2023 FC, 2023 FC 1636

Date: 20231206 Docket: T-1931-13 Citation: 2023 FC 1636 Ottawa, Ontario, December 6, 2023 PRESENT: The Honourable Madam Justice Kane BETWEEN: JOHN DOE, SUZIE JONES and PENNY KOZMENSKI Plaintiffs and HIS MAJESTY THE KING Defendant JUDGMENT AND REASONS [ 1 ] The Plaintiffs bring this motion for

summary judgment pursuant to Rule 215(3) of the Federal Courts Rules , SOR/98-106 [the Rules ]. The Plaintiffs seek a determination of ten certified common questions in their class action regarding their claims for negligence and breach of confidence. [ 2 ] The Plaintiffs’ claims arise from Health Canada’s mass mail-out of over 41,000 letters to participants in the Marihuana Medical Access Program [MMAP] in November 2013.

The letters were sent in an envelope with a see-through window, which displayed the sender’s return address as " “Marihuana Medical Access Program” " and the full name and address of the recipient (i.e., the Class Members). The Plaintiffs allege that the mass mail-out " “outed” " their participation in the program, disclosed their confidential information, and violated their right to privacy. They allege the mail-out was

an act of negligence and breach of confidence by Health Canada. [ 3 ] For the reasons that follow, the motion for

summary judgment is granted, but only in

part in favour of the Plaintiffs. The Court finds that the Plaintiffs have not established that the Defendant’s breach of the duty of care owed in the circumstances caused class-wide damage to the Class Members and, as a result, the Defendant’s liability for damages for negligence cannot be determined as a common issue. The Court also finds that the Plaintiffs have not established that the Defendant breached their confidence. The Common Issues are answered at paras 222-223. I. Background A.

The 2013 MMAP Mail-Out [ 4 ] Health Canada, the administrator of the MMAP, sent letters to 41,457 MMAP participants in November 2013 [the mail-out]. Health Canada used 9"x12" envelopes that had a see-through window, permitting the cover page of the letter (referred to as the banner page) to be seen without opening the envelope.

The banner page displayed the full name and address of each participant along with the following return address: Marihuana Medical Access Program Health Canada AL: 0300A Ottawa ON K1A 0K9 [ 5 ] At the time of the mail-out, marihuana was a controlled substance and regulated under the Controlled Drugs and Substance Act , SC 1996, c 19 . The vast majority of participants in the MMAP had to apply and obtain authorizations to possess and/or produce marihuana for their own personal medical use under the (now repealed) Marihuana Medical Access Regulations , SOR-2001-227 [ Regulations ].

Participants were required to provide declarations that they suffered from medical conditions and/or symptoms warranting medical marihuana treatment ( Regulations, paragraph 6(1) (b)), and to provide a separate declaration from their medical practitioner ( Regulations , paragraph 4(2)(b)). [ 6 ] A smaller number of participants applied and obtained only a " “Designated Person Production Licence” " [DPPL], which authorized the licence holder to produce, store, and provide medical marihuana for medical purposes on behalf of a participant licensed to possess and use medical marihuana.

Participants who obtained only a DPPL were not required to disclose their medical condition. [ 7 ] Some participants held more than one authorization (i.e., a license to both produce and use medical marihuana). [ 8 ] Prior to the mail-out, Health Canada’s practice was to use envelopes that indicated only a generic Health Canada address as the return address without any reference to the MMAP. [ 9 ] The mail-out was intended to inform MMAP participants about upcoming changes to the Regulations , including a new prohibition on growing marijuana in a private dwelling.

Health Canada sought to notify participants well in advance of the changes and to advise them about the next steps.

[ 10 ] Health Canada contracted Canada Post for the mail-out (printing, packaging, labeling, and delivery of the letters). On October 24, 2013, Health Canada provided pre-printed envelopes to Canada Post that did not identify the MMAP or have see-through windows. [ 11 ] On October 30, 2013, Canada Post advised Health Canada that the pre-printed envelopes were damaged and there was an insufficient quantity. Canada Post also advised that the envelopes were not compatible with their equipment for mass mail-outs.

Canada Post proposed that Health Canada use more generic, oversized, windowed envelopes. [ 12 ] As noted in the Plaintiff’s record, there was an email exchange between Health Canada and Canada Post over a period of several days. Health Canada completed a form from Canada Post approving the details of the mail-out, including the use of the envelopes and the return address.

On or around November 13, 2013, Canada Post delivered the letters to MMAP participants with their full name and address and with the name " “Medical Marihuana Access Program” " visible as the sender in the return address. [ 13 ] Health Canada became aware of concerns from program participants shortly after the envelopes had been delivered. [ 14 ] On November 21, 2013, the Deputy Minister of Health Canada issued a statement acknowledging that the manner of the mail-out as a mistake and an " “administrative error” " .

The Deputy Minister stated: Health Canada recently sent approximately 40, 000 informational letters to individuals with an interest in upcoming changes to the Marihuana Medical Access Program. I have been advised that as a 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. On behalf of Health Canada, I deeply regret this administrative error. Health Canada is taking steps to ensure this does not happen again. Protection of personal information is of fundamental importance to Health Canada.

We are in discussion with the Office of the Privacy Commissioner of Canada. B. The Report of the Privacy Commissioner [ 15 ] The Office of the Privacy Commissioner of Canada [OPC] initiated its own investigation pursuant to subsection 29(3) of the Privacy Act , RSC 1985, c P-21 [ Privacy Act ] . The OPC received 339 individual complaints from recipients of the mail-out. T he OPC conducted a joint investigation rather than investigating each complaint separately. The results of the investigation were shared with all the complainants.

The OPC issued a report [the OPC Report] in 2015 titled " “Accidental disclosure by Health Canada” " . [ 16 ] The OPC summarized the complainants’ concerns (at para 15-16): 15. The complainants alleged that HC [Health Canada] failed to protect their privacy by including the name of the MMAP in a clearly visible manner on the mail-out packages, thereby revealing their personal information (i.e. their identity and involvement with the MMAP) to CPC [Canada Post Corporation]employees and members of the public. 16. The complainants cited several concerns relating to the impact of HC's actions on their personal lives.

In particular: a. Career and financial position : Some individuals raised concerns that they could lose their jobs if their employers learned of their usage of medical marihuana. b. Reputation : The use of marihuana, even for medical purposes, carries a social stigma due to its status as a prohibited substance. Some complainants alleged that they received comments from people about their association with the program as a result of the HC mail-out. c.

S afety : As mentioned in HC's letter to its clients regarding the program, " The current practice of allowing individuals to grow marijuana for medical purposes poses risks to the safety and security of Canadians. The high value of marijuana on the illegal market increases the risks of violent home invasion and diversion to the black market ." Disclosure of the fact that a person is associated with the program thus increases the above-mentioned risks to these individuals and this statement demonstrates that HC recognizes these risks. d.

Health or well-being : The purpose of the program is to offer medication to individuals who have serious medical conditions. Many of the complainants in this case alleged that their health was adversely affected due to stress following the disclosure. [ 17 ] The OPC summarized its findings: 56. We conclude that the reference to the MMAP in HC's return address in combination with the name of the addressee constitutes sensitive personal information under the Privacy Act .

HC has not satisfied the OPC that it had appropriate consent for the disclosure of this information, nor did it establish that any of the permissible disclosures under section 8(2) of the Act would apply in the circumstances. We accordingly conclude that HC was in contravention of the Act . Therefore, the complaints are well-founded. [ 18 ] The OPC included other observations, at paras 57-60, noting that the mail-out did not reflect Health Canada’s usual practices and was an administrative error, and that Health Canada had since established strict mail out protocols and created a Privacy Working Group.

The OPC Report also noted that Health Canada should consider the sensitivity of the information it holds and the high level of protection required.

C. The Statement of Claim [ 19 ] The Plaintiff’s Statement of Claim, originally made in November 2013 and subsequently amended six times, seeks, in addition to an order for certification and appointment of the representative Plaintiffs: … c . A declaration that Health Canada owed a duty of care to the Plaintiffs and other Class Members, and the Defendant breached that duty causing the Plaintiffs and class members to suffer damages; ci . A declaration that Health Canada breached the confidence of the Plaintiffs and other Class Members; cii .

