John Doe et al. v. Canada, (2016) 486 N.R. 223 (FCA)

• Judge: Ryer, Boivin and de Montigny, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 24, 2016
• Jurisdiction: Canada (Federal)
• Citations: (2016), 486 N.R. 223 (FCA);2016 FCA 191

John Doe v. Can. (2016), 486 N.R. 223 (FCA)

MLB headnote and full text

Temp. Cite: [2016] N.R. TBEd. JL.003

Her Majesty the Queen (appellant) v. John Doe and Suzie Jones (respondents)

(A-343-15; 2016 FCA 191)

Indexed As: John Doe et al. v. Canada

Federal Court of Appeal

Ryer, Boivin and de Montigny, JJ.A.

June 24, 2016.

Summary:

The plaintiffs, using pseudonyms, sued Her Majesty the Queen (the Crown), asserting that Health Canada identified them as participants in the Marihuana Medical Access Program by sending letters in oversized envelopes through the mail system with the return address "Marihuana Medical Access Program". They pleaded six causes of action: breach of contract and warranty; negligence, breach of confidence, intrusion upon seclusion, publicity given to public life, and breach of the right to privacy under ss. 7 and 8 of the Charter. The plaintiffs moved to have the action certified as a class action. The Crown opposed the motion.

The Federal Court, in a decision reported at [2015] F.T.R. TBEd. NO.062, allowed the motion. On the threshold question of "some basis in fact", the plaintiffs had established a sufficient basis for the court to consider the elements of certification. The plaintiffs had sufficiently pleaded each cause of action except for the Charter breach. Since the plaintiffs would be amending the action, they would have the opportunity to correct the pleading respecting the Charter claim or withdraw it. There was no dispute as to there being an identifiable class of two or more. The class was not overly broad although it could involve thousands of individuals. The court was satisfied that the common issues would move the litigation forward. The individual issues did not detract from the advantage of resolving the common issues. As for the preferable procedure, there were few practical alternatives. The Crown's suggestion of an adequate remedy under the Privacy Act failed to recognize that the Privacy Commissioner could not award damages. The court directed the plaintiffs to identify at least one public class representative. The Crown appealed the certification order. The plaintiffs cross-appealed on the requirement that they name a publicly-identified class representative. The plaintiffs abandoned their Charter claim.

The Federal Court of Appeal allowed the appeal in part. The court confirmed the order for certification, but only with respect to the cause of action for negligence and breach of confidence. The court dismissed the other causes of actions. The court dismissed the cross-appeal.

Contracts - Topic 1103

Formation of contract - General principles - Promises or assurances - The plaintiffs sued Her Majesty the Queen (the Crown) - They pleaded, inter alia, that when they applied for Possession Authorization and/or Production License under the Marihuana Medical Access Regulations, they entered into "an express or implied agreement" with Health Canada - The agreement provided that any personal information would only be used by Health Canada for internal purposes and would not be publicly disclosed and that Health Canada would comply with all relevant statutory obligations and policies concerning mailings -They asserted that the agreement was breached when Health Canada identified them as participants in the Marihuana Medical Access Program by sending letters in oversized envelopes through the mail system with the return address "Marihuana Medical Access Program" - The plaintiffs obtained an order certifying the action as a class action - The Federal Court of Appeal, in allowing the Crown's appeal in part, held that the motions judge erred in accepting, without much discussion, that the pleadings respecting the implied contract was sufficient to ground the cause of action - There was a total lack of any material facts to support the pleading - More importantly, the terms of the alleged agreement were entirely determined by statute and regulations - For there to be a contract, there had to be an exchange of promises backed by valuable consideration - Here, there was no exchange of consideration, no bargaining and no meeting of the minds - The judge's reasons did not demonstrate any consideration of the statutory nature of the Crown obligations regarding the confidentiality of the information - Applying contract law principles to the statutory regime contained within the Regulations would "contort those principles beyond all recognition" - Absent any material supporting the argument that the Crown made promises going beyond their pre-existing statutory duties and broader in scope than their statutory obligations, the plaintiffs had not sufficiently pleaded a breach of contract or warranty - See paragraphs 44 to 48.

Contracts - Topic 2721

Consideration - Necessity for - General - [See Contracts - Topic 1103 ].

