Federal Court of Appeal reverses certification of privacy class action

1 Jul

On June 24th, the Federal Court of Appeal overturned the certification of a number of causes of action in a class action that claims damages for the sending of a letter that identified the sender as the “Marihuana Medical Access Program.”

The intended recipients were, in fact, individuals authorized to possess medical marihuana. They claim the letter disclosed this fact and exposed them to various harms. The Federal Court certified the action last July based on a finding that the claim set out a number of valid causes of action.

The Federal Court of Appeal allowed the action to proceed based on claim alleging that the government’s negligence (and breach of confidence) caused the following damage: costs incurred to prevent home invasion, costs incurred for other personal security, damage to reputation, loss of employment, reduced capacity for employment, and out of pocket expenses. The Court of Appeal affirmed that a claim for such damages is actionable and “not entirely speculative.”

The Federal Court of Appeal overturned certification of three other causes of action:

  • It held that the pleading did not establish a valid claim of contractual breach because it set out no exchange of promises backed by valuable consideration. The existence of an enforceable contractual contract was also not apparent in the circumstances given the arrangement between government and the representative plaintiff was invited and structured by statute.
  • It held that the pleading did not establish a valid claim for public disclosure of private facts because the pleadings did not support a finding that the government “published” private facts: “…the concept of ‘publicity’ means that ‘the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.'”
  • It held that the pleading did not establish a valid claim for intrusion upon seclusion because it did not support a finding of the required state of mind (i.e., intent or recklessness): “At best, the material facts pleaded support the notion that an isolated administrative error was made.”

The Court’s limitation of the claim to one based on negligence is significant because it precludes access to “moral damages.” While the Court said the pleaded special damages were not so speculative to disallow the claim, it’s questionable whether the actual damages suffered by members of the class amount to much at all.

Canada v John Doe, 2016 FCA 191.

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