Condon et al. v. Canada

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Court of Appeal (Canada)
• Judge: Ryer, Webb and Near, JJ.A.
• Citation: (2015), 474 N.R. 300 (FCA),2015 FCA 159
• Date: 19 February 2015

Condon v. Can. (2015), 474 N.R. 300 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2015] N.R. TBEd. JL.008

Gaelen Patrick Condon, Rebecca Walker and Angela Piggott (appellants) v. Her Majesty the Queen (respondent)

(A-165-14; 2015 FCA 159; 2015 CAF 159)

Indexed As: Condon et al. v. Canada

Federal Court of Appeal

Ryer, Webb and Near, JJ.A.

July 6, 2015.

Summary:

The Minister of Human Resources and Skills Development Canada was responsible for the Canada Student Loans Program. In 2012, the Minister lost an external hard drive containing personal information about the three named plaintiffs as well as approximately 583,000 other individuals. That personal information included the names, dates of birth, addresses, student loan balances, and Social Insurance Numbers of those individuals. The hard drive was never recovered. The plaintiffs alleged several faults and breaches on the part of the Minister and sought to recover damages suffered as a result of the data loss. The plaintiffs brought a motion to certify an action as a class proceeding (Federal Courts Rules, rule 334.16) against Her Majesty the Queen, named as representative of the Minister. The Minister argued, inter alia, that a class proceeding was not the preferable procedure and that the plaintiffs had suffered no compensable damages.

The Federal Court, in a decision reported 450 F.T.R. 216, granted the motion and certified the action as a class proceeding, but only in relation to certain claims being made by the plaintiffs. The plaintiffs appealed, arguing that their claims for negligence and breach of confidence should also be included as part of the class proceeding.

The Federal Court of Appeal allowed the appeal and and referred the matter back to the Federal Court to include the claims for negligence and breach of confidence in the nature of the claims asserted on behalf of the class as defined by the Federal Court judge and to determine the common questions in the class proceeding in relation to the claims for negligence and breach of confidence.

Practice - Topic 208

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - For damages - [See Practice - Topic 209.3 ].

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Whether pleadings disclose a reasonable cause of action - The Minister responsible for the Canada Student Loans Program lost an external hard drive containing personal information about approximately 583,000 individuals (including the plaintiffs) - The plaintiffs moved to certify a class action, alleging negligence and breach of confidence - The Federal Court held that it was plain and obvious the claims would fail for lack of compensable damages - The plaintiffs appealed - The Federal Court of Appeal allowed the appeal - The Federal Court judge erred in law in evaluating the merits of the claims based on the evidence submitted by the parties (i.e., no evidence was to be submitted at the hearing of this type of motion) - The judge also erred and in failing to address the plaintiffs' claims for special damages for "costs incurred in preventing identity theft" and "out-of-pocket expenses" in her analysis - See paragraphs 9 to 23.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - [See Practice - Topic 209.3 ].

Practice - Topic 1458

Pleadings - Statement of claim - General - Necessity of claiming damages or relief - The Federal Court of Appeal stated that with respect to damages, the Federal Courts Rules (rule 182) required only that the claim specify the nature of the damages claimed - The court noted that a general description of the nature of the damages claimed was sufficient in Brazeau v. Canada (FC 2012) to deny a motion to strike that part of the pleadings related to a negligence claim - See paragraph 20.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 7].

Manuge v. Canada (2008), 329 F.T.R. 167; 2008 FC 624, refd to. [para. 9].

Pro-Sys Consultants Ltd. v. Infineon Technologies AG et al. (2009), 277 B.C.A.C. 271; 469 W.A.C. 271; 98 B.C.L.R.(4th) 272; 2009 BCCA 503, refd to. [para. 10].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 11].

R. v. Imperial Tobacco Canada Ltd. - see British Columbia v. Imperial Tobacco Canada Ltd. et al.

British Columbia v. Imperial Tobacco Canada Ltd. et al. (2011), 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 12].

Brazeau et al. v. Canada, [2012] F.T.R. Uned. 660; 2012 FC 648, refd to. [para. 19].

Biladeau v. Ontario (Attorney General) (2014), 328 O.A.C. 180; 2014 ONCA 848, refd to. [para. 21].

Statutes Noticed:

Federal Courts Rules (1998), rule 334.16(1)(a) [para. 9]; rule 174, rule 182 [para. 19].

Counsel:

Ted Charney and Samantha Schreiber, for the appellants;

Catharine Moore and Natalie Haman, for the respondent.

Solicitors of Record:

Charney Lawyers, Toronto, Ontario, for the appellants;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard in Toronto, Ontario, on February 19, 2015, before Ryer, Webb and Near, JJ.A., of the Federal Court of Appeal. The following decision was delivered in Ottawa, Ontario, on July 6, 2015, for the court, by Webb, J.A.