Federal Appeal

Civil Procedure

Class actions
Judge ordered there must be at least one publicly identified class representative

Federal government department, HC, sent plaintiffs and other participants in Marijuana Medical Access Program information in envelope marked, “Marijuana Medical Access Program.” Two anonymous plaintiffs brought action against HC alleging breach of contract, negligence, breach of confidence, intrusion on seclusion, publicity to private life, and breach of right to privacy under ss. 7 and 8 of Canadian Charter of Rights and Freedoms. Plaintiffs brought motion for order certifying action as class proceeding on behalf of all participants who received envelopes. Motion judge granted certification, subject to amendment of Charter-based claim and naming of at least one, publicly-identified class representative, holding that plaintiffs had pleaded more than sufficiently to raise matter of bad faith and malice, that class was not overly broad, that common issues would move litigation forward, and that class action was preferable procedure. HC appealed; plaintiffs cross-appealed. Appeal allowed in part; certification order confirmed with respect to negligence and breach of confidence only; all other causes of action dismissed; cross-appeal dismissed. Motions judge made no palpable and overriding error in ordering that there be at least one named plaintiff in addition to anonymous ones. Anonymity of class representatives was at odds with their responsibilities to represent class members’ interests under R. 334.16(1)(e)(i) of Federal Courts Rules (Can.). Ability to communicate with representative plaintiffs was crucial to class members’ ability to decide whether or not to opt out and to decide whether representative plaintiffs were suitable. There was no evidence that there was nobody willing to identify himself or herself publicly as representative of class; several class members appeared in media self-identifying as medical marihuana users and/or producers.

R. v. John Doe (June 24, 2016, F.C.A., C. Michael Ryer J.A., Richard Boivin J.A., and Yves de Montigny J.A., A-343-15) Decision at 257 A.C.W.S. (3d) 528 was reversed. 268 A.C.W.S. (3d) 753.

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