The Canadian legal system has betrayed me.
It has supported ignorance toward, and the dismissal of, legitimate psychological damage in favour of blanketed judgement about how and what mental anguish and the post-traumatic effects of it should look like, disregarding anything outside of their narrow, neurotypical view.
I just got off the phone with a lawyer to whom I relayed my story of severe paranoia and mental anguish which led to terrifying agoraphobia, causing distress for me and for my family due to a company violating their duty of care. After reviewing my information for two weeks, he was getting back to me to tell me that his firm would not be taking my case.
He’s basing it upon a precedent-setting case and foreseeability, where a man with obsessive hygiene experienced psychological trauma after finding dead flies in his bottled water (Mustapha v Culligan).
Originally, Mustapha won damages for his claim, however, it was appealed because the water company was not aware of any vulnerability to psychological harm when they sent him the fly-infested water, meaning, that, despite his being obsessive (OCD?), they didn’t think it was “reasonable” and the (neurotypical) judge called it minor and trivial:
“The issue of tort law raised on this appeal is whether a defendant may be liable for damages for psychiatric harm where the harm, by any objective measurement, consists of an exaggerated reaction by an obsessive person of particular sensibilities to what, in reality, is a relatively minor or trivial incident – the sight of a dead fly in a bottle of consumer water. In my view, the answer to this question is no.” Sourced from LawIsCool.com.
But how can a precedent be applicable when people experience things differently? Mental health is not like a physical illness, where an x-ray, CT scan or MRI can ascertain the almost exact cause of the damage, making the diagnosis and the treatment standard. Mental health transcends 1,000,000 shades of grey; it affects everyone differently. So how can one person’s reaction to a traumatic event possibly parallel that of another’s?
I’ve found a hair in my food while dining at a restaurant. I pick it out and put it to the side and continue eating. That’s me. Others are grossed out by it and send their food back, never eating at the restaurant again. I become offended when someone doesn’t return my call. Others chalk it up to the person being busy, and move on. I express my frustration and don’t call that person back again. We all handle things differently based upon our own experience, mental and physical state and moral and ethical codes. It is not and will never be black and white, and the law is supposed to abide by this.
Another part of determining liability was set out by the judge, stating:
“Reasonable foreseeability of harm is the hallmark of tort liability. In my opinion, the test for the existence of a duty of care – and, therefore, for liability – in cases of psychiatric harm is whether it is reasonably foreseeable that a person of normal fortitude or sensibility is likely to suffer some type of psychiatric harm as a consequence of the defendant’s careless conduct. That is what reasonable foreseeability means.” Sourced from LawIsCool.com.
But what about those of us who already have mental health concerns? Are we not protected from further damage due to negligence? That sounds dismissive and discriminatory to me.
There is so much ignorance regarding mental health that I have witnessed in speaking with legal professionals about my case. One of the worst is the generalizations about what mental health is and how it’s seen as an umbrella term, like “crazy” without distinction. Imagine it as though I had a sprained left ankle, was driving my car, got into an accident (other person’s fault), and it broke my left ankle and tibia. Would I not have any recourse for my injury because my ankle was already sprained? Of course I would, that’s ridiculous, but that’s not the way that the courts see psychological injuries. They lump mental health issues together, so, if I was already experiencing depression and an incident led to increased anxiety, it’s not valid because I’ve already got a pre-existing mental health condition.
Right now, I am disappointed, I am angry and I feel abandoned and rejected.
But nobody cares.
Nobody cares because proving psychological injury is so difficult that, unless they’ve experienced it themselves, they cannot possibly understand how obsessively antagonizing it is to your day-to-day living, your self-esteem and your overall perception of the world. How it cripples you, mentally and physically, cuts into your enjoyment of life and the lives of your loved ones who have to deal with your sadness, anger and “invisible” injury.
Here’s my story:
A few years ago, I was prescribed medical cannabis.
My Licensed Producer (LP) – those who fulfilled my prescription, Broken Coast Cannabis, shared my personal information, via email, with other patients. The other patients and I were on an email thread, our email addresses and full names listed in the CC field.
I was upset.
I recognized the violation of privacy in sending that email, confirming my (and others listed) participation in the medical marijuana program.