Damages for negligence and breach of confidence, including damages for, among other harms, i . costs incurred to prevent home invasion, theft, robbery and/or damage to personal property including marijuana plants and related paraphernalia; ii . costs incurred for personal security; iii . damage to reputation; iv . loss of employment; v . reduced capacity for employment; vi . mental distress; vii . damages for distress, humiliation and anguish associated with realizing that their participation in the medical marijuana program had been made public to anyone who had seen the envelope, including;

a) A sense of loss of control over informational privacy:

b) Anxiety and worry about who and in what circumstances anyone had access to this information; and

c) Fear and uncertainty about whether others were aware that they were participants viii . out of pocket expenses; and ix . inconvenience, frustration and anxiety associated with taking precautionary steps to reduce the likelihood of home invasion, theft, robbery and/or damage to personal property and to obtain personal security; ciii . General damages; civ . Aggravated damages; cv . Punitive damages; [no longer sought] cvi . An Order pursuant to Rule 334.28(1) and (2) for the aggregate assessment of monetary relief and its distribution to the Plaintiffs and the Class Members; cvii .

Pre-judgment and post-judgment interest pursuant to sections 36 and 37 of the Federal Courts Act, R.S.C. 1985, c. F- 7 ; cviii . Costs, if appropriate; and, cix . Such further and other relief as this Honourable Court deems just. [ 20 ] The action was ultimately certified as a class proceeding with ten Common Questions ( John Doe v Canada , 2022 FC 587 [ John Doe 2022 ]). D.

Class Members and Representative Plaintiffs [ 21 ] The Class Members are 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’Accès à la Marihuana à des Fins Médicales visible on the front of the envelope. [ 22 ] There are three representative plaintiffs. The two anonymous representative Plaintiffs, John Doe and Suzie Jones, provided affidavits in 2014 at the time certification was sought.

Penny Kozmenski is the named Plaintiff, as required by the Federal Court of Appeal in Canada v John Doe , 2016 FCA 191 [ John Doe FCA 2016 ]). Ms. Kozmenski swore her affidavit in November 2016 when she was added as a named representative Plaintiff. No additional or more recent affidavits from the representative Plaintiffs have been provided. [ 23 ] John Doe attested that he lives in a rural area and is employed in the health care field. He attested to suffering from spinal cord

disease and arthritis. Health Canada granted him authorization to possess and produce marihuana for his personal use. He attested that he had only informed three people of his participation in the MMAP, that he only consumed marihuana in his home in private and that he kept his medical conditions private. He expressed concern that if his use of medical marihuana was discovered, his employer would reprimand him and his professional regulatory body would question his competence, even though his use of marihuana did not affect his abilities. Mr. Doe also asserted that he would be targeted for home invasion.

He stated that the receipt of the November 2013 mail out caused him " “considerable stress and anxiety” " and that he was " “dumbfounded” " when he saw the envelope. [ 24 ] Suzie Jones attested that she lived in a larger city at the time of the mail-out and was working as a paralegal. She attested to suffering from endometriosis and chronic pain. Health Canada granted her authorization to possess marihuana for her personal use. She attested that her medical condition was well known by her friends and family, and several knew of her participation in the MMAP. She expressed the same concerns as Mr.

Doe about possible reprimands from her employer and her professional regulatory body and about home invasion. Ms. Jones also attested that she experienced " “considerable stress and anxiety” " and was " “dumbfounded” " upon receipt of the envelope. [ 25 ] Ms. Kozmenski attested that she lived in Windsor, Ontario and, at the time of the mail-out was employed as a personal support worker. She attested to suffering from pain from herniated and bulging discs in her back, arthritis in her shoulders and hips, and fibromyalgia.

Health Canada granted her authorization to possess and produce marihuana for her personal use. Ms. Kozmenski attested that she only disclosed her MMAP participation to 12 people. She noted that her then 16 year-old daughter retrieved the mail-out and, as a result, she had to explain her condition and marihuana use to her daughter and her then 7-year-old son. Ms. Kozmenski attested that she suffered " “considerable stress and anxiety” " , was " “dumbfounded” " upon receipt of the envelope, and feared for her safety. Ms. Kozmenski ultimately decided to move two years after receiving the envelope. Ms.

Kozmenski also attested that she joined the Cannabis Rights Coalition and the Cannabis in Canada group in 2014. E. Certification Proceedings [ 26 ] The procedural history of this class action since 2013 is summarized briefly below. [ 27 ] In the context of the Plaintiffs’ motion for certification, the Defendant sought to strike three paragraphs from the affidavit of the Plaintiffs’ affiant, Mr. David Robins [the Robins’ affidavit], which had been tendered to support certification. In John Doe v Her Majesty The Queen , 2015 FC 236 [ John Doe 2015 ] , Justice Rennie dismissed the Defendant’s motion.

The paragraphs at issue summarized information provided by a " “self-selected and unidentified group of potential class members” " in response to a questionnaire.

The information included responses about the impact of the mail-out (for example, concerns about reputation, employment, security, and stress). [ 28 ] Justice Rennie found that the paragraphs at issue were not impermissible hearsay given that the affidavit was tendered only to support certification and not to address the merits of the claim, noting at para 8: " “[t]he evidence is not being tendered to establish that putative class members have suffered damages, but that the individuals claiming to be class members allege that they suffered damages” " [emphasis in original].

Justice Rennie concluded that the evidence was not hearsay given its purpose (at paras 11, 13). [ 29 ] In John Doe v Canada , 2015 FC 916 , Justice Phelan found that the Plaintiffs’ claims could proceed as a class proceeding, noting, at para 51, that " “the common issues will move the litigation forward” " .

The Court certified the common questions proposed by the Plaintiffs alleging six different torts – breach of contract, breach of warranty, negligence, breach of confidence, intrusion upon seclusion, publicity to public life, and breach of the reasonable expectation of privacy under the Charter – noting, at para 65, that some refinement to the common questions might be needed. [ 30 ] In John Doe FCA 2016, the Federal Court of Appeal granted the Defendant’s appeal in part and struck several causes of action, leaving only the causes of action in negligence and breach of confidence. [ 31 ] In Canada v John Doe , 2019 FCA 8 , the Federal Court of Appeal dismissed the Defendant’s appeal of the certification of the common question regarding aggregate damages.

The Court of Appeal noted, at para 1, that it had previously determined the appeal of the certification order ( John Doe FCA 2016 ) and found that " “the portion of the certification order dealing with the aggregate assessment of damages as a common question” " was a final decision. The Federal Court of Appeal added, at para 3, that it remained open to the Defendant to make the same arguments regarding the propriety of an aggregate assessment of damages in respect of the causes of actions remaining at the trial of the common issues. F.

The Common Questions [ 32 ] In John Doe 2022 , Justice Phelan certified the class action, defined the Class Members, set out the nature of the claims (negligence and breach of confidence), and identified ten Common Questions: 1 . Did Health Canada owe the Class Members a duty of care in its collection, use, retention and disclosure of the Personal Information? 2 . If yes, did Health Canada breach that duty of care when it sent the Envelope? 3 . Did the Class Members communicate the Personal Information to Health Canada? 4 .

If yes, did Health Canada misuse the Personal Information in its collection, use, retention or disclosure of the Personal Information? 5 . If yes, was such misuse of the Personal Information to the detriment of the Class Members?

6 . If yes, did Health Canada breach the confidence of the Class Members in its collection, retention or disclosure of the Personal Information? 7 . Is the Defendant liable to pay damages incurred by the Class Members for the causes of action? 8 . Can the Class Members’ damages be assessed in the aggregate pursuant to Rule 334.28(1)? 9 . Does Health Canada’s conduct justify an award of punitive damages? 10 . Are the Class Members entitled to pre- and post-judgment interest pursuant to the Crown Liability and Proceedings Act , RSC c C-50? II. The Motion for

Summary Judgment [ 33 ] The issue on this motion is whether the Court should grant

summary judgment and, if so, whether and how the common issues should be answered . [ 34 ] Rule 215 of the Federal Court Rules states: If no genuine issue for trial Absence de véritable question litigieuse 215

(1) If on a motion for

summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant

summary judgment accordingly. 215

(1) Si, par suite d’une requête en jugement

sommaire, la Cour est convaincue qu’il n’existe pas de véritable question litigieuse quant à une déclaration ou à une défense, elle rend un jugement

sommaire en conséquence. Genuine issue of amount or question of law Somme d’argent ou point de droit

(2) If the Court is satisfied that the only genuine issue is … (

b) a question of law, the Court may determine the question and grant

summary judgment accordingly.

