Canadian courts have generally adopted a
liberal and purposive approach to class action certification,
and this approach has applied equally to the relatively new breed
of class actions founded in privacy torts, see for example, Condon v Canada. However, in the
recent decision of Canada v John Doe, the Federal Court
of Appeal de-certified two causes of action based in privacy torts,
narrowing its approach to the material facts required to meet the
standard of proof in determining whether the pleadings disclose a
reasonable cause of action.
In John Doe, 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
Federal Court certified all six causes of action: breach of
contract and warranty; negligence; breach of confidence; intrusion
upon seclusion; publicity given to private life; and breach of the
Charter right to privacy. Justice Phelan held that
certification was appropriate, subject to the plaintiffs amending
their Statement of Claim by identifying a class representative. It
was not plain and obvious that the plaintiffs' causes of action
would fail. Further, the Federal Court was satisfied that the
Privacy Commissioner's Report, which concluded that Health
Canada had violated the Privacy Act, was sufficient to
establish a reasonable cause of action.
The Test for a Reasonable Cause of Action
On certification, as a threshold matter, the plaintiff must
establish that the pleadings disclose a reasonable cause of action,
the test being:
"whether it is 'plain and obvious' that the
pleadings, assuming the facts pleaded to be true, disclose no
reasonable cause of action"
The Federal Court of Appeal held in John Doe that the
certification judge erred in applying a somewhat lower standard,
namely the "some basis in fact" test as opposed to the
required "reasonable prospect of success" threshold in
determining whether the plaintiffs had established a reasonable
cause of action. In addition, the Court found that there were no
material facts to support the causes of action other than a breach
of confidence and negligence.
With regards to the privacy causes of action, that is, intrusion
upon seclusion and publicity given to private life, the Federal
Court of Appeal did not accept that the plaintiffs met the required
standard of proof. For the plaintiffs' claim of the tort of
intrusion upon seclusion, the Court held that the plaintiffs did
not plead "any material facts" to fulfill the necessary
elements of such a claim. Further, the Court held that "at
best, the material facts pleaded support the notion that an
isolated administrative error was made".
Free-Standing Tort in Publicity Given to Private Life?
As we discussed in our post on the certification
decision, the Federal Court in this case had certified a claim
based on "publicity given to private life", that is,
publication of private information. The only material facts relied
on by the plaintiffs supported disclosure of the plaintiffs'
personal information to Canada Post (whose employees have
confidentiality obligations), to other people who did not have
confidentiality obligations such as family, and to people to whom
the mail was misdirected.
Drawing on the criteria to establish the tort of public
disclosure of embarrassing private facts in American jurisprudence,
the Federal Court of Appeal denied the certification of that claim
in that the material facts pleaded by the plaintiffs were "far
from sufficient" to demonstrate that the private information
was communicated to the "public at large". Rather, the
facts pleaded had established that the plaintiffs' personal
information was only disclosed to a small group of persons.
This case lends reassurance to the privacy defence bar that not
all claims framed around intrusion upon seclusion will be
certified, and further clarifies the narrower set of facts that may
be required to establish the tort of "publicity given to
private life" in Canada.
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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