M.M. v. Lanark, Leeds and Grenville Children’s Aid Society, 2017 ONSC 7665

CITATION: M.M. v. Lanark, Leeds and Grenville Children’s Aid Society, 2017 ONSC 7665

COURT FILE NO.: CV-16-557244CP

DATE: 20171221

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

M.M.

Plaintiff

– and –

FAMILY AND CHILDREN’S SERVICES OF LANARK, LEEDS AND GRENVILLE, also known as the CHILDREN’S AID SOCIETY OF LANARK, LEEDS AND GRENVILLE, RAYMOND LEMAY, EXECUTIVE DIRECTOR FOR FAMILY AND CHILDREN’S SERVICES OF LANARK, LEEDS AND GRENVILLE, THE HONOURABLE TRACY MACCHARLES IN HER CAPACITY AS MINISTER OF CHILDREN AND YOUTH SERVICES, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, KELLEY DENHAM, AND JANE DOE

Defendants

Sean A. Brown, Candace Mak, and Todd McCarthy for the Plaintiff

Sarah Armstrong and Alex Cameron for the Defendant Family and Children’s Services of Lanark, Leeds and Grenville

Kelley Denham, self-represented

HEARD: December 21, 2017

PERELL, J.

REASONS FOR DECISION

[1] Pursuant to the Class Proceedings Act, 1992,[^1] M.M. sues Family and Children’s Services of Lanark, Leeds and Grenville (“FCSLLG” or “the Society”), Raymond Lemay, Tracy MacCharles in her capacity as the Minister of Children and Youth Services, Her Majesty the Queen in Right of Ontario and Kelley Denham. M.M. moves for certification of her action as a class action. The Defendants consent or do not oppose certification.

[2] The factual and procedural background is that FCSLLG is a children’s aid society, regulated by the Ministry of Children and Youth Services of the Ontario government.

[3] In April 2015, M.M., who is the mother of an infant, and her partner were investigated by FCSLLG and the Society’s file was closed without any action being taken.

[4] On April 18, 2016, the Society became aware that a third party had posted links to a private and confidential Society document on the Smiths Falls’ Swapshop Facebook page, which has 11,000 members, and on the Facebook page for “Families United.” The document contained confidential information about Society cases including information about referrals to the Society and child safety assessments.

[5] On April 19, 2016, M.M. became aware of the privacy breach at FCSLLG, and she learned that her personal information, as well as that of at least 284 other individuals who were investigated by FCSLLG from April through November of 2015, was contained in an electronic file forming part of a confidential statistical report prepared for FCSLLG’s Board of Directors. The disclosure caused M.M. distress, anxiety, humiliation, and fear that she and her partner would be falsely branded as child abusers.

[6] M.M. subsequently learned that the defendant Kelley Denham posted to Facebook a JPEG image of a hyperlink to the unsecured FCSLLG website.

[7] Later in April of 2016, M.M. retained Flaherty McCarthy LLP to commence a proposed class proceeding against FCSLLG. M.M.’s Statement of Claim advances causes of action for negligence, the tort of intrusion upon seclusion, and breach of s. 7 of the Canadian Charter of Rights and Freedoms.

[8] On May 30, 2016, M.M. received a letter from FCSLLG which stated:

Re: Personal Information Advisory

We are writing to provide you with an update about the incident involving your personal information. We deeply regret that this incident occurred, and want to assure you that we are continuing to treat this matter very seriously.

What Happened

As we explained in our telephone conversation, we became aware on April 18, 2016 that a confidential Family and Children’s Services of Lanark, Leeds and Grenville (FCSLLG) document containing your name and certain other information was accessed without authorization by a third party, and a hyperlink to that document was made publicly available on the Internet.

This document was created by the FCSLLG for internal purposes to help us track case assignments. The document contained:

• Your first and last name (but not your child(ren)'s name(s));

• An indication that you have at least one child under the age of 5;

• The date your family was referred to the FCSLLG;

• A standardized, three-digit code that categorizes your family's involvement with the FCSLLG;

• The name and location of the FCSLLG case worker assigned to your family, and date of assignment;

• The date a safety assessment of your family was required under the Child Protection Standards in Ontario; and

• The date that a safety assessment was completed with your family.

Our Response to the Incident

As soon as FCSLLG became aware of this incident, we took the following steps:

We immediately shut down the FCSLLG website, and disabled the hyperlink to the FCSLLG document;

We immediately contacted the police, and we are continuing to cooperate with their ongoing criminal investigation into the unauthorized third-party access;

We immediately advised the Ministry of Children and Youth Services about the incident;

We commenced a thorough investigation of the incident, including to determine the unauthorized individual who accessed and posted the hyperlink to the FCSLLG document;

We engaged third party information security experts to assist us in our continuing investigation, and to implement steps designed to help prevent this type of incident from happening again;

We issued two media statements to inform the public about the incident; and

We made efforts to notify all affected families.

In addition, while we are not subject to the oversight of the Office of the Information and Privacy Commissions of Ontario (IPC), we notified the IPC about this incident and sought their guidance.

Again, we sincerely regret that this incident occurred. The privacy of our clients’ personal information is extremely important to everyone at FCSLLG. If you have any further questions or concerns about this incident, we can be reached at the contact information below.

[9] On June 16, 2017, Justice Belobaba granted M.M.’s motion to add Ms. Denham as a defendant to the action.

