Commissaire à la protection
de la vie privée du Canada

Privacy Commissioner
of Canada

Report of Findings
File

Complaint under the Privacy Act

Summary of Complaint
1. This Report of Findings relates to a Commissioner-initiated complaint under
the Privacy Act (the Act) against Health Canada (HC). It relates to the mailing
of 41,514 letters using windowed envelopes to "Marihuana Medical Access
Program" (MMAP) clients that allowed the name of the program to be openly
visible.

Background
2. On November 21st, 2013, HC posted a notice on its website from the Deputy
Minister stating that the department had "recently sent approximately 40,000
informational letters to individuals with an interest in upcoming changes to the
Marihuana Medical Access Program." It further stated that, "as a result of an
administrative error the envelopes were labelled to indicate that they were
sent by the Program. This is not standard Health Canada practice."
3. The Office of the Privacy Commissioner of Canada (OPC) determined that
there were reasonable grounds for a Commissioner-initiated complaint
against the department.
4. Accordingly, the OPC initiated a complaint against HC on December 5th,
2013, pursuant to subsection 29(3) of the Act.
5. The OPC's investigation focused on whether HC contravened the disclosure
provisions of the Act when it included the name of the MMAP in the return
address which was clearly visible through the windowed envelopes.
6. The OPC also received 339 complaints against HC from individuals who
received the mail-out. lnstead of investigating each complaint separately, the
Commissioner-initiated process served as the representative complaint
investigation by the OPC. As such, the results of the Commissioner-initiated
complaint are being shared with the 339 complainants.

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7. Since 2001, HC has granted Canadians access to marihuana for medical
purposes provided they have the support of their physicians. Once approved
under the Marihuana Medical Access Regulations (MMAR), individuals had
three options for obtaining a legal supply of dried marihuana. They could:
a) apply under the MMAR to access HC's supply of dried marihuana;
b) apply for a personal-use production licence; or
c) designate someone to cultivate on their behalf with a designatedperson production licence.
8. In response to concerns from stakeholders that the program was open to
abuse, the Government of Canada repealed the MMAR on March 31st, 2014,
and introduced the new Marihuana for Medical Purposes Regulations
(MMPR). HC stated that these new regulations aimed at treating marihuana,
as much as possible, like any other narcotic used for medical purposes by
creating conditions for a new commercial industry that would be responsible
for its production and distribution. Consequently, under the MMPR, the only
way to access marihuana for medical purposes is through commercial
licensed producers.
9. Following these changes, a letter and a "Questions and Answers" document
were drafted by HC to communicate information about the upcoming
transition to clients.

Summary of Facts
10.0n July 18th, 2013 HC and Canada Post Corporation (CPC) entered into a
Memorandum of Agreement (MOA) setting out the framework that would
allow CPC to handle the mail-out of HC information packages to all clients of
the MMAP.

11. The investigation revealed that on October 24th, 2013, HC provided preprinted envelopes to CPC with return addresses that did not include the
program name and postal indicia'. HC submitted that it was notified by CPC
Postal indicia are markings on an envelope showing that postage has been prepaid by the sender.

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on October 30th, 2013, that the envelopes it had provided were not compatible
with CPC's machine for mass mail-outs.
12. Because HC wished to send these informational letters out as soon as
possible, CPC recommended that it use generic, oversized windowed
envelopes. These envelopes would allow the letter to be folded in such a way
that both the mailing address and return address would be visible through the
window. This eliminated the extra step of having to print the addresses
directly on the envelopes, or on labels that would then have to be affixed to
each envelope. HC has no specific policies regarding return addresses and
thus agreed with CPC's recommendation in the interest of expediency. HC
provided the full program name and address in both English and French to
CPC, which printed off the package as directed.
13.0n November 19th, 2013, a total of 41,514 letters were sent to MMAP clients
with the full program name openly visible through the windowed envelopes.
14.The OPC received 339 complaints from MMAP clients who received the mailout and were concerned that the full name of the program was legible through
the envelope.

Summary of Complainants' Concerns
15.The complainants alleged that HC failed to protect their privacy by including
the name of the MMAP in a clearly visible manner on the mail-out packages,
thereby revealing their personal information (i.e. their identity and involvement
with the MMAP) to CPC employees and members of the public.
16.The complainants cited several concerns relating to the impact of HC's
actions on their personal lives. In particular:
a) Career and financial position: Some individuals raised concerns that
they could lose their jobs if their employers learned of their usage of
medical marihuana.
b) Reputation: The use of marihuana, even for medical purposes, carries
a social stigma due to its status as a prohibited substance. Some
complainants alleged that they received comments from people about
their association with the program as a result of the HC mail-out.

ter
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c) Safety As mentioned in HC's letter to its clients regarding the program,
"The current practice of allowing individuals to grow marijuana for
medical purposes poses risks to the safety and security of Canadians.
The high value of marijuana on the illegal market increases the risks of
violent home invasion and diversion to the black market." Disclosure of
the fact that a person is associated with the program thus increases
the above-mentioned risks to these individuals and this statement
demonstrates that HO recognizes these risks.
d) Health or well-being: The purpose of the program is to offer medication
to individuals who have serious medical conditions. Many of the
complainants in this case alleged that their health was adversely
affected due to stress following the disclosure.

