Pubdate: Thu, 11 Jun 2015
Source: Chronicle Herald (CN NS)
Copyright: 2015 The Halifax Herald Limited
Author: Clare Mellor


Lawyers representing plaintiffs in a proposed class action, claiming 
Health Canada breached privacy rights and jeopardized the safety of 
medical marijuana users, will be seeking damages of up to $20,000 per 
person, a court in Halifax heard Wednesday.

Federal Court Justice Michael Phelan is hearing a certification 
application for a proposed class action, put forward by medical 
marijuana users and growers across Canada, who were licensed under 
the previous federal medicinal marijuana program.

The claim alleges that in November 2013 the department sent letters 
to about 40,000 people explaining changes to the federal medical 
marijuana access program, and because the return address on the 
envelopes clearly stated they came from the Health Canada medical 
marijuana program anyone who may have seem them knew the recipient 
was either licensed to possess or grow marijuana for medical purposes.

The claim alleges that Health Canada was reckless, careless and 
negligent in sending the mail-out, which breached confidentiality and 
the personal security of medical marijuana program users.

The allegations have not been proven in court and Health Canada has 
not yet filed a defence.

The lead plaintiffs, a Nova Scotia man and an Ontario woman, are 
identified by the pseudonyms John Doe and Suzie Jones because a 
confidentiality order protects their identities.

In court Thursday, Ted Charney, one of several lawyers representing 
the plaintiffs, read aloud copies of Health Canada emails, which he 
said indicate the federal department's use of the over-sized, 
non-discreet, envelopes in the mail-out, was not a simple clerical 
error. Instead, they indicate the decision received approval at "the 
director level" within the federal department, he said.

The emails show a Health Canada staffer first asked a Canada Post 
employee for a quote for the cost of sending the envelopes by 
registered mail, however, it was decided not to send them that way, 
said Charney, of Charney Lawyers in Toronto.

Health Canada sent its own envelopes to Canada Post to be used for 
the mail-out but they were damaged when they arrived there. An email 
from a Health Canada staffer to a Canada Post employee refers to a 
time pressure to get the mail-out done and in a subsequent email, the 
staffer, whose name is redacted from the emails, gives Canada Post 
the go-ahead to use the envelopes for the mail-out.

About 1,800 people have registered with the proposed class action. 
Two hundred and forty one of those have reported a home invasion or 
security breach since the mail-out and 341 have reported they have 
changed residences because of the mail-out, Charney said

One of the lead plaintiffs is a health professional in a small 
community in Nova Scotia. Following the mail-out, he believed that 
people in the community were aware he was licensed to use medicinal 
marijuana. He feared a home invasion and suffered anxiety and stress 
about possible career repercussions, Charney said.

McInnes Cooper in Halifax and three other law firms, one in British 
Columbia and two in Ontario are jointly representing affected users.

If the case moves forward, lawyers will argue that there was a breach 
of security of person under the Canadian Charter of Rights and 
Freedoms, David Fraser, of McInnes Cooper told the court.

"It will be alleged and argued ... that Health Canada knew about the 
risks that would be presented by disclosing this information."

The Office of the Privacy Commissioner of Canada received more than 
300 complaints about the mail-out, with recipients citing concerns 
such as job loss and damage to their reputations and safety. The 
commissioner's office investigated and, in March, released a finding 
that Health Canada violated the federal Privacy Act and mishandled 
personal information.

Phelan has not yet decided whether the commissioner's report or parts 
of it, can be used in the certification application.

Lawyers for Health Canada are expected to argue against the class 
action certification in court on Friday.
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