(2) Si la Cour est convaincue que la seule véritable question litigieuse est : …

b) un point de droit, elle peut statuer sur celui-ci et rendre un jugement

sommaire en conséquence. Powers of Court Pouvoirs de la Cour

(3) If the Court is satisfied that there is a genuine issue of fact or law for trial with respect to a claim or a defence, the Court may (

a) nevertheless determine that issue by way of

summary trial and make any order necessary for the conduct of the

summary trial; or (

b) dismiss the motion in whole or in part and order that the action, or the issues in the action not disposed of by

summary judgment, proceed to trial or that the action be conducted as a specially managed proceeding.

(3) Si la Cour est convaincue qu’il existe une véritable question de fait ou de droit litigieuse à l’égard d’une déclaration ou d’une défense, elle peut :

a) néanmoins trancher cette question par voie de procès

sommaire et rendre toute ordonnance nécessaire pour le déroulement de ce procès;

b) rejeter la requête en tout ou en

partie et ordonner que l’action ou toute question litigieuse non tranchée par jugement

sommaire soit instruite ou que l’action se poursuive à

titre d’instance à gestion spéciale. [ 35 ] Rule 215, like all of the Rules , must be interpreted in light of Rule 3 , which guides the Court to " “secure the just, most expeditious and least expensive outcome of every proceeding” " and to consider the principle of proportionality, including the complexity and

importance of the issues. [ 36 ] As the Supreme Court explained in Hryniak v Mauldin , 2014 SCC 7 [ Hryniak ] , motions for

summary judgment are an important means to avoid the time and expense associated with a full trial in appropriate cases, thereby conserving judicial resources and promoting access to justice. In Hryniak , the Supreme Court of Canada stated, at paras 49-50: There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [ 37 ] In Milano Pizza Ltd v 6034799 Canada Inc , 2018 FC 1112 [ Milano Pizza ] , Justice Mactavish summarized the law regarding motions for

summary judgment as they apply in this Court. Justice Mactavish explained the notion of a " “genuine issue for trial” " , the test on a motion for

summary judgment, the onus on the respective parties, and other key principles at paras 31, 33–36, and 40. The principles, which have been reiterated in many subsequent cases, are not in dispute. The principles include that: the onus is on the party seeking

summary judgment to establish that there is no genuine issue for trial; all parties, including the responding party, must “put their best foot forward”; responses to motions for

summary judgment cannot be based upon what might be adduced as evidence at a later stage in the proceeding; the record before the motions judge must permit the judge to find the facts necessary to resolve the dispute;

summary judgment should not be granted where the necessary facts cannot be found, or where it would be unjust to do so; and, judges should proceed cautiously because granting

summary judgment will preclude a party from presenting evidence at trial. [ 38 ] More recently, the Federal Court of Appeal reiterated these principles in Saskatchewan (Attorney General) v Witchekan Lake First Nation , 2023 FCA 105 at para 22 [ Witchekan ]. [ 39 ] On their motion for

summary judgment, the Plaintiffs bear the high burden of demonstrating that there is no genuine issue for trial (Rule 215(1); Witchekan at para 23 ; Milano Pizza at para 34 ; CanMar Foods Ltd v TA Foods Ltd , 2021 FCA 7 at para 27 [ CanMar Foods ]). Although the Defendant agrees that there is no genuine issue for trial, both parties must still put their " “best foot forward” " to permit the Court to address the issues on this motion. III. Overview of the Position of the Parties A.

The Plaintiffs’ Position [ 40 ] The Plaintiffs submit that the evidence is not in dispute and that all Certified Questions should be answered in their favour. The Plaintiffs argue that Health Canada was negligent; it breached the duty of care it owed to Class Members to protect their personal information from disclosure without their consent. The Plaintiffs submit that liability and damages for negligence are not common questions and they do not need to establish damages at this stage, rather, damages for negligence can be assessed on an individual basis at individual issues trials or assessments.

The Plaintiffs note that not all Class Members are likely to establish damages for negligence. The Plaintiffs also argue that Health Canada breached their confidence. [ 41 ] The Plaintiffs argue that privacy rights require protection and that the common law tort of breach of confidence should evolve to protect privacy in an analogous manner as the statutory tort of breach of privacy that exists in some provincial legislation, and in line with recent developments in the UK and jurisprudence related to the Charter of Rights and Freedoms , subsection 6(1),

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ]. The Plaintiffs submit that the misuse of confidential information need not be intentional, and that there is no need for them to show class-wide detriment because the breach, on its own, is detrimental.

They argue that remedies for breach of confidence are flexible given their equitable foundation and justify an award of aggregate damages and therefore, that they do not need to show proof of actual harm. [ 42 ] The Plaintiffs alternatively submit that if the actual harm to Class Members must be established, there is sufficient evidence on the record to show class wide harm. B. The Defendant’s Position [ 43 ] The Defendant agrees that there is no genuine issue for trial and that the common issues can be answered on this motion for

summary judgment in favour of the Defendant. [ 44 ] The Defendant submits that Health Canada did not breach any duty of care owed to Class Members. The Defendant adds that the Plaintiffs have not provided evidence of compensable harm or damages caused by the Defendant, which are elements of the cause of action in negligence. [ 45 ] The Defendant also submits that the Plaintiffs have not met the test for breach of confidence, which requires intentional misuse of

confidential information to the detriment of the Plaintiffs. [ 46 ] The Defendant submits that the common law tort of breach of confidence cannot be expanded to mimic the statutory torts for breach of privacy that exist in some provinces, as suggested by the Plaintiffs. [ 47 ] The Defendant submits that the certified common questions frame the claim and this motion for

summary judgment. The Defendant submits that Questions 7 and 8 require a finding of liability for both negligence and breach of confidence and that the determination of liability cannot be left to individual issues trials or assessments as the Plaintiffs now argue. The Court cannot answer whether the Defendant should pay damages in negligence or breach of confidence unless the Court finds—as a common issue—that the Defendant is liable. IV. Preliminary Issues [ 48 ] The Plaintiffs sought to file written reply evidence to address issues raised by the Defendant that the Plaintiff characterises as " “new” " .

First, to reply to the Defendant’s submission that the Plaintiffs must meet the test in Anns v Merton London Borough Council (1977), [1978] AC 728 (HL) (adopted in Cooper v Hobart , 2001 SCC 79 ), known as the Anns/ Cooper test, to establish a new duty of care.

Second, to reply to the Defendant’s submission that the Plaintiffs must establish both causation and liability for negligence and actual detriment for breach of confidence. [ 49 ] The Defendant opposed the filing of the Plaintiffs’ written reply, noting that the Rules do not provide for a reply except in special circumstances, and no special circumstances have been established. The Defendant noted that the common law tests for negligence and breach of confidence are not new issues, and the Common Questions frame the motion for

summary judgment. The Defendant, however, did not oppose the Plaintiffs’ submission of additional authorities. [ 50 ] The Court declined to accept the written reply submissions of the Plaintiffs. The Court noted that the Plaintiffs’ brought this motion and must put their best foot forward to address the Common Questions and establish their claims of negligence and breach of confidence. The Court agreed that the Defendant’s submissions did not raise new issues.

The Court permitted the Plaintiffs ample time for oral reply and to provide the Court with the additional authorities the Plaintiffs relied upon. [ 51 ] With respect to the Plaintiffs’ position that the Defendant’s submission that the Motion for

Summary Judgment be granted in the Defendant’s favour amounts to a cross-motion, to which the Plaintiffs had no opportunity to respond, the Court finds that the jurisprudence has established that a cross-motion is not required ( Milano Pizza at paras 111-112 ). V. Negligence [ 52 ] The common questions are: 1 . Did Health Canada owe the Class Members a duty of care in its collection, use, retention and disclosure of the Personal Information? 2 . If yes, did Health Canada breach that duty of care when it sent the Envelope? A.

