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Medical Marihuana Privacy Breach

UPDATE JANUARY 9, 2024

On December 6, 2023, the Federal Court released its reasons for decision granting the Plaintiff’s summary judgment application heard in October 2023. The decision can be found here. In summary, the Court dismissed the Plaintiffs’ claim for breach of confidence but found that Health Canada owed the Class Members a duty of care and that the duty owed in the circumstances was breached. The Court determined that the Class Members’ damages claims for negligence may be pursued by individual trials or assessments, the process for which will be determined at an upcoming case management conference. Further details on that process will be posted when they are determined by the Court.

UPDATE OCTOBER 30, 2023

The  summary judgment application of this class action was  completed on October 26, 2023. The judge reserved her decision which we expect to receive in the next 3-5 months.

Please note, even if we are entirely successful and the judge  finds the government was negligent or misused confidential information about participation in the MMAP, which is not guaranteed, this will not fully resolve the matter as we asked the court to order individual issues trials so that class members have an opportunity to prove their individual losses flowing from the breach.  To the extent you have sustained damages, please keep track of any records or information you may have. You may need to establish those at a future individual process. Also, we encourage anyone who believes they have suffered any such harm to  contact us with specifics of your information. Alternatively, the court  may also award a lump sum amount to be shared amongst the class members. The court may also decide to dismiss the class action.

UPDATE MAY 24, 2022

On April 22, 2022, the Federal Court issued the Order certifying this class proceeding and establishing the notice plan for class members to opt out of the class action should they not wish to participate.

The Class is defined as:

All persons who were sent a letter from Health Canada in November 2013 that had the phrase Marihuana Medical Access Program or Programme d’Accés à des Fins Médicales visible on the front of the envelope.

The Notice of Certification may be viewed here: English and French.

If you fall within the class definition, you are automatically included in this class action and you do not need to do anything at this time.

The deadline for opting out of this class action was Thursday, July 21, 2022. Class members can no longer opt out of this proceeding.

1. On November 19, 2013, Health Canada mailed letters to 41,514 clients of the Marihuana Medical Access Program across Canada to advise of changes to the Program commencing on April 1, 2014. The windowed envelope containing the letter explicitly identified the “Marihuana Medical Access Program” in the return address on the outside along with the name and address of the client recipient.

2. On Thursday, November 21, 2013, George Da Pont, deputy minister at Health Canada issued an apology on Health Canada’s website describing the mailing as an administrative error. The apology stated: “I have been advised that as the result of an administrative error the envelopes were labelled to indicate that they were sent by the Program. This is not standard Health Canada practice.” The apology went on to state: “We are in discussion with the Office of the Privacy Commissioner of Canada.”

3. On March 3, 2015, the Office of the Privacy Commissioner of Canada (“OPC”) released a report of findings from its investigation into Health Canada’s November 2013 mailing. In the report, the OPC concluded that complaints of a privacy breach were well founded and that Health Canada violated the federal Privacy Act by referencing the Marihuana Medical Access Program on the envelope in combination with the name of the addressee. The OPC’s investigation is concluded. Affected individuals do not need to file complaints to the OPC.

4. In November 2013, the law firms of Branch MacMaster LLPStrosberg Sasso Sutts LLP (formerly Strosberg, Sutts LLP) Charney Lawyers PC and McInnes Cooper agreed to work together and commenced a proposed class action against the Government of Canada on behalf of all persons who were sent a letter from Health Canada in an envelope that referred explicitly to the “Marihuana Medical Access Program”. On August 29, 2017, the law firms filed a Fifth Amended Statement of Claim in the Federal Court of Canada.

5. The proposed representative plaintiffs in the class action are “John Doe” and “Suzie Jones” (who wished to use pseudonyms to protect their privacy) and Penny Kozmenski. On February 25, 2014, the Court granted an order permitting the use of pseudonyms for two of the plaintiffs, and on July 24, 2014 the Government of Canada’s appeal of this order was dismissed.

6. On July 27, 2015, the Federal Court of Canada granted the plaintiffs’ motion for certification of the action as a class proceeding. The Government of Canada appealed the July 27, 2015 certification order. On June 24, 2016, the Federal Court of Appeal allowed the appeal in part, but upheld the certification order with respect to causes of action in negligence and breach of confidence. Some terms of the certification order remained in dispute requiring further determination by the Court on March 14, 2018. On January 9, 2019, the Government of Canada’s appeal of the March 14, 2018 order was dismissed by the Federal Court of Appeal.

7. On April 22, 2022, the Federal Court of Canada issued the Certification Order. The Order of Justice Phelan may be viewed here: English and French.

8. The Notice of Certification may be viewed here: English and French.

9. The Class is defined as:
All persons who were sent a letter from Health Canada in November 2013 that had the phrase Marihuana Medical Access Program or Programme d’Accés à des Fins Médicales visible on the front of the envelope.

10. If you fall within the class definition, you are automatically included in this class action. The deadline to opt out of this class action was Thursday, July 21, 2022.

11. The plaintiffs made a motion for summary judgment. The summary judgment application was heard in October, 2023.

12. On December 6, 2023, the Federal Court released its reasons for decision granting the Plaintiffs’ summary judgment application. The decision can be found  here. The Court dismissed the Plaintiffs’ claim for breach of confidence but found that Health Canada owed the Class Members a duty of care and that the duty owed in the circumstances was breached. The Court determined that the Class Members’ damages claims for negligence may be pursued by individual trials or assessments, the process for which will be determined at an upcoming case management conference. An update will be provided once that process is determined, Class Members do not need to do anything at this time.

IMPORTANT NOTE

This website provides general information to Class Members on a class action commenced against the Government of Canada in the name of His Majesty the King.

The site is not designed to answer questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice in respect of your individual situation nor use it as a substitute for individual legal advice.

This website is updated from time to time to provide Class Members with further information.

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