Contracts - Topic 2804

Consideration - Insufficient consideration - Doing what promisor is bound to do - [See Contracts - Topic 1103 ].

Crown - Topic 2895

Crown immunity - Exceptions - Flagrant impropriety or bad faith - The plaintiffs sued Her Majesty the Queen (the Crown), asserting that Health Canada identified them as participants in the Marihuana Medical Access Program by sending letters in oversized envelopes through the mail system with the return address "Marihuana Medical Access Program" - The plaintiffs obtained an order certifying the action as a class action - The Crown appealed, asserting that s. 74 of the Privacy Act conferred immunity on the Crown from civil proceedings arising from the wrongful disclosure of personal information unless the disclosure was in bad faith - The Crown asserted that since the plaintiffs had not specifically pleaded bad faith or malice and relied essentially on bare assertions of high-handedness, callousness, wantonness, etc., unsupported by any material facts, no cause of action lay against the Crown for the alleged breach - The Federal Court of Appeal held that the Crown's argument was without merit as it rested on a misinterpretation of s. 74 - The phrase "pursuant to this Act" in s. 74 qualified the Crown immunity and restricted its application to disclosure made in compliance with the Privacy Act - None of the plaintiffs' claims rested on the Privacy Act - The immunity conferred by s. 74 was of no relevance and did not protect the Crown - See paragraphs 39 to 43.

Crown - Topic 7170

Examination of public documents - Freedom of information - Legislation - Disclosure - Personal information - [See Crown - Topic 2895 ].

Practice - Topic 209

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - General principles - The Federal Court of Appeal reviewed the general principles regarding certification of class action proceedings - See paragraphs 22 to 26.

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) - [See Contracts - Topic 1103 and Practice - Topic 209 ].

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) - The defendant appealed an order certifying the plaintiff's action as a class action - The Federal Court of Appeal, in allowing the appeal in part, held that the motions judge did not apply the correct test to the reasonable cause of action criteria - The judge erred by conflating the test for whether the pleadings disclosed a reasonable cause of action with the standard of proof applicable to the other four certification requirements - He erroneously treated "some basis in fact" as a kind of threshold question to be passed before the court considered the last four certification requirements (i.e., whether the claim had identified a proper class, raised sufficient common questions, was a preferable procedure and was represented by an adequate class representative) - "Some basis in fact" was the standard of proof applicable to the analysis of those last four requirements - Further, to the extent that he turned his mind to the requirement of pleading material facts in support of each cause of action, he seemed to be satisfied with the Privacy Commissioner's report which concluded that there had been a breach of the Privacy Act, and the other evidence filed - That was an error as he failed to distinguish between elements in the pleadings and those that were in evidence on the motion - His reasons disclosed no analysis of what, if any, pleaded material facts existed to support the various claims - While he made no particular reference to affidavit evidence in his actual analysis of each cause of action, and generally stated that the pleadings were sufficient in reaching his conclusions on each cause of action, he did not go through any thorough analysis of the allegations in the statement of claim - See paragraphs 33 to 38.

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) - The plaintiffs sued Her Majesty the Queen (the Crown), asserting that Health Canada identified them as participants in the Marihuana Medical Access Program by sending letters in oversized envelopes through the mail system with the return address "Marihuana Medical Access Program" - The plaintiffs obtained an order certifying the action as a class action - The Crown appealed, asserting that the motions judge erred in finding that the pleadings set out a viable cause of action in negligence and breach of confidence in the absence of an adequate pleading of tangible damages - The Federal Court of Appeal rejected the assertion - The plaintiffs claim indicated the nature of the damages that they were claiming, including costs incurred to prevent home invasion, theft, robbery and/or damage to personal property, loss of employment, and reduced capacity for employment - Those damages were not negligible inconveniences nor entirely speculative, and it was to be assumed that the costs had been incurred in light of the principle that a statement of claim was to be read as generously as possible at the certification stage - See paragraphs 49 to 51.