Summary of Health Canada's arguments
17. HC made four main arguments explaining why the inclusion of the name of
the program, the MMAP, in its return address does not constitute a violation
of the Act. Each of HC's arguments is summarized below, while the OPC's
analysis with respect to each of these arguments can be found further in this
report.
I.

MMAP clients shared details of the incident with media, thus
contributing to the public attention they received. In fact, they disclosed
their affiliation with the MMAP themselves. What was made public
about the individuals who received the envelopes is not a disclosure by
HC.

Il.

If there has been a disclosure of personal information, mail recipients
implicitly consented to the disclosure to CPC (in the context of regular
mail), and to other individuals, including individuals living at the same
address or individuals who pick up mail for the recipient. Therefore, the
disclosure was authorized under section 8(1) of the Act.

III.

If there has been a disclosure of personal information, the disclosure
was authorized under section 8(2)(a) of the Act, as it was a "consistent
use." It is reasonable for an individual to expect that the information
would be disclosed for the purposes of corresponding with the
individual via mail.

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IV. While HC acknowledged that inclusion of "Marihuana Medical Access
Program" in the return address was the result of an administrative
error, it states that this was within the realm of reasonable and lawful
options that it could have chosen. Furthermore, HC states that limiting
the amount of information in the return address block could have broad
implications on how government institutions communicate with
individuals by mail.

Methodology
18.The OPC examined the circumstances surrounding the incident, as well as
the MOA between HC and CPC. To this end, we reviewed the
representations received from HC in relation to the incident. Our investigation
also included the review of procedures, guidelines, and e-mail exchanges
between HC and CPC. Further, we met and discussed the incident with
departmental officiais.

Application of the Act
19. In making our determination, we considered sections 3 and 8 of the Act.
20.Section 3 of the Act defines personal information as information about an
identifiable individual that is recorded in any form, including information
relating to race, national or ethnic origin, colour, religion, age, marital status,
education, medical, criminal or employment history, financial transactions,
identifying numbers, fingerprints, blood type, personal opinions, etc.
21.The Act states that personal information can only be disclosed with an
individual's consent — as per section 8(1) — or in accordance with one of the
categories of permitted disclosures outlined in section 8(2).
22. Section 8(2)(a) of the Act provides that personal information may be disclosed
by a government institution without consent for the purposes for which the
information was obtained, compiled by the institution, or for a use consistent
with that purpose.

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Analysis
23. For the purposes of fulfilling its mandate to operate a postal service, CPC
outlines the general requirements under which items may be transmitted by
post. CPC recommends providing a return address as it gives the recipient a
way to determine how to respond to the sender of the message, if needed.
White the return address does not have to include a sender's name, it should
include an address or P.O. Box in the same format as the delivery address.
24.The issue in this case relates to how the return address is structured and
mailed by CPC on behalf of HC. The return address includes the full name of
the program — the MMAP — and can be read in conjunction with the client's
name and address.
25.We are of the view that the phrase "Marihuana Medical Access Program,"
along with an individual's name and address, constitutes the personal
information of the addressee as defined by section 3 of the Act. The reference
to the MMAP in the return address reveals information about an identifiable
individual, namely the addressee. Whether the inference is drawn that an
individual is enrolled in the program, or merely expressing an interest in it,
including the name of the program in the return address associates a clearly
identifiable individual to the MMAP — a program that, simply by its title,
explicitly refers to marihuana access.

HC Argument # I: "Significant media coverage revealed that the letters were sent
to MMAP clients"
26. HC argues that it was the significant media coverage that revealed that the
letters were sent to clients of the MMAP, and that at no time before or after
the mail-out did HC publicly state that the mail recipients were clients of the
MMAP.
27. HC states that it does not dispute the fact that an individual's name and
address combined with the name of the program, MMAP, in the return
address is personal information. However, it submits that it was the recipients
of the letters themselves who drew public attention to their involvement with
the program.
28. HC maintains that identifying the name of the program in the return address
could have simply indicated an interest in the program — i.e. general

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information requests for research purposes, communication to respond to a
previous consultation, or a response to an employment application.
29.To this end, HC asserts that what has been made public about the individuals
who received a letter in this case is not an unlawful disclosure of personal
information by HC.

