The Federal Court of Canada has certified a class action lawsuit against the country's health ministry, years after it mailed 41,514 letters that outed users of a government medical marijuana program, allegedly violating their privacy rights.
The plaintiffs say they have suffered damage to their reputation, employment prospects, and mental health after Health Canada mailed the missives. Many claimed they were victims of home invasions after it became known that they possessed marijuana.
Ironically, the letters, mailed in November, 2013, were sent to inform clients of program changes enacted, in part, due to "the risks of violent home invasion." Clear plastic film revealed the full name of recipients along with the words "Marihuana Medical Access Program," contrary to earlier mailings, which included a generic return address.
The deputy minister of health said the privacy breach was "not standard Health Canada practice" and apologized for what he called "an administrative error," though emails submitted in court later showed that the department was aware of the issue and went ahead anyway in the interests of "expediency."
Health Canada's lawyers later argued that marijuana users should have known their information would come out and were partly to blame, since some went to the media.
A week after the letters arrived, lawyers filed a class action lawsuit claiming damages for breach of contract, breach of confidence, negligence, and invasion of privacy, and set up a database to collect confidential testimony from victims.
"It was clear to me, as soon as my phone started ringing in November 2013, that there was no justification for the careless error made by Health Canada in this case," lawyer David Fraser said in a press release published by McInnes Cooper, one of the law firms representing the plaintiffs. "It's one thing to acknowledge making a mistake, which Health Canada did, but immediately turning around to blame the victims is repulsive."
The Federal Court's order for certification, made this week, required a finding that the complaints had "some basis in fact," that the cases were sufficiently similar and that trying them together would serve the "efficiency of justice." The government has 30 days to appeal the order.
Over 1,500 people reported to the database that someone had discovered they were in the program because of the letters. About 1,000 said that discovery had an impact on their reputation, with 391 saying that they moved or attempted to move, 297 that their employment had been affected, and 241 that they had been the victims of a home invasion or security breach.
Many said neighbors had seen the oversized envelopes in common areas, or even in their own mailboxes, after they'd been misplaced. Others were worried about rumors passed by postal workers. One of the anonymous reports, submitted in court, explained how quickly the news spread around town:
"Postal service people in a small community talk and have clearly known negative views on marijuana use," the report read. "I was very shamed by public knowledge of my personal medical usage and suffered an attempted break-in with window frame damage, within a few days of receiving the mail out."
"We are afraid of being robbed or home invaded and are afraid of being evicted from our rental home," another report stated. "My daughter is being teased by other teens calling her mother a pothead and this further adds to my fear of robbery."
Lawyer Ted Charney, part of the legal team leading the class action, told VICE News that he has evidence that home invasions have taken place, beyond the anonymous reports, though he was unable to speak about specific cases.
Other complainants focused on damage to their livelihoods.
"Yes my employment has been impacted," one said. "I have been told by a previous customer that he will no longer use my services due to the fact that he is now aware of my medical marijuana use."
The privacy commissioner of Canada has already determined, this March, that Health Canada was in contravention of the Privacy Act and the complaints of the medical marijuana users were "well-founded." But the commissioner is unable to award financial restitution for damages.
Now that the certification is granted, the legal team will be able to seek compensation for everyone who received the letter.
According to Charney, legal precedent allows the plaintiffs to seek up to $20,000 per complainant for the intrusion. Those subject to job loss or home invasion may be able to seek additional damages, he told VICE News.
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