Canadian courts have generally adopted a liberal and purposive approach to class action certification, and this approach has applied equally to the relatively new breed of class actions founded in privacy torts, see for example, Condon v Canada. However, in the recent decision of Canada v John Doe, the Federal Court of Appeal de-certified two causes of action based in privacy torts, narrowing its approach to the material facts required to meet the standard of proof in determining whether the pleadings disclose a reasonable cause of action.

In John Doe, Health Canada sent oversized envelopes marked “Marihuana Medical Access Program” through Canada Post to approximately 40,000 individuals registered in the program. The plaintiffs alleged that by identifying on the envelopes the participants’ names together with the name of the program, Health Canada breached their privacy and exposed them to security concerns. The Federal Court certified all six causes of action: breach of contract and warranty; negligence; breach of confidence; intrusion upon seclusion; publicity given to private life; and breach of the Charter right to privacy. Justice Phelan held that certification was appropriate, subject to the plaintiffs amending their Statement of Claim by identifying a class representative. It was not plain and obvious that the plaintiffs’ causes of action would fail. Further, the Federal Court was satisfied that the Privacy Commissioner’s Report, which concluded that Health Canada had violated the Privacy Act, was sufficient to establish a reasonable cause of action.

The Test for a Reasonable Cause of Action

On certification, as a threshold matter, the plaintiff must establish that the pleadings disclose a reasonable cause of action, the test being:

“whether it is ‘plain and obvious’ that the pleadings, assuming the facts pleaded to be true, disclose no reasonable cause of action”

The Federal Court of Appeal held in John Doe that the certification judge erred in applying a somewhat lower standard, namely the “some basis in fact” test as opposed to the required “reasonable prospect of success” threshold in determining whether the plaintiffs had established a reasonable cause of action. In addition, the Court found that there were no material facts to support the causes of action other than a breach of confidence and negligence.

With regards to the privacy causes of action, that is, intrusion upon seclusion and publicity given to private life, the Federal Court of Appeal did not accept that the plaintiffs met the required standard of proof. For the plaintiffs’ claim of the tort of intrusion upon seclusion, the Court held that the plaintiffs did not plead “any material facts” to fulfill the necessary elements of such a claim. Further, the Court held that “at best, the material facts pleaded support the notion that an isolated administrative error was made”.

Free-Standing Tort in Publicity Given to Private Life?

As we discussed in our post on the certification decision, the Federal Court in this case had certified a claim based on “publicity given to private life”, that is, publication of private information. The only material facts relied on by the plaintiffs supported disclosure of the plaintiffs’ personal information to Canada Post (whose employees have confidentiality obligations), to other people who did not have confidentiality obligations such as family, and to people to whom the mail was misdirected.

Drawing on the criteria to establish the tort of public disclosure of embarrassing private facts in American jurisprudence, the Federal Court of Appeal denied the certification of that claim in that the material facts pleaded by the plaintiffs were “far from sufficient” to demonstrate that the private information was communicated to the “public at large”. Rather, the facts pleaded had established that the plaintiffs’ personal information was only disclosed to a small group of persons.

This case lends reassurance to the privacy defence bar that not all claims framed around intrusion upon seclusion will be certified, and further clarifies the narrower set of facts that may be required to establish the tort of “publicity given to private life” in Canada.