Under the Federal ACMPR (Access to Cannabis for Medical Purposes Regulations) and its previous incarnations, Health Canada does not have any provisions for the protection of patients’ personal information, not only within their own organization, but they, also, do not impose any regulations on Licensed Producers. WTF?
I was working in a profession that was all about image and reputation, and was in contact, using that specific email address, along with my unique name to conduct business with industry leaders, politicians and media. I was terrified that my credibility would be affected; how some non-supporters of cannabis may decide to stonewall me or consider me “a pothead” incapable of carrying out my very sensitive work.
This was such a major error, one that Broken Coast should have recognized in dealing with such personal information – a medical prescription – the medication often taken by those with mental health issues like generalized anxiety disorder, which affects 1 in 3 Canadians who suffer persistent, often crippling, anxiety about everything that could go wrong, and could have quickly attempted to remedy it.
But they didn’t. They didn’t call, they didn’t email; they did nothing.
How could I let this happen? How could I allow it to happen to me? Would I let it happen to a client, where their public image stood to be affected because of this company’s negligence in protecting patient privacy?
Broken Coast’s website clearly stated (and still does) that they adhered to PIPEDA, so, after reading through the legislation, I knew I had two legs to stand on in my quest for legitimacy surrounding my feelings.
I wanted to rise up and fight! I wanted to call out the people in charge, shocked and upset that my privacy had been breached this way, but I was scared.
I was scared to be removed as a client for speaking up. I was on a four-month-long waiting list to get onto their client roster, and I had finally found an LP with a strain that was working for me (cannabis treatment is highly individualized according to strain; what works for one may not work for another), and I didn’t want to have to search out a new place and go through the expensive, time-consuming and health-affecting testing phase again.
So I kept my mouth shut. Afraid to contact the people at Broken Coast, and because I didn’t want the customer service rep who had sent out the breach email, someone who’d helped me out previously when I needed it (I had disclosed my mental health condition to this person when asking to be placed on the LP’s compassionate pricing list, due to my current medical state and inability to work), to get fired, I struggled with moving forward.
I did not place an order and significantly decreased my medication usage because I was experiencing terrible anxiety about ordering from them again, with my lack of trust in Broken Coast, with my moral obligation (they fucked me over, why would I continue to give them my business?), and my necessity for the medication, things were not good.
Both, my cannabis doctor and my psychiatrist recognized the benefit of the strain for me and had built it into my treatment, so decreasing the use only served me worse in that I wasn’t taking the right amount and it became ineffective and more damaging to my psychological condition.
Finally, I was down to my last gram and I was going out of my mind.
Confronting Broken Coast would mean that I could lose it all (legal dispensaries weren’t a thing at this time, so I had no choice but to obtain it legally or risk getting it illegally), and, for weeks, I’d gone through the scenarios in my head. I could visit a dispensary, but if I was caught, could be charged with possession and taken from my family. I had no money to hire a lawyer. I could be thrown into a jail, amidst my current psychological situation, and suffer even further. I could lose everything.
My license was about to expire and I needed to continue my treatment, so I nervously contacted them.
I contacted the person that had sent the email and explained the situation to her. I told her it had caused me serious hardship and that I had been experiencing psychological trauma for the last month because I didn’t want to get her into trouble, that I was reluctant to re-order and I didn’t want to lose my spot as a patient for bringing up this serious issue of privacy violation.
They didn’t care. I received a phone call from her manager, and after explaining it to her, she said, “Mistakes happen and we’re sorry about any difficulty that this has caused you, but we can’t do anything about it.” (I wrote the words down while speaking so that I wouldn’t forget).
Now I was really angry. How dare they? How dare they disregard my feelings, not only on a customer service level, but on a medical level, as well? Didn’t they owe me a duty of care to protect my privacy?
It was then that I decided to take my case further up the chain, but, as I planned my next move, the terror started to creep up, and paranoia took over.
As a business that deals with people or varying states of mental health, cannabis being an effective and widely-used treatment for anxiety, they should know better and employ effective protection standards.
The email address that was shared was one that I used to conduct my day-to-day correspondence, with friends, family members and government. What if one of those emails that I’d sent to a Federal agency was now cross-referenced and my full name, home address and other information was discovered? What if the CEO of Broken Coast and the investment company that was setting up to buy it, owned by a former higher-up in the Federal government, wanted to “shut me up” to protect their investment, and came to my house to terrorize me, set me up for a tax audit or did something terrible to intimidate me into keeping quiet?
