HALIFAX, July 28, 2015 /CNW/ – 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 over 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. In March 2015, the Office of the Privacy Commissioner of Canada concluded that Health Canada violated federal privacy laws. 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. 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,” said Ward Branch of Branch MacMaster LLP. “The Government of Canada has fought us at every turn, but have also lost each motion to date. 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. “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. 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,” said Ted Charney of Charney Lawyers. “Over one thousand people have registered on our secure website to tell us how the breach affected them. We will continue to pursue justice for those harmed by the breach,” said David Robins of Sutts, Strosberg LLP. 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. 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. About Branch MacMaster LLP Branch MacMaster LLP is a boutique litigation law firm established in 1998 and located in Vancouver, British Columbia. The firm focuses on class actions, health, insurance, and personal injury. The firm provides responsive, flexible, and cost-effective service to their clientele. About Charney Lawyers Charney Lawyers is a Toronto, Ontario firm with an established reputation for excellence in advocacy. The firm is experienced in personal injury, class proceedings, commercial litigation, insurance defence, employment law, medical malpractice, food borne illness, construction law and appeals. About McInnes Cooper McInnes Cooper is among the top business and litigation law firms in Canada, with more than 200 lawyers in seven Canadian offices, serving clients across North America and abroad. The firm is a market leader in energy and natural resources, business, litigation, employment, tax, real estate and insurance law. McInnes Cooper is the exclusive member firm in Newfoundland, New Brunswick, Nova Scotia and Prince Edward Island for Lex Mundi – the world’s leading network of independent law firms with in-depth experience in 100+ countries worldwide. About Sutts Strosberg LLP Sutts, Strosberg LLP is a nationally recognized law firm committed to excellence in litigation, with offices in Windsor and Toronto. The firm has a special interest in class actions, having represented groups or classes of individuals in every province and territory, and in every level of court, and is experienced in complex civil and commercial disputes, corporate, commercial and financial transactions, medical malpractice cases, personal injury cases, family law and criminal law. SOURCE McInnes Cooper
I wish I had a dollar for every mailing error where someone’s Social Security number was exposed in the envelope window or embedded in the mailing address – or where one person’s statement got combined with another person’s in the same envelope. But those kind of mailing errors are nothing compared to a mailing error by Health Canada that resulted in outing 40,000 medical marijuana users. How the heck no one noticed or caught the return mailing address as problematic is the definition of “human error.” Not surprisingly, a lawsuit has been launched. The Canadian Press reports: A proposed class action lawsuit has been launched after a slip-up by Health Canada outed thousands of medical marijuana users. The suit alleges the department put the privacy and safety of 40,000 users at risk when it sent them personally addressed letters in an envelope that on its outside explicitly referred to the Medical Marijuana Access Program. The legal action was filed Monday in Federal Court on behalf of Vancouver marijuana activist Jason Wilcox, who was among those identified in last week’s mailings. Read more on CTV. Since there is no un-ringing this bell, I wonder how a court would determine harm and damages for the class. Some people, who have kept their medical marijuana use confidential from family, neighbors, and co-workers may find themselves now suffering severe discrimination or social consequences. Others who have been more open about their need for medical marijuana may not suffer any real impact. So what would a court do? And why did Health Canada suddenly switch to mailing via Canada Post when it had previously used a more discreet service that protected privacy?
Trevor Greenway reports: Tens of thousands of medical marijuana patients across the country are receiving a mass mailing from Health Canada exposing them as medical cannabis users and many are now in panic mode. The letter, which Health Canada says was sent to 40,000 people, comes in a white envelope, and has a return address with the words “Medical Marijuana Access Program” written across the top, followed by the patient’s name and address. Many people say their privacy has been violated and fear their houses may be robbed and their home growing gardens targeted. Read more on Metro. It was an “administrative error,” but wow, that’s bad…
Andrea Gunn reports yet another incident where Canadian medical marijuana users have been outed by a mailing gaffe. Veterans across Canada are reporting a security breach involving mail sent out by Veterans Affairs Canada that lets anyone looking at the outside of the envelope know it was issued under the federal medical marijuana program. Veteran Jason Hemsworth received a piece of mail with information regarding his medical marijuana prescription, which is covered through Medavie-Blue Cross. Under the little plastic window displaying his address, it reads “Re: Cannabis for Medical Purposes,” for anyone to see. This one affected 3,000. A larger one, affecting 40,000 recipients of a 2013 Health Canada mailing, resulted in a privacy class action. Read more about this newest one on The Chronicle Herald.