The Plaintiffs’ Submissions [ 53 ] The Plaintiffs note that the test for negligence established in Mustapha v Culligan Canada Ltd , 2008 SCC 27 , at para 3 , [ Mustapha ], requires that they demonstrate that: the Defendant owed them a duty of care; the Defendant’s behaviour breached the duty of care; the Plaintiffs sustained damage; and the damage was caused, in fact and in law, by the breach. [ 54 ] The Plaintiffs submit that Health Canada had a duty to protect their personal information.

The Plaintiffs rely on the Privacy Act , the OPC Report, and Health Canada’s 2012 Privacy Risk Mitigation Strategy [2012 PRMSR]. [ 55 ] The Plaintiffs submit that Health Canada is subject to the Privacy Act , which establishes a statutory duty of care under subsection 8(1) . They note that the definition of personal privacy in the Privacy Act refers to information about an identifiable individual that is recorded in any form and includes " “information relating to medical history” " .

They submit that the name and address on the envelope is a record of their personal information. [ 56 ] The Plaintiffs note that the Privacy Commissioner found that the reference to the MMAP, along with the Class Members’ name and address, constitutes personal information under the Privacy Act . [ 57 ] The Plaintiffs also point to Health Canada’s April 2012 PRMSR, which acknowledges that the MMAP is subject to " “the tenets of the Privacy Act ” " and based on universally recognized privacy principles.

The Plaintiffs submit that the 2012 PRMSR shows that Health Canada was aware of the risks arising from breaches of privacy, including the risks associated with sending MMAP information to the wrong person or associating MMAP with the wrong person. [ 58 ] In response to the Defendant’s submissions, the Plaintiffs now argue that a novel duty of care should be recognized if the duty does not already exist.

The Plaintiffs submit that the application of the Anns/ Cooper test supports finding a novel duty of care. [ 59 ] The Plaintiffs submit that they were in a relationship of proximity with Health Canada, the risks arising from disclosure of their information were foreseeable, and that there are no policy reasons to negate the duty of care. [ 60 ] The Plaintiffs note that there was continuous communication between Health Canada and MMAP participants, the participants

provided the required information, and they were vulnerable due to " “debilitating medical conditions” " . Health Canada held a great deal of personal medical information about the Plaintiffs, and the risks of disclosure of that information were foreseeable. [ 61 ] The Plaintiffs dispute that there are policy reasons to negate the duty of care.

They note that the Class Members are a finite group, marihuana is now legal and Health Canada will not be exposed to indeterminate liability. [ 62 ] The Plaintiffs submit that Health Canada breached the duty of care by: failing to meet its statutory duties and its own established policies for the collection, retention, security, and disclosure of personal information of Class Members; failing to establish effective policies to manage personal information; failing to take reasonable steps to prevent disclosure of personal information; failing to keep personal information secure and confidential; and, for posting non-mailable matters. [ 63 ] The Plaintiffs submit that the 2012 PRMSR shows that Health Canada knew that a breach of its duty of care would cause damage to the Class Members.

The Plaintiffs also note that Health Canada’s letter advised participants that the changes to the program were necessitated by the " “risk of violent home invasion and diversion [of marihuana] to the black market” " .

The Plaintiffs submit that Health Canada’s negligence in the mass mail-out perpetuated these same risks. [ 64 ] The Plaintiffs dispute that the use of windowed envelopes was an inadvertent error, noting that Health Canada approved the use of the windowed envelopes with the return address and the Deputy Minister stated that this was not standard practice. [ 65 ] The Plaintiffs submit that the Health Canada’s mass mail-out disclosed the Class Members’ personal information without their consent, caused them distress, humiliation, anguish, anxiety, fear, and uncertainty as a result of their loss of control over their personal information. [ 66 ] The Plaintiffs note that Common Question 7 asks whether the Defendant is liable to pay damages for the causes of action.

The Plaintiffs submit that Health Canada’s liability for damages flows from the breach of the duty of care. The Plaintiffs assert that the Court should order individual trials or assessments to determine the damage awards for negligence for Class Members, as contemplated in the Litigation Plan. [ 67 ] In response to the Defendant’s submission that the Plaintiffs must show damages for negligence now, the Plaintiffs note that Common Questions 1 and 2 ask only whether there was a duty and whether it was breached.

The Plaintiffs submit that there is no need to establish liability and damages as a common issue and that this would be assessed at individual issues trials. As an example, the Plaintiffs point to Rumley v British Columbia , 2001 SCC 69 at para 36 [ Rumley ], where the Supreme Court of Canada noted that injury and causation arising from alleged systemic negligence should be litigated at individual trials.

They also point to Pioneer Corp v Godfrey , 2019 SCC 42 at para 120 [ Pioneer ], where the Supreme Court of Canada noted several possibilities to determine which class member suffered losses after liability had been determined. [ 68 ] The Plaintiffs acknowledge that at the individual issues trials or assessments, some Class Members may succeed in demonstrating compensable damages and others not. [ 69 ] Alternatively, the Plaintiffs argue that if evidence of class-wide harm is required to show damages for negligence, there is such evidence on the record. The Plaintiffs rely on: the OPC Report, which sets out a

summary of complaints; the Robins’ affidavit, provided by the Plaintiffs’ at the motion for certification in 2014, which sets out a

summary of responses to the survey by class counsel; and Health Canada’s receipt of complaints following the mail-out.

The Plaintiffs also rely on their expert reports, which opined that there was widespread stigma associated with the use of medical marihuana prior to legalization and, to some extent, following legalization. [ 70 ] The Plaintiffs also rely on the affidavits of the three representative plaintiffs, who described their damages as stress, anxiety, and feeling dumfounded. [ 71 ] In response to the Court’s question about why no additional or more recent affidavits from the MMAP participants had been filed, the Plaintiffs responded that these were not necessary to address Common Questions 1 and 2, and that if the Court requires evidence of damages, the Court can make an order for special proof or modes of proof. [ 72 ] With respect to damages sought, the Plaintiffs acknowledge that their Notice of Application did not seek damages for the three representative Plaintiffs, but that they sought this relief in their Memorandum of Fact and Law for this Motion.

However, the Plaintiffs now submit that the three representatives’ claims should be determined at a

summary trial or individual assessment. The Plaintiffs also acknowledge that the affidavits of John Doe and Suzie Jones do not support damages for negligence; however, the affidavit of Ms. Kozmenski may do so. B. The Defendant’s Submissions [ 73 ] The Defendant submits that the Plaintiffs have failed to establish that Health Canada owed them a duty of care, breached the duty of care, or that they suffered damages caused by the breach of any duty of care.

As a result, the Defendant is not liable for negligence. [ 74 ] The Defendant submits that a breach of the Privacy Act (which is denied) does not give rise to a cause of action. The Defendant notes that there is no statutory duty of care and no remedy set out in the Privacy Act for a breach; which reflects an intentional choice by Parliament.

The remedy under the Privacy Act is an investigation and report conducted by the Privacy Commissioner. [ 75 ] The Defendant further submits that there is no recognized common law duty of care owed by the Crown with respect to protection of personal information under the Privacy Act . [ 76 ] Th e Defendant submits that any proposed novel duty of care now advanced by the Plaintiffs would fail the Anns/ Cooper test because the alleged harm is not reasonably foreseeable and residual policy concerns negate finding of a duty of care.

[77] The Defendant submits that there was no known or reasonably foreseeable harm because: the mail-out was delivered in accordancewith the Canada Post Corporation Act, RSC 1985, c C-10 and accompanying regulations; the mail-out did not disclose anything about aClass Member’s medical condition; it was not reasonably foreseeable that other persons in a Class Members’ household would not knowabout their participation in the MMAP; and, envelopes with similar information had previously been sent to the Class Members. [78] The Defendant argues that even if the Plaintiffs could prove that harm was reasonably foreseeable, residual policy concerns negatefinding a duty of care because such a duty would expose the government to "“virtually unlimited”" private claims given that it retains agreat deal of personal information. [79] The Defendant further argues that the Plaintiffs have not established any breach of the alleged standard of care.