I may sound ridiculously paranoid to you, Reader, but my terror was very severe, and I felt anxious all the time and with “what-ifs”.
The pain was so overwhelming, and I wanted to just let it go, but I couldn’t. I thought of the people who struggle with unfair treatment due to their mental health issues and how those who don’t suffer just don’t get it. The same people who think depression can be fixed with a walk in nature. The same people who think that I’m overreacting, and say, “Sorry, but there’s nothing we can do.” The same people who see it and rule it as “a relatively minor or trivial incident”.
If I’d been poisoned by the medication and doctors were able to identify the cause and effects of that affliction as a result of this company’s product, would the LP respond with “Ooops! Sorry it caused you difficulty, but there’s nothing we can do. We’ve trained our teams to use better hygiene practices.”?
I sent a strongly-worded email to Broken Coast and their response was the same.
The words on their website were lies. They couldn’t care less about me or upholding their commitment to privacy; they only cared about how much money they could make off of my illness and the medication I needed for it.
I wasn’t working; I had nothing except serious credit card debt from their company. They didn’t even offer me a spot on their compassionate pricing list as a gesture of good will for their massive fuck-up, even though I’d previously requested it.
That’s what really made me upset. They weren’t even willing to work with me to remedy their massive mistake.
So, now it was time to take it even further.
I made the decision to go forward with my complaint.
I put up new curtains to block the windows, in case anyone sent by Broken Coast showed up at my house and wanted to look in. I bought an intercom for the door so that, if anyone rang, I wouldn’t have to show myself. I got a dog. I was nervous, agoraphobic, anti-social and scared by the sound of the wind blowing against my front door.
I reached out to the Privacy Office in British Columbia, the province where Broken Coast is located, and they found in my favour. They agreed that Broken Coast Cannabis had violated the privacy laws (PIPEDA & PIPA) that they, themselves, said (on their website) they followed.
This was great news for me and gave me some more confidence, but when the findings letter was sent by the BC Privacy Commissioner, there was no response from Broken Coast except to repeat that they were training their staff on proper methods.
I was unhappy with the response of Broken Coast, ignoring me and the damage that they caused, but sure that, as a Federal Program, Health Canada would have policies in place to ensure patient privacy and outline reprimands for their LPs who violated it.
So, through a chain of exploratory emails, I was able to connect with an analyst within the Privacy Management Division of Health Canada and ask about provisions for the protection of my information under their ACMPR program. I was told that they did not have any:
“As the disclosure in question was not undertaken by Health Canada, it does not fall under our purview.”
How does a Federal health program not ensure that patient’s right to privacy is upheld?
I took that information to the Federal Privacy Commissioner, who re-affirmed that Health Canada did not have that responsibility within their purview.
Why the hell not? It’s a Federal program, so shouldn’t they have stipulations in place that look after the public? They have outlines about the physical security of the facility, the medicine, itself, and the packaging, but nothing requiring the Licensed Producer to adhere to secure storage of patient information.
This violated my Canadian Charter of Rights and Freedoms section 7 right to security, as the distribution of my information, the inferior response from the LP, the lack of protection and accountability from Health Canada exacerbated the horrific psychological affects related to my mental health, and was incredibly detrimental to my psychological state.
I, then, went to the Office of the Federal Privacy Commissioner, providing them with all of the information that I had gathered. They gave me the same response as Health Canada did, asserting that it wasn’t Health Canada’s issue, but Broken Coast’s, and that the LP noted that they took steps to make sure it didn’t happen again.
If Health Canada had legislation in place to protect patients’ private medical information, I feel that the entire process, which I had to carry out (research, review, communications, etc.), on my own, without the help of a legal representative, all while dealing with severe illness, would have kept my condition (and my security), at a reasonable level instead of creating further anxiety and psychological stress, and making my life, and that of my family, even worse.
This has been an ongoing battle for me within my own head, having the constant back-and-forth argument of sharing my story, and what I can do to take a stand on the rights of acknowledgement of mental health and disability. If I had been physically affected by this, personal injury lawyers would be clamoring to take on my case, however, in the years that I have brought my experience forward to lawyers, nobody has cared. No one has understood how severe the psychological damage was to me back then, and still continues to be right now.