[10] Ms. Denham subsequently deposed that she obtained the investigation report from the FCSLLG public website by deleting part of a URL address in her browser’s address bar. She deposed that once she found that the site contained confidential documentation, she took steps to bring this to the attention of FCSLLG, the press, and the government.

[11] Pursuant to s. 5(1) of the Class Proceedings Act, 1992, the court shall certify a proceeding as a class proceeding if: (1) the pleadings disclose a cause of action; (2) there is an identifiable class; (3) the claims or defences of the class members raise common issues of fact or law; (4) a class proceeding would be the preferable procedure; and (5) there is a representative plaintiff or defendant who would adequately represent the interests of the class without conflict of interest and there is a workable litigation plan.

[12] I am satisfied that M.M.’s pleadings disclose a cause of action. The tort of intrusion upon seclusion as a cause of action has been certified in several class actions.[^2]

[13] The Plaintiff and putative class members propose two classes defined as:

1. The 284 persons (including their estates or personal representatives) other than Kelley Denham, identified by name in a confidential Family and Children's Services of Lanark, Leeds and Grenville (“FCSLLG”) document (“the Document”) (the “Identified Class”); or

2. For the period of April 1, 2015 to April 18, 2016, (a) the children, step-children, spouse or common law partner of the Identified Class Member and (b) all persons who otherwise stood in loco parentis to the children or step-children of the Identified Class Member ("the Identifiable Class").

[14] M.M. proposes the following common issues:

1. As against Family and Children's Services of Lanark, Leeds and Grenville (“FCSLLG”) only:

(A) Regarding the Claim in Negligence:

1. Did the defendant owe a duty of care to the Class Members?

2. Did the defendant breach the duty of care owed to the Class Members?

(B) Regarding the alleged Intrusion upon Seclusion:

1. Did the defendant’s action, failure, or omission to adequately collect, store and safeguard the personal and confidential information provided by Class Members constitute recklessness?

2. If the answer to 1 is YES, did this result in the invasion of the Class Members’ private affairs or concerns without lawful justification?

3. If the answer to 2 is YES, would a reasonable person regard the invasion as highly offensive causing distress, humiliation or anguish?

(C) Regarding the alleged breach of Section 7 of the Canadian Charter of Rights and Freedoms:

1. Is the Defendant an agent of the Province of Ontario and, therefore, governed by the Canadian Charter of Rights and Freedoms pursuant to section 32(1)(b) of the Charter?

2. If the answer to 1 is YES, did the defendant fail to adequately collect, store and safeguard the personal and confidential information of the Class Members?

3. If the answer to 2 is YES, did the defendant’s failures violate the Class Members’ liberty and/or security of the person?

4. If the answer to 3 is YES, was that deprivation not in accordance with the principles of fundamental justice?

(D) Regarding the claim for damages:

1. Can damages be determined for the Class Members on an aggregate basis for any or all of the causes of action?

2. If so, what is the quantum of those damages?

(E) Are the Class Members entitled to punitive, aggravated and/or exemplary damages? If so, in what amount? How will the award be distributed among Class Members?

(F) Should the defendant ordered to pay pre-judgment interest? If so, at what annual rate? How is the pre-judgment rate to be calculated?

(G) Should the defendant pay the cost of administering and distributing any recovery, including the cost of giving notice of certification? If so, in what amount?

(2) As against Kelley Denham only:

(A) Regarding the alleged Intrusion upon Seclusion:

1. Did the defendant’s action of posting to Facebook a JPEG image of a hyperlink to the unsecured FCSLLG website constitute an intentional intrusion upon the seclusion of the plaintiff and putative class members?

2. If the answer to 1 is YES, did this result in the invasion of the Class Members’ private affairs or concerns without lawful justification?

3. If the answer to 2 is YES, would a reasonable person regard the invasion as highly offensive causing distress, humiliation or anguish?

4. If the answer to 3 is YES, are the plaintiff and putative class members entitled to damages of $1.00?

[15] In the present case, I am satisfied that all of the criteria for certification have been satisfied and that the incidental relief should be granted.

[16] Accordingly, I grant M.M.’s motion.

Perell, J.

Released: December 21, 2017

CITATION: M.M. v. Lanark, Leeds and Grenville Children’s Aid Society, 2017 ONSC 7665

COURT FILE NO.: CV-16-557244CP

DATE: 20171221

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

M.M.

Plaintiff

– and –

FAMILY AND CHILDREN’S SERVICES OF LANARK, LEEDS AND GRENVILLE, also known as the CHILDREN’S AID SOCIETY OF LANARK, LEEDS AND GRENVILLE, RAYMOND LEMAY, EXECUTIVE DIRECTOR FOR FAMILY AND CHILDREN’S SERVICES OF LANARK, LEEDS AND GRENVILLE, THE HONOURABLE TRACY MACCHARLES IN HER CAPACITY AS MINISTER OF CHILDREN AND YOUTH SERVICES, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, KELLEY DENHAM, AND JANE DOE

Defendants

REASONS FOR DECISION

PERELL J.

Released: December 21, 2017

[^1]: S.O. 1992, c. 6.

[^2]: See Bennett v. Lenovo (Canada) Inc., 2017 ONSC 5853; Daniells v. McLellan, 2017 ONSC 3466; Drew v. Walmart Canada Inc., 2016 ONSC 8067; Evans v. Bank of Nova Scotia, 2014 ONSC 2135.