The Defendantsubmits that Health Canada exercised "“the standard of care that would be expected of an ordinary, reasonable and prudent person in thesame circumstances”" (citing Ryan v Victoria, (SCC), [1999] 1 SCR 201 at para 28).

The Defendant argues that thePlaintiffs mischaracterize the 2012 PRMSR; it does not acknowledge any breach of a standard of care, but rather, demonstrates HealthCanada’s due diligence to ensure compliance with the Privacy Act. [80] The Defendant disputes the Plaintiffs’ submission that the disclosure (i.e., the mail-out) caused harm because a third party who sawthe envelope would have discovered the Class Member’s participation in MMAP.

The Defendant notes that the mail out was necessaryto inform participants of important changes to the MMAP; it was not foreseeable that the participants would be harmed; and, the gravityof the alleged harm has not been established. [81] The Defendant notes that Common Question 7 requires that the Plaintiffs establish liability and damages. The Defendant notes thatin the Plaintiffs’ Motion for

Summary Judgment, they seek a determination of the Common Questions to be followed by individualassessments. However, the Plaintiffs now argue that the Defendants should be held liable as a common issue, with individualassessments for damages to follow. The Defendant submits that this suggests a finding of liability without first finding causation anddamages as a common issue. [82] The Defendant points to Nelson (City) v Marchi, 2021 SCC 41 at para 96 [Nelson]: [96] It is well established that a defendant is not liable in negligence unless their breach caused the plaintiff’s loss.

Thecausation analysis involves two distinct inquiries (Mustapha, at para. 11; Saadati v. Moorhead, 2017 SCC 28, [2017] 1S.C.R. 543, at para. 13; Livent, at para. 77; A.M. Linden et al., Canadian Tort Law (11th ed. 2018), at p. 309-10). First, thedefendant’s breach must be the factual cause of the plaintiff’s loss. Factual causation is generally assessed using the “butfor” test (Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at paras. 8 and 13; Resurfice Corp. v. Hanke, 2007 SCC7, [2007] 1 S.C.R. 333, at paras. 21-22).

The plaintiff must show on a balance of probabilities that the harm would not haveoccurred but for the defendant’s negligent act. [83] The Defendant notes that the Plaintiffs’ current position also differs from their position on their motion for certification, where thePlaintiffs proposed that liability be determined as a common issue and the common issues were framed accordingly. The Defendantsubmits that the Plaintiffs have not provided any evidence of damages on this motion and, as a result, Question 7 must be answered in thenegative.

The Defendant notes that the jurisprudence relied on by the Plaintiffs to support their request for individual assessments(Rumley, Pioneer) set out the common questions in a different manner. [84] The Defendant argues that the certified questions are binding on both parties. The Plaintiffs have the onus to establish causation anddamages in order to establish liability, and have failed to do so. [85] The Defendant notes that a successful claim in negligence requires that the Court be satisfied, on a balance of probabilities, that eachelement of the cause of action is established for each Class Member.

The Defendant submits that the Plaintiffs have failed to establish allfour elements of a successful negligence action (i.e., existence of a duty of care, breach of the duty of care owed in the circumstances,and that the Plaintiffs suffered damages that were a result of the breach of the duty of care owed to them).

The Defendant points to BouMalhab v Diffusion Métromédia CMR inc, 2011 SCC 9 at para 53, where the Supreme Court of Canada found that "“the possibility ofordering individual recovery of damages does not relieve the plaintiff of the burden of first proving that each member of the groupsustained personal injury”". C.

Health Canada owed a duty of care to Class Members and breached the duty ofcare owed in the circumstances [86] As the Defendant notes, there is no statutory cause of action for breach of the federal Privacy Act as there is in some provinces (e.g.,British Columbia, Saskatchewan, Manitoba, and Newfoundland and Labrador).

In the absence of a statutory tort, the common law mustbe relied on (The Queen (Can) v Saskatchewan Wheat Pool, (SCC) at 211 [Saskatchewan Wheat Pool]); in this case, thecommon law tort of negligence. [87] The breach of a statutory duty does not automatically establish negligence (Holland v Saskatchewan, 2008 SCC 42 at para 9).However, as the Defendant acknowledges, the breach of a statutory duty may be a consideration and provide some evidence ofnegligence (Apotex Inc v Syntex Pharmaceuticals International Ltd (FCA), 2005 FCA 424 at para 10; Odhavji Estate v.

Woodhouse,2003 SCC 69 at para 31). [88] There is no recognized common law duty of care owed by the Crown with respect to personal information in accordance with thePrivacy Act. Whether a novel duty of care should be found is informed by the application of the Anns/Cooper test. The test was recentlyrestated in Nelson at paras 17-18: Under the first stage, the court asks whether the harm was a reasonably foreseeable consequence of the defendant’s conduct,and whether there is “a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or

harm to the plaintiff” ( Rankin’s Garage , at para. 18). Proximity arises in those relationships where the parties are in such a “close and direct” relationship that it would be “just and fair having regard to that relationship to impose a duty of care in law upon the defendant” ( Cooper , at paras. 32 and 34 ).

If there is sufficient proximity to ground a prima facie duty of care, it is necessary to proceed to the second stage of the Anns/ Cooper test, which asks whether there are residual policy concerns outside the parties’ relationship that should negate the prima facie duty of care ( Cooper , at para. 30 ) . [Emphasis added] [ 89 ] In Cain v Canada (Health), 2023 FC 55 [ Cain ], Health Canada sought to protect similar information from disclosure pursuant to the Access to Information Act , RSC 1985, c A-1 .

In Cain , Health Canada took the position that this was " “highly personal” " information that might reveal that an individual uses or produces medical marihuana and that this information should be protected.

Health Canada’s position suggests that it was in a proximate relationship with those who provided information for the purpose of obtaining authorizations to use and/or produce marihuana and had a responsibility to protect the " “highly personal” " information. [ 90 ] Although the context is different, it is inconsistent for Health Canada to now take the position that the mail-out, which revealed the name of a MMAP participant and associated them with the MMAP, did not disclose highly personal information that required protection.

Although the association between the recipient’s name and MMAP did not reveal further details of their medical condition or other personal information, the logical inference is that the recipient was involved in the MMAP, which would lead to other logical inferences about their use of marihuana (even though some recipients were only authorized to grow marihuana). [ 91 ] The Court finds that each MMAP participant was in a relationship of proximity with Health Canada.

To participate in the MMAP, the vast majority of participants had to disclose personal information describing that they had one or more of the health conditions identified in the Regulations . The forms that participants submitted included their contact information, which was either direct and exclusive contact, or contact through their appointed representative. [ 92 ] The harm from disclosing the association between the participants and MMAP was foreseeable.

In the November 2013 letter, Health Canada noted that " “[t]he current practice of allowing individuals to grow marijuana for medical purposes poses risks to the safety and security of Canadians.

The high value of marijuana on the illegal market increases the risks of violent home invasion and diversion to the black market. ” " [ 93 ] The Deputy Minister’s statement acknowledged that " “[the] protection of personal information is of fundamental importance to Health Canada” " . [ 94 ] In addition, in Cain , Justice Pentney agreed with the position taken by Health Canada regarding the need to protect personal information and found at paras 107-108: Government agencies hold all sorts of information about individuals, and while all information that qualifies as “personal” under the statutory definition merits protection, it must be acknowledged that the disclosure of some particularly sensitive types of personal information can be expected to have particularly devastating consequences.

Information about an individual’s medical condition(

s) must rank very high on any such list : it is among the most intimate information any of us possess, and the decision of whether or when to share it, and how much to disclose, can be a gut-wrenching choice, with significant consequences for the individual, their family, and friends. … Health Canada was under an obligation to try to prevent the disclosure of every individual’s personal information .

