Molly Reynolds writes:
In 2015, the Federal Court certified a class action against the Federal Government after envelopes sent to participants in the Marihuana Medical Access Program disclosed the name of the program. The Federal Court permitted claims that this incident exposed participants’ personal information (i.e., participation in the program) to proceed on the basis of the torts of intrusion upon seclusion and publicity given to private life, as well as breach of contract, negligence and breach of confidence.
In a recent ruling, the Federal Court of Appeal (FCA) overturned the certification of all claims except negligence and breach of confidence. Importantly, the FCA held that the plaintiff had not pleaded facts sufficient to support the intrusion upon seclusion and publicity given to private life torts that were only recently imported from American jurisprudence into the common law of some provinces. Although based on procedural requirements for pleadings, the Court’s decision may restrain the scope or number of privacy class actions in the future.
Where privacy breaches result from administrative errors such as the all-too-common incident of misdirected mailings of invoices or account statements, the FCA’s decision supports the view that corporate defendants should not be drawn into lengthy and expensive privacy tort litigation unless plaintiffs present facts from the outset that support all the elements of these claims for invasion of privacy.
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