Each time I think about what happened, I replay the fear, the anger and the sadness at the fact that I couldn’t do anything about it because no one would help me, which is why I decided to write this.
Every time I think about it, I feel a sense of institutional betrayal from my government that wasn’t there to protect me. The government that let this serious injury to my mental health fall to the wayside because of their ignorance and misunderstanding of psychological trauma.
Those who think that we can just “get over it” because “it could be worse” or it’s “unreasonable”. Waking up every day and having the constant pain of knowing that you were violated and that no one cared to do anything about it is debilitating.
You were sexually harassed by your employer? Get over it.
You were assaulted while you slept in your hotel room? Get over it.
You were hit by a drunk driver and are now paralyzed? Get over it.
A lawyer and I discussed the issue of threshold when it comes to personal injury law and how, in Ontario, in order to win one’s case, a permanent and serious injury must occur. So I asked the lawyer: If a person’s spine is injured in a car accident and, as a result, they are unable to walk, then they have an operation, go to physical therapy and, in a year and a half, they’re able to walk again, with some difficulty, but they can walk. And, if, when it rains, their spine seizes up due to the inclement weather, triggering the pain from the injury; doesn’t that mean the damage is permanent and serious? Do they deserve to be awarded damages for their situation or disregarded because, well, they can walk most of the time?
In my case, although my agoraphobia has subsided, each time I write/talk/think about this situation, my anxiety comes back. Not in such full force where I barricade myself in my home, but anxiety arises and I begin to question those to whom I speak about it: “Does that lawyer know someone at Health Canada and they’ll tell them about me and what I’m planning?” or “Will that lawyer call up her pal at Broken Coast and tell them to prepare a defense where they publicly discredit me?”
Each and every time I think about it, it takes me a day and a half to shake the feeling of fear and anxiety from my system. Almost two years later, the betrayal, the disrespect and the anxiety still appear, prominently and powerfully, but, with mental health and psychological injuries, the public and the legal system hasn’t caught up yet and, because I can “still get on with my day-to-day”, I’m not seen as being permanently and seriously injured.
Maybe law-makers should come hang out with me for a few days and talk to me about the case, so they can see the anger, the anxiety and the madness that ensues after we discuss it and I’m brought back to that year when I was fearful to leave my curtains open.
I’ve had to write this piece and not look at it for a week prior to publishing, so that I wouldn’t be triggered by it. I’m confident that, after this goes up and I spend time sharing it, that the following days won’t be much fun for me or my family.
My hope is that I get support and positive encouragement from people who understand my plight. People who understand that being misunderstood, betrayed and discriminated against based upon my mental disability, will show compassion and help me to understand why the fuck the world has to be such a cold-hearted, bigoted and ignorant place.
Through my anxiety, I’ve written this all out is, firstly, to purge the experience that I have been holding in for years out of the fear of being labelled as “too sensitive”, “weak” or “crazy”. I’m not weak because I had the courage to pursue my feelings and stand up for them. Standing up for myself and for others who have been affected by a similar situation and may not have the ability to stand up for themselves.
A very similar case involving Health Canada disclosing patient’ information as it related to Medical Marijuana and the Privacy Commissioner’s findings in their favour can be seen here: (Disclosure of personal information by Health Canada).
Secondly, I hope to raise awareness of the severity of psychological trauma and how, without understanding and real consideration for people like me, who have been suffering for years, it can cause us further decline into a state of depression and anger, including self-harm and violence toward others.
Finally, I hope that legislation will change and that our mental health becomes a respectfully protected category that doesn’t require weeks of research into the legitimacy of a claim. That, like a slip and fall, our minds can be severely injured and the state of them can, in fact, be considered using valid medical proof, obtained by a better understanding of psychological triggers, mental illness and the dissolution of stigma-perpetuating stereotypes and standards.
While researching this piece, I came across a paper published by BC Privacy in October of 2018 entitled “Protecting Personal Information: Cannabis Transactions”.
I don’t know if my claim had anything to do with it, but I like to think it did and that I have made a positive change. Here it is: https://www.oipc.bc.ca/guidance-documents/2248