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) - The plaintiffs sued Her Majesty the Queen (the Crown), asserting that Health Canada identified them as participants in the Marihuana Medical Access Program by sending letters in oversized envelopes through the mail system with the return address "Marihuana Medical Access Program" - The plaintiffs obtained an order certifying the action as a class action - The Crown appealed, asserting that the motions judge erred in finding that a free-standing tort in publicity given to private life existed in Canada - The Federal Court of Appeal stated that bearing in mind that the novelty of a cause of action should not prevent the plaintiffs from proceeding with their case, and that the court should give a generous reading to the statement of claim, it was inclined to agree with the motions judge that the claim should not be dismissed for that reason - However, there was nothing on the facts as pleaded that might satisfy the criteria that the private information was communicated to the public at large - The motion judge erred in failing to turn his mind to the this requirement and to the absence of sufficient material facts to the support the claim - See paragraphs 52 to 56.

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) - The plaintiffs sued Her Majesty the Queen (the Crown), asserting that Health Canada identified them as participants in the Marihuana Medical Access Program by sending letters in oversized envelopes through the mail system with the return address "Marihuana Medical Access Program" - The plaintiffs obtained an order certifying the action as a class action - The Crown appealed, asserting that the motions judge erred in determining that a class action was the preferable procedure - The Crown asserted that the questions of law or fact common to the class members did not predominate over any questions affecting only individual members - The Federal Court of Appeal stated that it was no doubt true that significant individual issues and factual determinations would remain once the common issues were decided - However, it was an oversimplification for the Crown to assert that the only true commonality among the class members was that they all received a letter from Health Canada by Canada Post in an envelope containing the Program's return address - There were common questions relating to, inter alia, negligence and breach of confidence, including whether Health Canada owed the class members a duty of care, whether it breached that duty of care, and whether it breached the confidence of the class members - The resolution of those questions would move the litigation forward - Even if individual issues predominated over common issues, that did not preclude certification - The motions judge found that any concern by the Crown related to having to resolve a number of issues individually would be multiplied if there were no common resolution of certain questions - Moreover, that was only one of the criteria to be applied - As required, the judge also considered the objectives of a class action (judicial economy, access to justice and behaviour modification) and emphasized that individuals might be discouraged from defending their rights precisely where damages might be nominal or modest - It might be, as argued by the Crown, that the concern about thousands of individual claims was exaggerated given the nominal amount of damages per claimant at issue - However, the argument disregarded the access to justice objective - A class action became the preferable, and sometimes the only, mechanism that ensured access to justice when the individual damage awards might be low - For that reason, the judge was entitled to find that there was some basis in fact for finding that a class action was preferable to individual claims - See paragraphs 61 to 65.

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) - The plaintiffs sued Her Majesty the Queen (the Crown), asserting that Health Canada identified them as participants in the Marihuana Medical Access Program by sending letters in oversized envelopes through the mail system with the return address "Marihuana Medical Access Program" - The plaintiffs obtained an order certifying the action as a class action - The Crown appealed, asserting that the motions judge erred in determining that a class action was the preferable procedure as the Privacy Act created a comprehensive regulatory regime for the protection of personal information under the control of a government institution - The Federal Court of Appeal stated that the short answer to the Crown's assertion was that the Privacy Commissioner only had a recommendatory function and could not award damages - If a class action could address some of the harms suffered by class members, then it might be a preferable procedure - Considering the substantial deference that was owed to the motions judge respecting the determination of the preferable procedure to resolve class members' claim, there was no ground to intervene on this aspect of the decision - See paragraphs 66 to 70.

Practice - Topic 209.4

Persons who can sue and be sued - Class actions - Certification - Appointment or replacement of representative plaintiff - The plaintiffs, using pseudonyms, sued Her Majesty the Queen (the Crown), asserting that Health Canada identified them as participants in the Marihuana Medical Access Program by sending letters in oversized envelopes through the mail system with the return address "Marihuana Medical Access Program" - The plaintiffs obtained an order certifying the action as a class action on the condition that they identify at least one public class representative - On cross-appeal, the plaintiffs asserted that the motions judge erred in requiring that at least one public class representative be identified - They asserted that the requirement would only exacerbate the harms that the proceeding was intended to remedy - Alternatively, they asserted that steps could be taken to preserve the anonymity of the plaintiffs while ensuring that they were able to carry out their duties as representative plaintiffs - The Federal Court of Appeal dismissed the cross-appeal - The anonymity of class representatives was at odds with their responsibilities - Additionally, there was no evidence that there was nobody willing to identify himself or herself publicly as a representative of the class - See paragraphs 74 to 78.