OPC Analysis
30. HC, as an institution subject to the Act, has a legislative duty to protect the
fundamental privacy rights of individuals by limiting the collection, use and
disclosure of their personal information.
31. Consequently, HC is required to protect the information collected for the
administration of its programs, which includes protecting the fact that an
individual is involved with, has applied for, or expressed interest in a particular
program or service. In this case, the fact that the complainants are associated
with the MMAP, should have been protected. The very name of the program
raises the level of sensitivity of the information, and should only be disclosed
with the consent of the individuals, or in accordance with one of the
categories of permitted disclosures outlined in subsection 8(2) of the Act.
32. Subsequent actions by certain individuals, such as communication with the
media, do not alter HC's obligations under the Act.

HC Argument # Il: Mail recipients implicitly consented to the disclosure of their
personal information — in corresponding with the individual recipient, to CPC, or
any other individuals living at the same address — as authorized under section
8(1) of the Act
33. HC submits that there was no unauthorized disclosure of persona! information
as clients of the program could reasonably expect to receive correspondence
from the MMAP.
34. HC explained that ail the letter recipients had an existing relationship with HC
as clients of the MMAP and had corresponded with HC via regular mail
delivered by CPC in the past. HC submits that it regularly receives mail from
recipients using "MMAP" in the destination address block, alongside their
name and address in the return address block. As a result, HC states that it is
reasonable to rely on these past communications with MMAP clients as an
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implied consent to disclose their personal information to CPC in the same
manner when communicating with them through the post.
35. In its representations, HC does not deny the fact that there was a disclosure
of personal information if an individual living at the same address as a
complainant viewed the envelope. Notwithstanding, it relies on the argument
that clients of the MMAP have implicitly consented to the disclosure. HC
further submits that it is an inherent consequence of individuals living together
and sharing a mailing address that somebody other than the recipient might
see another's mail.
36. Consequently, HC is of the view that, as clients of the MMAP, they have
implicitly consented to the disclosure of this information and that these
disclosures are authorized pursuant to subsection 8(1) of the Act.

OPC Analysis
37.The question at issue is whether clients of the MMAP have implicitly
consented to receive correspondence from HC that visibly identifies the
MMAP, alongside their names and home addresses.
38.The Privacy Act does not expressly state that consent may be implied, as is
the case under the Personal Information Protection and Electronic
Documents Act. However, the OPC has found that implied consent may, in
some circumstances, be reasonably inferred from an individual's actions.
‘Alhen determining whether implied consent is appropriate, the OPC will take
into account the sensitivity of thë personal information at issue and the
reasonable expectations of the individual in the circumstances.
39.With this in mind, our view is that HC has not demonstrated that it could rely
on implied consent in these circumstances. HC has not provided evidence to
show that every individual it corresponded with had previously sent
correspondence to HC with their name, address and the MMAP on the
envelope.
40. Moreover, the disclosure involves information that is very sensitive in nature
as it relates to an individual's potential involvement with the MMAP. Indeed,
previous mail contact by HC for the purposes of administering the MMAP
never explicitly identified the program. Furthermore, HC admits that including
the reference to the MMAP was an administrative error. Absent evidence to

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the contrary, it is difficult to accept that MMAP clients would have expected
HC's envelopes to allow the name of the program to be openly viewed.
41.We therefore cannot conclude that MMAP clients implicitly consented to the
disclosure of their personal information by virtue of past correspondence with
HC.

HC Argument # "It was a consistent use under section 8(2)(a) of the Act"
42. HC stated that, if the above-noted argument of implied consent is not
accepted by our Office, it would then rely on the consistent use provision
under section 8(2)(a) of the Act as authority for the disclosure.
43. HC's position is that it collected personal information from clients of the
MMAP for the purposes of administering the program, which included
corresponding with individuals via mail. Specifically, HC states that it
disclosed the personal data in the course of sending clients information about
upcoming changes to the program. Given the close link between the
purposes of collection and disclosure, in HC's view, it is reasonable for an
individual to expect that the information would be disclosed for this purpose to
the clients of the MMAP.