Even though it held thousands of records, the obligation was towards each individual. [Emphasis added] [ 95 ] The 2012 PRMSR also supports finding that the risks associated with the disclosure of personal information related to the MMAP were foreseeable. The PRMSR acknowledged that the MMAP " “experienced a significant number of privacy breaches” " regarding participants’ personal information (including those caused by administrative error).

While the nature of the breaches described in the PRMSR differed from the mail-out, it shows that Health Canada was aware of potential harms and was taking action to avoid further incidents. [ 96 ] The Court finds that, based on the particular circumstances (i.e., that participants in the MMAP in 2013 were required to and had provided personal information in order to be authorized to use or grow marihuana and that Health Canada communicated with MMAP participants regularly, coupled with the 2012 PRMSR and the Deputy Minister’s statement), a relationship of proximity existed.

As a result, the Court finds that Health Canada owed the Class Members a duty of care to protect their personal information. [ 97 ] The Court does not agree with the Defendant that there are broader policy considerations negating finding the duty of care. The Court is not persuaded that recognizing a duty of care in this instance will lead to " “unlimited exposure” " to claims of a breach of privacy.

This novel duty of care is related only to these particular circumstances; i.e., Health Canada required participants to provide personal medical information to establish their eligibility for the MMAP as it existed before the changes made in 2014, stored that information, and conveyed to participants through an application form that it would communicate only with the participant or their appointed representative. Finding this duty of care will not expose Health Canada to claims other than from the Class Members. [ 98 ] The Court finds that Common Question 1 is answered in the affirmative.

Health Canada owed Class Members a duty of care. [ 99 ] The Court also finds that Common Question 2 is answered in the affirmative. Health Canada breached the duty of care owed to Class Members when it sent the mail-out. [ 100 ] This finding is based on Health Canada’s obligations under the Privacy Act , the 2012 PRMSR, and by the fact that Health Canada

had reviewed and approved the details of the mail-out before it was sent. [101] Health Canada had several opportunities to review and check the details of the mail-out, including the inclusion of MMAP in thereturn address (which was a departure from previous practice) and the use of the banner page with both the return address and theparticipants name and address showing through the windowed envelope.

Given that Health Canada had previously not indicated"“MMAP”" in the return address and had developed the PRMSR to identify and mitigate various privacy breaches, it should have beenalert to the need to protect the use of the names of participants in association with the MMAP. A reasonable and prudent person in thesame circumstances would likely have taken greater precautions to ensure that the mail-out was consistent with Health Canada’sobligation to protect the participants’ privacy before approving the use of the windowed envelopes.

As noted above, Health Canada wasaware of its obligation to protect the personal information of MMAP participants. [102] Answering Common Questions 1 and 2 in favour of the Plaintiffs is not a finding that the Defendant is liable for negligence;rather, it establishes only that in the present circumstances there was a duty of care and the duty was breached. [103] To establish liability for negligence, in accordance with Common Question 7, a Class Member must prove that they suffered actualdamages that were caused by the breach of the duty of care. VI. Breach of Confidence A.

The Plaintiffs’ Submissions [104] The Plaintiffs submit that Common Questions 3, 4, 5 and 6 should be answered in the affirmative. [105] The Plaintiffs argue that the tort of breach of confidence should be expanded to recognize the importance of protectinginformational privacy and that any breach of informational privacy should be actionable per se without proof of actual loss.

ThePlaintiffs rely on Charter jurisprudence, jurisprudence on the statutory torts of breach of privacy, and on the common law tort ofintrusion on seclusion. [106] The Plaintiffs cite passages from several cases in support of their position that the tort of breach of confidence is evolving.

Theysubmit that privacy is a hallowed Charter value and Charter jurisprudence (such as R v Spencer, 2014 SCC 43 [Spencer]) should informthe development of the common law. [107] The Plaintiffs also argue that if the common law tort is not expanded as they propose, they have nonetheless satisfied the three-parttest for breach of confidence established in Lac Minerals Ltd v International Corona Resources Ltd, (SCC) [LacMinerals].

They submit that the evidence on the record is sufficient to show class-wide detriment. [108] The Plaintiffs submit that they have met the Lac Minerals test; the Class Members conveyed confidential information to HealthCanada; the information was conveyed by the Class Members in confidence; and Health Canada misused the information to the ClassMembers’ detriment. [109] The Plaintiffs rely on a report by their expert, John Wunderlich, and on the OPC’s findings to establish that they conveyedconfidential information to Health Canada in confidence. [110] The Plaintiffs point to Cain, at paras 103 and 107, regarding the confidential nature of their information.

The Plaintiffs submit thatthe information Health Canada sought to protect in Cain is the same information disclosed in the mass mail-out that Health Canada nowdisputes is a breach of confidence. [111] The Plaintiffs also rely on Ari v Insurance Corporation of British Columbia, 2022 BCSC 1475 [Ari], at paras 38-40, where theBritish Columbia Supreme Court adopted the Supreme Court of Canada’s description of the scope of informational privacy in Spencer.In Ari, the British Columbia Supreme Court found that the right to privacy extends to residential addresses and that a person should havecontrol over the dissemination of that information (at paras 33, 44-46). [112] The Plaintiffs argue that any use of confidential information other than its permitted use is a breach of confidence.

The Plaintiffsnote that Class Members did not authorize the disclosure of their personal information or its use for any purpose other than obtaining therequisite licence to grow and/or possess and use marihuana to treat their medical condition. They allege that Health Canada’s rush to sendout the information about the changes to the MMAP resulted in trading "“confidence for expediency”", resulting in misuse ofconfidential information. [113] The Plaintiffs submit that the Deputy Minister’s statement is an acknowledgment of Health Canada’s misuse and establishes thebreach of confidence.

The Plaintiffs dispute that Health Canada’s mail-out was an "“administrative error”", noting that Health Canadaapproved the misuse of their information. [114] The Plaintiffs seek to distinguish Tucci v Peoples Trust Company, 2020 BCCA 246 at para 113 [Tucci] and argue that the BritishColumbia Court of Appeal’s [BCCA] finding—that breach of confidence requires that the misuse of information be intentional—wasbased on the facts of that case, which involved a privacy breach by a third party.

The Plaintiffs suggest that Tucci is the only case thatstates that misuse must be intentional. [115] The Plaintiffs submit that because the MMAP participants shared information in confidence and Health Canada misused theirinformation, the misuse constitutes common detriment. The Plaintiffs argue that the information was used for an unauthorized purposewithout their consent. The Plaintiffs submit that the disclosure of their confidential information meets all the elements for breach ofconfidence—including detriment—and is actionable per se without demonstrating actual proof of loss.

[116] The Plaintiffs submit that it does not matter whether anyone other than the MMAP participant saw the letter; they were "“outed”"by the mail-out and this is sufficient to constitute detriment, if detriment must be shown. [117] The Plaintiffs further submit that the Court can grant a wider range of common law and equitable remedies to address a breach ofconfidence, which permits awarding damages simply for the breach without establishing proof of loss.

The Plaintiffs rely on LacMinerals to argue that there is greater remedial flexibility for a breach of confidence given its origins in both equity and common law. [118] Plaintiffs note that Canadian and international jurisprudence recognize that the concept of detriment is broad and includesemotional or psychological distress (for example, The Catalyst Capital Group Inc v VimpelCom Ltd, 2019 ONCA 354, at para 41[Catalyst Capital Group]; Lysko v Braley, (ONCA) at paras 18, 20 [Lysko]; Cadbury Schweppes Inc v FBI FoodsLtd, (BCSC), at paras 52-53, 64 [Cadbury Schweppes]; Coco v AN Clark (Engineers) Ltd, [1969] RPC 41 [Coco];Attorney General v Guardian Newspapers Ltd (No 2), [1988] UKHL 6 (BaiLII) [Guardian Newspapers]). [119] The Plaintiffs submit that in Lysko, the Ontario Court of Appeal acknowledged that disclosure could cause detriment (at para 18),and in Cadbury Schweppes Inc v FBI Foods Ltd, (SCC) [Cadbury Schweppes SCC], the Supreme Court of Canadaacknowledged that the disclosure of information on its own might be sufficient (at para 53). [120] The Plaintiffs also rely on several UK cases, including Sicri v Associated Newspapers Ltd, [2020] EWHC 3541 (QB), where thecourt found that "“an award may also be made for the commission of the wrong itself, in so far as it impacts on the values protected bythe right, provided that the purpose of such an award is compensatory, rather than having deterrent or vindicatory in nature [sic].