Practice - Topic 209.7

Persons who can sue and be sued - Class actions - Certification - Evidence and proof - [See Contracts - Topic 1103 and second and fourth Practice - Topic 209.3 ].

Practice - Topic 209.7

Persons who can sue and be sued - Class actions - Certification - Evidence and proof - The plaintiffs sued Her Majesty the Queen (the Crown), asserting that Health Canada identified them as participants in the Marihuana Medical Access Program by sending letters in oversized envelopes through the mail system with the return address "Marihuana Medical Access Program" - The plaintiffs obtained an order certifying the action as a class action - The Crown appealed, asserting that the motions judge erred in finding that the test for the tort of intrusion upon seclusion was met on the facts as pleaded - The Federal Court of Appeal held that the motions judge erred in not dismissing the cause of action - The plaintiffs had not pleaded any material facts in support of the necessary elements of the claim - At best, the material facts pleaded supported the notion that an isolated administrative error was made - There were no material facts pleaded to support an allegation of bad faith or recklessness - It was plain and obvious that the cause of action could not succeed - See paragraphs 57 to 60.

Practice - Topic 209.9

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

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals - The defendant appealed an order certifying the plaintiff's action as a class action - The Federal Court of Appeal stated that "It is no doubt true that courts across the country have recognized in a number of cases that the unique nature of certification orders calls for substantial deference ... such deference is warranted by the special expertise developed by motions judges on certification motions and the necessity of weighing a number of factors when assessing the certification criteria ... Accordingly, the assessment of the last four certification criteria (i.e., whether there was some basis in fact to conclude that the claim has identified a proper class, raises sufficient common questions, is a preferable procedure and is represented by an adequate class representative) will be entitled to substantial deference as they raise questions of mixed fact and law involving an appreciation of the evidence on the motion and a certain field-sensitivity in trial management ... The assessment of the first certification criterion - whether the claim discloses a reasonable cause of action - raises an entirely different type of question. As previously mentioned, the analysis of this criterion excludes the appreciation of evidence and involves essentially legal reasoning, that is, whether the applicable legal criteria to make out a certain claim have been met. The same will be true when determining whether the motions judge applied the proper test for the cause of action requirement. These are questions of law that must be reviewed on a standard of correctness." - See paragraphs 28 to 30.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - The plaintiffs sued Her Majesty the Queen (the Crown), asserting that Health Canada identified them as participants in the Marihuana Medical Access Program by sending letters in oversized envelopes through the mail system with the return address "Marihuana Medical Access Program" - The plaintiffs obtained an order certifying the action as a class action and awarding costs against the Crown - The Crown appealed, asserting that the motions judge erred in awarding costs - The Federal Court of Appeal agreed, stating that "There was no evidence before the motions judge (nor before this Court) tending to establish that the Crown unnecessarily lengthened the proceedings or took any improper steps, and nothing to suggest that any exceptional circumstances justified an award of costs to the respondents. Moreover, the motions judge gave no reasons for this exceptional award of costs and the only plausible explanation for such an award appears to be that he failed to turn his mind to Rule 334.39. ... In my view, the motions judge made an error of law in awarding costs in this manner, without making any of the factual findings required to support an exceptional award of costs under Rule 334.39. I would therefore allow the appeal on this point and order no costs throughout." - See paragraphs 71 to 73.

Torts - Topic 5402

Invasion of privacy (intrusion upon seclusion) - General - Pleadings - [See fourth Practice - Topic 209.3 and second Practice - Topic 209.7 ].

Torts - Topic 5501

Invasion of privacy (intrusion upon seclusion) - Unwanted publicity - General - [See fourth Practice - Topic 209.3 ].

Counsel:

Catharine Moore and Paul Vickery, for the appellant;

Ward Branch, David Fraser and Theodore Charney, for the respondents.

Solicitors of Record:

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

Branch MacMaster LLP, Vancouver, British Columbia, Sutts, Strosberg LLP, Windsor, Ontario, McInnes Cooper, Halifax, Nova Scotia and Charney Lawyers, Toronto, Ontario, for the respondents.

This appeal and cross-appeal were heard at Ottawa, Ontario, on April 5, 2016, by Ryer, Boivin and de Montigny, of the Federal Court of Appeal. de Montigny, J.A., delivered the following reasons for judgment for the court on June 24, 2016.