plaintiff had not suffered any compensable damages.

The Federal Court of Appeal found that it was an error for the certification judge to determine the merits of the negligence and breach of confidence claims based on the evidence available at the certification motion. The case was referred back to the Federal Court to consider certification of the negligence and breach of confidence claims.

"Publicity Given To Private Life" and Anonymity Of Class Representatives

In August, the Federal Court certified the "medical marihuana" class action: John Doe and Suzie Jones v. The Queen. As we discussed, in doing so, the Federal Court certified the novel tort of "publicity given to private life" and permitted limited anonymity to the class representatives.

In this case, Health Canada sent oversized envelopes marked "Marihuana Medical Access Program" through Canada Post to approximately 40,000 individuals registered in the program. The plaintiffs alleged that by identifying on the envelopes the participants' names together with the name of the program, Health Canada breached their privacy and exposed them to security concerns.

In certifying the case, the Federal Court cautiously endorsed the use of pseudonyms to protect the privacy of representative plaintiffs in privacy class actions. The court nonetheless required at least one representative plaintiff to be identified to ensure accountability to the class.

The Federal Court also certified a claim based on "publicity given to private life" (i.e., publication of private information). This tort has not yet been widely recognized by the Canadian courts but is recognized in the United States, where a person can be liable in tort for giving publicity to a matter concerning the private life of another, 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. The John Doe decision only establishes that it is not plain and obvious that such a claim cannot succeed; it remains to be seen whether Canadian courts will conclude that the tort does exist in Canadian law.

Defendants are the Focus of Discovery

Finally, a decision in the Nova Scotia case of Hemeon v. South West Nova District Health Authority re-affirms that the scope of discovery in privacy class actions will generally be limited to the obligations and conduct of the defendant.

The class members' claims in Hemeon concern alleged unauthorized access to the class members' medical records. During discovery, the defendant sought disclosure of the representative plaintiff's medical records, arguing that these records could be relevant to the plaintiff's "anguish and suffering" and/or individual damages.

The Nova Scotia court disagreed with these arguments, finding that the documents were not relevant to the certified common issues in the class action, which focused on the legal obligations of the defendant, the alleged conduct of the defendant and its employee, and the availability of aggregate damages.

Conclusion

All of the decisions discussed above eliminate or reduce potential obstacles to privacy class actions, and so they may signal that more privacy class actions will be brought and potentially certified in 2016.

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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