Canada: Federal Court Certifies Privacy Class Action By Medical Marijuana Patients

HealthCanadaMarihuanaMedicalAccessProgramEnvelope[CBC]

The Federal Court of Canada has certified a class action commenced on behalf of more than 40,000 medical marijuana licensees alleging that Health Canada violated their privacy.

In November 2013, Health Canada sent notices to more than 40,000 participants of the Marihuana Medical Access Program (MMAP) to advise of changes to regulations governing the use of medical marijuana in Canada. The notices were delivered in oversized envelopes that had the words "Health Canada - Marihuana Medical Access Program" on the return address, revealing to anyone who saw the envelope that the recipient was licensed to possess or produce medical marihuana for medical purposes.

Previously, Health Canada's mailings to MMAP members were discreet and made no mention of marijuana on the envelopes. Despite the Government of Canada's acknowledgement of the error, it insists that no one was harmed by the breach.

Recipients were upset, and maintain their privacy had been violated. Some said they worried they'd lost their jobs or become victims of a home invasion, reports CBC News.

"It opened us up for discrimination," said Debbie Stultz-Giffin, chair of Maritimers Unite for Medical Marijuana Society. She was one of 2,105 Nova Scotians who received the letter, and she said it left patients and caregivers open to everything from condemnation from family and friends to robbery.

In March 2015, the Office of the Privacy Commissioner of Canada concluded that Health Canada violated federal privacy laws, but that ruling didn't allow for any compensation. However, in the recent certification decision, the Court found that the class action is necessary to provide access to justice because the Privacy Commissioner cannot order the Government of Canada to compensate class members harmed by the breach.

The Government has 30 days to appeal the certification decision.

McInnes Cooper, Branch MacMaster LLP, Charney Lawyers, and Sutts Strosberg LLP are jointly representing the plaintiffs in the medical marijuana privacy breach class action filed in the Federal Court against the Government of Canada. The plaintiffs seek damages for breach of contract, breach of confidence, invasion of privacy and Charter violations.

"We are very glad to see this case moving forward," said Ward Branch of Branch MacMaster LLP. "The certification decision means that the Court has agreed that this is an appropriate case for a class action and that allowing all of the class members to proceed in a group is in the interests of justice.

"The Government of Canada has fought us at every turn, but have also lost each motion to date," Branch said. "We are hopeful that they will now see the wisdom of sitting down to resolve the issues created by this error."

"This is not over yet, but the thousands of affected program members should take some comfort that every legal claim we advanced on their behalf has been approved to go forward," said David Fraser of McInnes Cooper.

"When you're dealing with 40,000 people with debilitating health conditions, drawing this out is not to anyone's advantage," Fraser said. "It's best to resolve it as fast as you can."

"As citizens of this great country, we rely on our government to protect our sensitive personal information from being disclosed and to protect our privacy during all communications," said Ted Charney of Charney Lawyers. "This decision sends a clear message to the government that our Courts consider privacy to be of the utmost importance and expect our government to take its privacy obligations seriously or face the consequences."

"Over one thousand people have registered on our secure website to tell us how the breach affected them," said David Robins of Sutts, Strosberg LLP. "We will continue to pursue justice for those harmed by the breach."

While it is not necessary to "opt in" to participate in the class action, class members are urged to visit the www.marijuanaclassaction.com website to obtain updates and to register because the information collected on the secured site will assist class counsel in communicating with class members and moving the case forward. More than 1,000 patients have registered.

Those who have already registered do not need to re-register but should update their information if their circumstances change or to report further harm suffered from the breach.

Photo of Health Canada envelope which breached patient privacy: CBC