On March 11, 2024, the British Columbia Supreme Court published its judgment in Lam v. Flo Health Inc., 2024 BCSC 391 which related to the certification of a proposed class action against Flo Health Inc. for alleged violation of the privacy of people who used the Flo Health & Period Tracker application (the application).

Background to the case

According to the Supreme Court, the application assists with tracking all phases of the reproductive cycle by requiring users to input personal information, including health information, and to consent to a privacy policy to use the application. The Supreme Court highlighted that in 2019, Flo amended its privacy policy and entered into agreements with third-party analytics companies, allowing them to use any information from the application for their own purposes, including advertising and product promotion.

Following this, as clarified by the Supreme Court, the lead plaintiff applied for a proposed class action covering approximately one million Canadian users and pleading, among other things, breach of privacy legislation, breach of confidence, and negligence.

Furthermore, the Supreme Court reminded that in June 2021, the U.S. Federal Trade Commission (FTC) entered into a proposed agreement with Flo containing a consent order regarding the same subject matter.

Findings of the Court

The Supreme Court examined the requirements for a class proceeding under Section 4(1) of the Class Proceedings Act. In particular, the Supreme Court certified that the claims of the class members raise common issues under the Personal Information Protection and Electronic Documents Act (PIPEDA) regarding the duty to obtain meaningful consent from class members for the disclosure of personal data to third parties.

In a similar manner, the Supreme Court certified the common issue regarding the breach of privacy legislation in the use and/or disclosure of personal data to third parties and regarding damages for breach of privacy legislation.

Outcomes

The Supreme Court concluded that the plaintiff met the requirement for certification and certified the claim as a class proceeding for all Canadian residents, excluding residents of Quebec, who used the application, between June 1, 2016, and February 23, 2019.

You can read the full judgment here.