Law Times

Page 10 September 4, 2017 • Law timeS www.lawtimesnews.com Winnipeg Royal Ballet class action underway BY JUDY VAN RHIJN For Law Times I n a recent class action filed against the Winnipeg Royal Ballet, former students are asserting claims based upon breach of privacy in relation to intimate photos taken by an instructor and then posted on- line. The case promises to de- velop the jurisprudence in this relatively new area of the law, where courts are wrestling with the concept of digital images be- ing uploaded on to the internet, where control is then out of the hands of the defendant and the scope of exposure can be infi- nite. "Thousands and thousands of images have been retrieved off the internet," says Margaret Waddell, whose Toronto-based firm Waddell Phillips PC has commenced the class action. "[T]hat can have quite a dev- astating effect on individuals — knowing the images are out there and that they never really go away." The women represented in the class action were students, under the age of 18, at the pres- tigious ballet school. They have alleged an instruc- tor and photographer at the school, Bruce Monk, had un- supervised photo sessions with them in which he coaxed them to partially undress. While the police have been investigating the matter, no charges have been laid to date. The representative plaintiff in the class action is Sarah Doucette, a student at the school in the 1990s. "Many other students have come forward and been in con- tact with us. They all speak of a similar experience," says Wad- dell. She says images of the stu- dents continue to appear online. "Even if the original post- ing comes down, it doesn't take much effort to Google them or they can be downloaded and reposted at a later date," she says. The proceedings are at a very early stage. Waddell says she is currently putting together the record for certification. "It should be completed in September and delivered to the defendants," she says. The Winnipeg Ballet School is being represented by Paul Tushinski of Dutton Brock LLP, who declined to be interviewed. Monk is represented by Su- san Metzler of Miller Thomson LLP, who did not respond to re- quests for an interview. There has been no court ap- pearance so far except the or- der from the court allowing Doucette's spouse, who is the representative in the Family Law Act claim, to be named by initials. Waddell advises there is also a hearing with the Class Proceedings Fund at the end of the month. She does not envi- sion any unusual hurdles ob- taining certification. She refers to Jones v. Tsige, 2012, ONCA 32, where a wom- an's confidential bank records were accessed by her former husband's new wife, a bank em- ployee. In that case, the Court of Appeal of Ontario articulated the tort of intrusion on seclusion for the first time, saying: "The key features of the cause of action of intrusion upon seclusion are, first, that the defendant's conduct must be intentional (which includes recklessness); second, that the defendant must have invaded, without lawful justification, the plaintiff 's private affairs or concerns; and third, that a rea- sonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish." Waddell says that there is no doubt that the former students are entitled to pursue the claim against the Winnipeg Royal Bal- let as a civil claim under the tort "intrusion on seclusion." She says that the tort is still developing, particularly in de- termining the appropriate mea- sure of damages for having inti- mate images posted online. "Courts are still working through that. It is a relatively new area because the internet is relatively new," she says. "It's right out there on the front end of the law." One of the few comparable cases is the default judgment in the case of Jane Doe 464533 v. N.D., 2017 ONSC. The original judgment was rendered in January 2016 in the Superior Court of Ontario, but later last year, Justice Grant Dow of the Superior Court granted a motion to set the default judg- ment aside on the basis that the factors of promptness, arguable defence and prejudice favoured the defendant. That decision was appealed early this year. The presiding judge, Superior Court Justice Frances Kiteley, denied the motion, saying she did not see "the dismissal of this motion for leave to appeal as a discouragement of victims." "The uniqueness of the case and the prospect for a decision on the merits making a contri- bution to the development of torts in an important area of the law is a compelling reason to conclude that it is a question of general importance that the defendant have the opportunity to participate in a trial," said the ruling. Lara Guest, an associate at Torys LLP, who will represent Jane Doe in the retrial, says an important point in Kiteley's de- cision "is that it only set aside the finding of liability and the dam- ages." "It didn't set aside the in- junction that the defendant de- stroy any and all intimate im- ages or recordings of the plain- tiff in his possession, power or control, and it didn't set aside the legal principles relating to the tort," she says. "That is still good law." LT FOCUS Margaret Waddell says that, in the past, 'egregious photography cases didn't fit the category of child pornography.' ORDER YOUR COPY TODAY! Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS Ontario Lawyer's Phone Book is your best connection to legal services in Ontario with more than 1,400 pages of essential legal references. You can depend on the accuracy of this trusted directory that includes the most up-to-date names, phone numbers, mailing addresses and emails so you don't have to search anywhere else. More detail and a wider scope of legal contact information for Ontario: • Over 26,800 lawyers listed • Over 8,500 law firms and corporate offices listed • Fax and telephone numbers, e-mail addresses, office locations and postal codes Includes lists of: • Federal and provincial judges • Federal courts, including a section for federal government departments, boards and commissions • Ontario courts and services, including a section for provincial government ministries, boards and commissions • Small claims courts • The Institute of Law Clerks of Ontario • Miscellaneous services for lawyers NEW EDITION Perfectbound Published December each year On subscription $82.50 One time purchase $86 L7796-5932 Multiple copy discounts available Plus applicable taxes and shipping & handling. (prices subject to change without notice) ONTARIO LAWYER'S PHONE BOOK 2017 Untitled-2 1 2017-08-30 1:08 PM NEWLY LAUNCHED Join our 55,000 monthly visitors and read award-winning content across any device. www.canadianlawyermag.com We've redesigned our website for improved navigation and easy access to the latest in legal news, features, digital editions, video and more. A FRESH LOOK FOR YOUR MOST TRUSTED LEGAL CONTENT Untitled-6 1 2017-08-30 3:42 PM

• Cover