Suchcompensation in [sic] reflects the loss or diminution of a right to control private information”" (at para 138). The Plaintiffs point toGuardian Newspapers in support of their argument that it is in the public interest to compensate a breach of personal privacy andconfidence even in absence of detriment. [121] The Plaintiffs acknowledge that there is no Canadian jurisprudence that clearly supports the expansion of the tort of breach ofconfidence, but submit that this Court should take the initiative to expand the tort to recognize the importance of privacy.

The Plaintiffsweave together passages from Lac Minerals, Cadbury Schweppes, Jones v Tsige, 2012 ONCA 32 [Jones], Ari, and other cases, in supportof expanding the tort, including to provide a remedy for breach of confidence without proof of loss.

The Plaintiffs submit that aggregatedamages should be awarded to Class Members to recognize that their privacy was breached; there is no need for them to provideevidence to show actual loss. [122] Alternatively, if detriment must be established, the Plaintiffs submit that the Class Members’ common experience of disclosure oftheir personal medical information is sufficient. They add that the emotional distress described by the representative Plaintiffs alsoestablishes common detriment. The also rely on the Robins’ affidavit, the OPC Report findings, and the opinions of Dr. Joan Bottorf andDr.

Zachary Walsh regarding the stigma associated with the use of medical marihuana prior to its legalization as evidence of detriment toClass Members. [123] The Plaintiffs submit that all Class Members should receive a baseline award of aggregate damages to recognize the class-widedetriment. They submit that if individual Class Members can demonstrate damages exceeding the baseline amount, they can seekadditional damages at individual trials or assessments. B. The Defendant’s Submissions [124] The Defendant submits that Questions 4, 5 and 6 should all be answered in the negative.

The Defendant argues that the Plaintiffshave not established that Health Canada breached the Class Members’ confidence. [125] The Defendant submits that, in essence, the Plaintiffs are asking the Court to find that the tort of breach of confidence should bereinterpreted to fit the Plaintiffs’ circumstances and to incorporate aspects of the tort of intrusion upon seclusion, even though the tortwas struck from the statement of claim because they did not plead the necessary material facts. [126] The Defendant acknowledges that the common law has evolved and may continue to evolve, but submits that the common lawshould not be expanded to minimise the requirements of breach of confidence.

The Lac Minerals test for breach of confidence governs. [127] The Defendant submits that the Plaintiffs do not meet the three-part test, which requires the intentional misuse of the informationto the detriment of the confider. The Defendant agrees that the information was communicated by the Plaintiffs to Health Canada inconfidence but submits that the information was not necessarily confidential and there was no misuse or intent to misuse the information.The Defendant submits that the Plaintiffs provided their addresses so that Health Canada could communicate with them via mail.

HealthCanada’s error was inadvertent; there was no intent to betray the confidence of MMAP participants. The Defendant adds that thePlaintiffs have not proven any resulting detriment. [128] The Defendant disputes the Plaintiffs’ submission that a breach of the Privacy Act can establish breach of confidence. TheDefendant agrees that the information at issue is the type of information included in the definition of "“personal information”" in thePrivacy Act.

However, the Defendant disputes that Health Canada breached the Privacy Act, despite the OPC’s findings. [129] The Defendant submits that the common law tort of breach of confidence is not actionable per se. In Ari, relied on by the Plaintiffs,the British Columbia Supreme Court found that the tort of breach of privacy—as provided in the provincial statute—was actionablewithout proof of actual damages. However, there is no statutory tort of breach of privacy pursuant to the federal Privacy Act.

Nor isbreach of confidence a statutory tort. [130] The Defendant notes that the first element of the Lac Minerals test is that the information conveyed must be confidential. TheDefendant submits that although this element is not identified as a common issue, it must be established. [131] The Defendant submits that whether the information is confidential depends on the circumstances of each Class Member and

cannot be determined on a class-wide basis. The Defendant agrees that personal information may be confidential information, but this is not necessarily the case. The Defendant notes that several MMAP participants identified themselves publicly in separate legal proceedings related to the mail-out, were members of public-facing advocacy groups, or corresponded with the program directly without suppressing their names. In addition, some were quite open about their use of medical marihuana.

While their information may be personal, it is not necessarily confidential. [ 132 ] The Defendant submits that without proof that there was any disclosure of confidential information to Canada Post or other household members, no breach of confidence can be established. [ 133 ] The Defendant also submits that the receipt of the letter with the return address of the MMAP is an " “unspecified association” " because some participants were only authorized to grow marihuana and had not revealed any personal information about a medical condition to obtain their license (i.e., DPPL).

In addition, the Defendant argues that the range of medical conditions that qualified for medical marihuana was so broad that the Class Members’ medical information could not be gleaned from their receipt of the envelope. [ 134 ] The Defendant agrees that the Class members’ participation in the MMAP was communicated to Health Canada " “in circumstances importing an obligation of confidence” " (Question 3).

However, the Defendant submits that this is not enough to establish liability for breach of confidence. [ 135 ] The Defendant further submits that identifying the MMAP in the return address on the envelope is not misuse of the Plaintiffs confidential information.

The Defendant notes that Health Canada did not make any representations about how it would communicate with participants in the MMAP, only that it would communicate either directly with them or through their appointed representative. [ 136 ] The Defendant argues that breach of confidence requires an intentional betrayal of confidence ( Tucci at para 113 ) and misuse of information requires more than inadvertence.

In this case, there is no evidence that Health Canada intentionally breached the confidence of Class Members. [ 137 ] The Defendant submits that the Plaintiff cannot rely on a gap or ambiguity in the case law to suggest that the intentional tort of breach of confidence no longer requires intentional conduct by the defendant.

The Defendant submits that the jurisprudence relied on by the Plaintiffs—to suggest that the requirement for intention is not settled in the law because it was not specifically addressed in that jurisprudence—does not permit the Court to find that intention is not an element of the common law tort.

The Defendant notes that in the cases cited by the Plaintiffs (e.g., Cadbury Schweppes SCC , Lac Minerals ) the conduct at issue was intentional. [ 138 ] The Defendant further notes that even the provincial statutory torts for breach of privacy (for example, British Columbia’s Privacy Act , RSBC 1996, c 373 [BC Privacy Act]) require willfulness. [ 139 ] The Defendant submits that the Plaintiffs must also demonstrate that the alleged misuse of confidential information was to the detriment of the Class Members and have not done so. [ 140 ] The Defendant notes that detriment is both an element of the cause of action of breach of confidence and a certified question.

The Defendant acknowledges that detriment can be broadly interpreted ( Cadbury Schweppes SCC ) but argues that the representative Plaintiffs’ description of their shock and dumbfoundedness does not constitute detriment.

The Defendant notes that in Lysko , the cause of action for breach of confidence was struck because the plaintiff’s assertion of anguish and embarrassment was not sufficient to show detriment. [ 141 ] The Defendant submits that the evidence of the three representative Plaintiffs, now relied upon to prove detriment, is untested, unreliable, and insufficient. [ 142 ] The Defendant notes that they had no opportunity to cross-examine Ms. Kozmenski and that their cross-examination of John Doe and Suzie Jones was only in the context of the motion for certification.

The representative Plaintiffs were not cross-examined regarding their claims of dumbfoundedness, stress, or anxiety. The Defendant notes that there is no evidence now, 10 years after the mail-out, to prove the speculative concerns of the representative Plaintiffs materialized. The Defendant suggests that the Court may infer that this is because they did not suffer damages. [ 143 ] The Defendant further notes that John Doe and Suzie Jones did not provide any evidence that anyone other than those they had told about their marihuana use had learned about their participation in the MMAP due to the mail-out.

The Defendant adds that Ms. Kozmenski did not provide evidence of any causal link between the mail-out and the subsequent events she described. [ 144 ] With respect to the opinions of Dr. Bottorf and Dr. Walsh regarding stigma as a measure of class-wide detriment, the Defendant notes that the evidence about stigma is mixed.