Claire Mellor reports: Lawyers representing plaintiffs in a proposed class action, claiming Health Canada breached privacy rights and jeopardized the safety of medical marijuana users, will be seeking damages of up to $20,000 per person, a court in Halifax heard Wednesday. Federal Court Justice Michael Phelan is hearing a certification application for a proposed class action, put forward by medical marijuana users and growers across Canada, who were licensed under the previous federal medicinal marijuana program. Read more on The Chronicle Herald. Previous coverage of this case can be found on PHIprivacy.net.
Sherri Borden Colley reports the latest development in a lawsuit filed after an administrative error resulted in “outing” 40,000 medical marijuana users: Lawyers will go before a Federal Court judge in Halifax in June to ask the court to certify a proposed class action on behalf of 40,000 medical marijuana users whose privacy was breached by Health Canada in 2013. There are 2,105 Nova Scotia class members in the case. A confidentiality order protects the real names of the two lead plaintiffs, a Nova Scotia man who works as a health-care professional and an Ottawa woman who works in the legal field. In court documents, they are identified under the pseudonyms John Doe and Suzie Jones. Read more on The Chronicle Herald.
It’s deja vu all over again. First it was postal mail from Health Canada. Now it’s e-mail from Massachusetts. Kay Lazar reports: The subject line left little doubt about the contents of the e-mail sent by the Massachusetts health department. “Confirmation of Patient Certification in the Medical Use of Marijuana Online System,” it stated. More than 6,800 patients received the e-mails over the past three months telling them they had been approved for the state’s medical marijuana program. The e-mails contained detailed personal information — a practice specialists say constituted a clear violation of privacy standards. Now, after inquiries from the Globe, the state’s health department has begun altering its e-mails, stripping references to the medical marijuana program from the subject line and removing patients’ full names and unique program registration numbers from the body of the message. Read more on Boston Globe.
I generally don’t like posting press releases that are advertisements for law firms, but when they contain important news about patient privacy, I occasionally bend my own rules. The following press release provides an update on this breach and lawsuit. In a decision released on Tuesday, the Federal Court of Canada (the Court) agreed that to deny the plaintiffs anonymity in the court proceeding would disclose the very information they seek to protect and exacerbate the damage and/or risk of harm that has already been caused by Health Canada’s mailing that identified them as a participant in the Program. Health Canada, relying on newspaper articles and internet research, argued that public opinion about marihuana use has changed to be more accepting. The Court rejected this evidence as irrelevant, explaining: “What the Plaintiffs’ marijuana use discloses is their medical and health information. The Plaintiffs are patients, no simply “users”. Disclosing their identities discloses that a course of treatment has been prescribed by them by a medical doctor, and that they suffer from serious health conditions and symptoms. Identifying the Plaintiffs by name or information that discloses their personal identity also discloses that they have or are likely to have medical marihuana in their homes – something that Health Canada itself saw as a serious safety and security risk. Accordingly, I am satisfied that in the within case of John Doe and Suzy Jones, without the protection they seek on this motion, the important issues they raise in their Amended Statement of Claim may not be determined in this forum, and that the issues they raise regarding patient rights, privacy and whether Health Canada owes a duty of care and has breached that duty and is liable are issues that are in the public interest to be determined. The Plaintiffs have requested only that their personal identity be protected and with minimum intrusion on the open court process.” The law firms of Sutts, Strosberg LLP, Charney Lawyers, Branch MacMaster LLP and McInnes Cooper 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 “Medical Marihuana Access Program”. Jane O’Neill of McInnes Cooper who brought the motion on behalf of the plaintiffs says, “We are very pleased that the Court has recognized the importance of ensuring that the Plaintiffs’ right to keep their health information private is maintained throughout this proceeding.” “This is a victory for access to justice,” said Ted Charney of Charney Lawyers, co-counsel for the proposed class. “It is common sense that the Court should step up to protect the Plaintiffs so they can have their day in Court without being re-victimised in the process.” “It is important that that the Court recognized that this is not just about medical marijuana,” said Ward Branchof Branch McMaster, co-counsel for the proposed class. “But that the members of the proposed class are affected by serious health conditions which were disclosed by Health Canada’s privacy breach.” Class members are encouraged to register and stay up-to-date at www.marijuanaclassaction.com. SOURCE McInnes Cooper, via CNW