OPC Analysis
44.To qualify as a "consistent use" under section 8(2)(a) of the Act, a use need
not be identical to the purpose for which information was obtained. There
need only be a sufficiently direct connection between the purpose for
obtaining the information and the proposed use, such that an individual could
reasonably expect that the information could be used in the manner
proposed2.
45. The OPC does not disagree that a person would reasonably expect that their
participation in the program would require contact by HC for administrative
purposes. However, it would not seem reasonable to expect that HC would
correspond with individuals in a manner that indicates their involvement with
the MMAP, particularly given the sensitive nature of the program. This was
2

Bernard y. Canada (Attorney General), 2014 SCC 13 (CanLil)

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confirmed by several complainants, particularly those who live in small
communities, who indicated that they never expected to receive
correspondence from HC with the name of the program to be openly visible.
46.1n our opinion, the simple association of an individual to a program such as
the MMAP can have social, safety and security consequences, as raised by
many of the complainants in this case. While marihuana may be used for
medical purposes, and under the MMAP its use and cultivation is overseen by
the government, it nonetheless caries a social stigma due to its status as a
prohibited substance. Consequently, the information disclosed could support
inferences that an individual is consuming or producing the substance, or that
an individual has a serious medical condition. For these reasons, we are
compelled to take into consideration the sensitivity of this type of information.
47.0ur review of the evidence and representations from HC did not convince us
that the disclosure of the name of the program was in any way necessary for
the administration of the program — i.e. mailing the letters. While standard
mailing information had to be included in the return address to meet CPC
guidelinès, the exact program name was not necessary for clients to respond
to HC, nor would it have been required for the purposes of returning an
undelivered letter to HC.
48. Moreover, HC did not present any evidence that it turned its mind to
exercising its discretion under 8(2)(a) to include the MMAP in its return
address in the circumstances. On the contrary, HC admits that the reference
to the MMAP on the mail-outs was both a departure from its usual practices
and an administrative error.
49.1t is therefore difficult to accept that referring to the MMAP on correspondence
with individuals involved in the program could fall within an individual's
reasonable expectations as a consistent use of that information. As such we
are of the view that the disclosure at issue in this investigation was not
authorized under section 8(2)(a) of the Act.

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HC Argument # IV: "Limiting the amount of information on the return address
block could have broad implications on how government institutions
communicate with individuals through mail"
50.HC acknowledged that the inclusion of the name of the program in the return
address was the result of an administrative error and was not standard HC
practice. However, HC's position is that its inclusion was within the realrn of
reasonable and lawful options that it could have chosen. Government
institutions may decide to include more or less information in a return
address, depending on the circumstances.
51. HC contends that the amount of information in a return address serves two
purposes: it captures the recipient's attention, and it allows the mail to be
returned, if need be. To take the position that a return address should never
include data that would reveal personal information, HC argues, would make
it difficult to ever include a return address on mail. Furthermore, HC contends
that an overly strict application of the minimal disclosure rule could have
broad implications for how government institutions and private sector entities
communicate with individuals through the mail.

OPC Analysis
52.The investigation confirmed that, in the past, HC used an address locator in
the return address block as follows:
Health Canada-HECS/Santé Canada-SESC
AL/IA 0300A
Ottawa, ON, K1N OK9
53. In the present case, the return address included the specific name of the HC
program which, as noted previously in this report, was not demonstrably
necessary for the purposes of program administration, or to facilitate the
return of envelopes to HC. In fact, HC was unable to provide any evidence to
indicate that it ever had any particular difficulties using an address locator in
the return address block.
54.1Ne do not disagree that a return address on an envelope would facilitate its
return; however, consideration must be given to ensuring that the privacy of
the addressee is in fact respected.

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55. Institutions must take reasonable steps to ensure that communications sent
through the mail sufficiently protect the privacy interests of their clients,
especially when handling information as sensitive as one's interest in a
program which deals with medical marihuana. In keeping with the spirit and
requirements of the Privacy Act, government institutions are expected to
implement strategies to mitigate the risks of unauthorized disclosure of
personal information.

Findings
56.We conclude that the reference to the MMAP in HC's return address in
combination with the name of the addressee, constitutes sensitive personal
information under the Privacy Act. HC has not satisfied the OPC that it had
appropriate consent for the disclosure of this information, nor did it establish
that any of the permissible disclosures under section 8(2) of the Act would
apply in the circumstances. We accordingly conclude that HC was in
contravention of the Act. Therefore, the complaints are well-founded.

Other
57.We recognize that HC's regular practices do not include identifying the
specific program name on communications with clients, and that the, mail-out
in this case was the result of an administrative error. Moreover, following this
unauthorized disclosure, HC has put in place strict mail-out procedures which
air at protecting their clients' personal information.
58.We also note that HC created a new Privacy Working Group to assist the
Bureau of Medical Cannabis in meeting its legal obligations to protect the
personal information of its clients.
59. Nonetheless, we would like to emphasize that HC should always consider the
sensitivity of the information it handles, the degree of stigma often attached to
this information, and the high level of protection that such information calls
for.
60. We encourage HC to follow its new procedures for the management and
coordination of mail-outs in a way that ensures consideration is given to the
safeguarding of clients' sensitive personal information in order to minimize the
risk of unauthorized disclosure.