The Defendant submits that the Plaintiffs’ assertions of mental distress, humiliation, and/or anxiety as a result of the stigma associated with marihuana use at that time would have been influenced by several contextual factors, as acknowledged by the Plaintiffs’ experts on cross-examination. [ 145 ] The Defendant also submits that the Robins’ affidavit, now relied on by the Plaintiffs to show detriment, is hearsay and is unreliable to establish actual harm or detriment to Class Members. [ 146 ] The Defendant argues that aggregate damages cannot be considered unless the Court finds that a breach of confidence resulted in detriment to the class and this has not been established.

The Defendant’s submissions on aggregate damages are noted below. C. Breach of Confidence Has Not Been Established [ 147 ] While Questions 3-6 do not exactly replicate the three-part test for breach of confidence established in Lac Minerals , the questions address the same basic requirements. Of note, Common Question 5 asks whether misuse of personal information was to the detriment of Class Members, an element that the Plaintiffs now seek to downplay or eliminate. Question 7 asks whether aggregate damages can be

awarded for breach of confidence , which signals that the Plaintiffs must establish all elements of the tort of breach of confidence.

(1) The tort of breach of confidence should not be expanded as proposed by the Plaintiffs [ 148 ] To succeed on the claim for breach of confidence, the Plaintiffs must meet the Lac Minerals test. The Court does not agree with the Plaintiffs that the common law tort can or should be expanded as they propose, as this would result in a new tort for privacy claims with lower thresholds than the tort of intrusion upon seclusion and the statutory torts that exist in some provinces. [ 149 ] The Plaintiffs rely on Jones in support of their submission that the common law has evolved.

They argue that, by analogy, the common law should continue to evolve to recognize the tort of breach of confidence without requiring proof of detriment and to recognize that breach of confidence should be actionable per se. [ 150 ] In Jones , the issue was whether Ontario law recognized a civil action for invasion of privacy.

The Ontario Court of Appeal [ONCA] noted at para 15 that this issue had been debated for 120 years and that other causes of action, including breach of confidence had previously been relied on. [ 151 ] The ONCA reviewed the literature, relevant statutes (including privacy legislation), American and Canadian jurisprudence (including Charter jurisprudence).

The ONCA noted, at para 66, that Charter jurisprudence " “recognizes privacy as a fundamental value in our law and specifically identifies, as worthy of protection, a right to informational privacy that is distinct from personal and territorial privacy” " . [ 152 ] The ONCA recognized the novel tort of intrusion upon seclusion in Ontario, noting, at para 65, that the recognition of this cause of action was an incremental step in the development of the common law " “in a manner consistent with the changing needs of society” " . [ 153 ] In Jones , at para 71 , the ONCA set out the elements of the cause of action for intrusion upon seclusion: [71] …first, that the defendant's conduct must be intentional , within which I would include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum. [Emphasis added] [ 154 ] The ONCA emphasized that the tort requires deliberate and significant invasions of personal privacy (at para 72).

While proof of loss is not an element, absent proof of actual pecuniary loss, the awards are modest " “but sufficient to mark the wrong that has been done” " (at para 87). [ 155 ] The Plaintiffs also rely on Insurance Corporation of BC v Ari , 2023 BCCA 331 [ Ari BCCA ] in support of their submissions that the law should more fully protect privacy rights, including informational privacy and that aggregate damages are appropriate as a remedy. [ 156 ] In Ari BCCA , the BCCA found that the trial judge did not err in considering Charter jurisprudence, including Spencer , where the Supreme Court of Canada noted that informational privacy includes the right to control use of private information.

The BCCA compared the requirements of the statutory tort in the BC Privacy Act with the requirements of the common law tort of intrusion upon seclusion (at paras 101-105).

The BCCA noted that the statutory tort requires a wilful violation of privacy without claim of right (as does the common law tort of intrusion upon seclusion), however, the statutory tort does not require that the conduct that invades privacy be highly offensive to a reasonable person or that the plaintiff show that the breach of privacy caused actual damages. [ 157 ] In Ari BCCA , the BCCA’s findings were based on the statutory tort, which differs from both the common law tort of intrusion upon seclusion and the common law tort of breach of confidence.

With respect to the issue of aggregate damages for the statutory tort of breach of privacy, the BCCA noted that British Columbia’s Class Proceedings Act , RSBC 1996, c 50 [ BC Class Proceedings Act] at

section 29 provides for aggregate awards where this can " “reasonably be determined without proof by individual class members” " . In the present case, the Plaintiffs ask that aggregate damages be awarded without proof of loss and in addition, offer nothing to assist in a reasonable determination of any such amounts. [ 158 ] In Tucci , the BCCA found that the motions judge had contemplated aggregate damages but worded the common issue regarding aggregate damages in a confusing manner. The BCCA revised the common issue to clarify.

The Court explained, at para 121, that compensatory damages require proof of loss whereas aggregate damages acknowledge a legal wrong and do not require proof of loss. However, as also noted in Ari BCCA , the BC Class Proceedings Act requires that aggregate damages can be reasonably determined. [ 159 ] Although the Plaintiffs submit that breach of confidence is akin to the tort of intrusion upon seclusion, that tort is an intentional tort that requires the conduct to be highly offensive, although it does not require proof of actual damages.

The Plaintiffs argue that breach of confidence should not be an intentional tort and that misuse on its own should be sufficient to justify a remedy, in particular, aggregate damages to acknowledge the " “legal wrong” " , and that there should be no need to prove actual loss. [ 160 ] The Plaintiffs’ extensive arguments to expand the common law tort to remove the requirement for intention and to remove the requirement that the misuse of confidential information be to the detriment of the confider would essentially lead to the recognition of a new tort with lower thresholds than those required to establish intrusion upon seclusion or the provincial statutory-based privacy torts. [ 161 ] The Plaintiffs want the Court to expand the breach of confidence tort to avoid the requirements of the tort of intrusion upon seclusion, i.e., to find that misuse of personal information does not require intention, that all misuse of personal information constitutes detriment, that the misuse or disclosure of the information need not be offensive, and that proof of damages is not required.

The Plaintiffs also propose that aggregate damages be available to recognize that detriment can arise from the misuse of personal information without

actual proof of loss. The Plaintiffs’ wish list is far more than an incremental step in the development of common law torts. [ 162 ] The Plaintiffs’ references to the Charter in support of their submissions that the common law should expand to reflect the same values is acknowledged, but the tort of intrusion upon seclusion has evolved to reflect the Charter values of privacy. The Court is not diminishing the need to respect privacy. However, the elements of the tort of breach of confidence were set out in Lac Minerals and remain unchanged.

(2) The Plaintiffs have not established that Health Canada breached their confidence [ 163 ] The Plaintiffs have not satisfied all of the elements of the tort of breach of confidence. They have not established that the misuse of their confidential information was intentional and have not established that the misuse of the information was to their detriment. (

a) The Plaintiffs conveyed confidential information to Health Canada in confidence [ 164 ] Whether the information provided by the Class Members to Health Canada was " “confidential” " (the first part of the Lac Minerals test) is disputed by the Defendant. However, while some Plaintiffs may have been open about their use of medical marihuana, there may have been others who were not or who chose to control with whom they shared this information (for example, the representative Plaintiffs).

The Defendant’s assertion that the information contained in the mail-out may not be confidential depending on the particular Class Member differs from Canada’s position in Cain . In Cain , at para 103 , the Court found that " “there are many legitimate reasons why a person may not wish others to know that they are using medical marihuana because of a medical condition, and Health Canada was rightly concerned about protecting the information it held about such matters” " .

Health Canada should not now take an inconsistent position regarding the same type of information conveyed to them by MMAP participants. [ 165 ] The Court finds that in the present circumstances, the information was confidential and was communicated in confidence. With respect to the first two elements of the Lac Minerals test and Common Question 3, the Court finds that the Class Members communicated confidential information to Health Canada in confidence. (

b) Health Canada misused the confidential information [ 166 ] Common Question 4 asks whether Health Canada misused the Class Members’ personal information in it

[…]