Federal Court


Prothonotary’s confidentiality order upheld on appeal


Prothonotary’s confidentiality order upheld on appeal

Motion for confidentiality order was brought in context of proposed class proceeding. Pleadings alleged that in November 2013, correspondence was mailed by Health Canada to class in envelope that displayed return address identifying Health Canada's Marihuana Medical Access Program. Claim alleged that the inclusion and display of that return address constituted breach of contract, negligence, breach of confidence and privacy as well as infringement of Canadian Charter of Rights and Freedoms. Approximately 40,000 individuals were said to have received that correspondence. In consequence, class actions were commenced in several jurisdictions. Actions had not reached certification stage. Prothonotary granted confidentiality order on basis that identifying plaintiffs personally disclosed their personal health and medical information, and their treatment program as prescribed by their medical doctor. It also went to central issue in case of whether plaintiffs' identity and personal information was private and should be kept confidential. Defendant appealed. Appeal dismissed. There was serious risk to plaintiffs’ privacy and personal safety. While prothonotary erred in considering injury to employment in her assessment of serious risk, it was not determinative to her decision. Unique facts in case, in which underlying dispute related to breach of privacy, provided sufficient basis of support for prothonotary's findings given standard of review. Whatever reservations there may be about anonymous representative plaintiffs in class action, that issue was best determined on full record and jurisprudence relevant to obligations of representative plaintiffs. 
John Doe v. R. (Jul. 24, 2014, F.C., Donald J. Rennie J., File No. T-1931-13) 256 A.C.W.S. (3d) 329.


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