COURT FILE NO.: CV-16-564335CP
DATE: 2019/12/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sarah Doucet and L.K.
Plaintiffs
– and –
The Royal Winnipeg Ballet (carrying on business as the Royal Winnipeg Ballet School) and Bruce Monk
Defendants
Gillian Hnatiw and Tina Q. Yang for the Plaintiffs
Baktash Waseil for the Defendant Bruce Monk
HEARD: November 18, 2019
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] This is a refusals motion in this certified class action under the Class Proceedings Act, 1992.[^1]
[2] The Defendant, Bruce Monk, refused to answer 31 questions and there were six questions that Mr. Monk took under advisement that the Plaintiffs, Sarah Doucet and L.K. correctly regard as refusals.
[3] For the reasons that follow, the refusals motion is dismissed.
B. Facts
[4] The Plaintiff, Sarah Doucet, was a student at the ballet school operated by the Defendant, the Royal Winnipeg Ballet. The Plaintiff, L.K., is Ms. Doucet’s common-law partner. The Defendant, Mr. Monk was employed as a member of the dance company as an instructor/teacher, and also as a photographer at the ballet school.
[5] In this proposed class action under the Class Proceedings Act, 1992,[^2]Ms. Doucet and L.K. allege that between 1984 and 2015, Mr. Monk photographed students of the school in private settings; and because of his misconduct at those photo shoots, he and the Royal Winnipeg Ballet perpetrated a variety of statutory and common law wrongdoings. Pursuant to s. 61 of the Family Law Act,[^3] they also allege that Mr. Monk and the Royal Winnipeg Ballet’s wrongdoings support derivative claims for damages suffered by the family members of the students.
[6] Ms. Doucet alleges three core wrongdoings: (1) by his conduct of taking intimate photographs in the private settings, Mr. Monk sexually assaulted the students he photographed; (2) Mr. Monk’s taking of intimate images of the students was a breach of fiduciary duty by abusing his position of power and trust; and (3) Mr. Monk’s disseminating and selling the intimate photographs without the students’ consent was a breach of a variety of statutory and common-law privacy and confidentiality torts.
[7] The Plaintiffs assert that the Royal Winnipeg Ballet is vicariously liable for Mr. Monk’s misdeeds, and that it was negligent in failing to supervise Mr. Monk and failing to take action when it knew about Mr. Monk’s misconduct.
[8] Ms. Doucet and L.K. sued Mr. Monk and the Royal Winnipeg Ballet on behalf of the following class:
All persons who attended the Royal Winnipeg Ballet School (the “School”) from 1984 to 2015 and who, while enrolled at the School, were photographed by Bruce Monk in a private setting (the “Student Class”); including a subclass of:
All members of the Student Class whose intimate photographs taken by Bruce Monk were posted on the internet, sold, published or otherwise displayed in a public setting (the Privacy Subclass); and
All dependants of members of the Student Class, as defined by s.61 of the Family Law Act, RSO 1990, c. F.3 (the “Family Class”).
[9] The Student Class and the Privacy Subclass claim special damages and general damages of $50 million, aggravated damages of $25 million, pre-judgment and post-judgment interest pursuant to the Courts of Justice Act,[^4] plus costs pursuant to the Victims Bill of Rights Act, 1995,[^5] the Canadian Victims Bill of Rights[^6], or the Courts of Justice Act. The Family Class Members claim damages of $10 million.
C. Procedural Background
[10] The Plaintiffs’ action was commenced on November 17, 2016 by Notice of Action and the Statement of Claim was delivered in December 2016.
[11] The Statement of Claim was amended on September 13, 2017. The Plaintiffs plead the following causes of action: (a) negligence; (b) vicarious liability; (c) breach of fiduciary duty; (d) breach of contract; (e) breach of trust; (f) intrusion upon seclusion; (g) breach of confidence; (h) public disclosure of private facts; (i) unjust enrichment; (j) sexual assault and sexual abuse; (k) occupiers’ liability; (l) privacy statute violations; and (m) dependents’ derivative claims under s.61 of the Family Law Act.
[12] Mr. Monk delivered a Statement of Defence dated December 20, 2017, in which he denies, among other things, having acted inappropriately, breaching any duties, causing any harm or loss, or having publicly displayed, distributed, transmitted, sold or made available photographs without the person’s consent or knowledge.
[13] The Royal Winnipeg Ballet delivered a Statement of Defence dated December 21, 2017. In its Statement of Defence, the ballet school pleads that it was not aware of any of the alleged inappropriate photography sessions taking place either on or off its property.
[14] On June 27, 2018, the action was certified as a class action.[^7]
[15] For present purposes, it is important to note that at the argument of the certification motion, both the Royal Winnipeg Ballet and Mr. Monk objected to the proposed class definition, which included former students of the ballet school as Class Members. In response, the Plaintiffs proposed a revised definition that added the, "while enrolled at the Royal Winnipeg Ballet” to the class definition. With this change to the proposed definition, I concluded that the identifiable class criterion was satisfied.
[16] The class definition is set out above. It may be noted that teachers, staff, administrators, and former students; i.e., students who were photographed while not enrolled at the ballet school, are not Class Members.
[17] The Plaintiffs satisfied the common issues criterion for the following list of 23 questions:
Negligence
Did Mr. Monk owe a duty of care to the Student Class?
If the answer to (1) is yes, what is the applicable standard of care?
Did the Royal Winnipeg Ballet owe a duty of care to the Student Class?
If the answer to (3) is yes, what is the applicable standard of care?
Breach of Fiduciary Duty and Breach of Trust
Did Mr. Monk owe a fiduciary duty to the members of the Student Class?
Did the Royal Winnipeg Ballet owe a fiduciary duty to the members of the Student Class?
Was Mr. Monk a trustee of the Student Class with respect to the intimate photographs, and if so, did he breach the duty of trust imposed upon him with respect to maintaining the confidentiality of the photographs?
Breach of Contract
- Was it an express and/or implied term of the Student Class’ contracts with the Royal Winnipeg Ballet, that the Royal Winnipeg Ballet would take all reasonable steps to safeguard the safety, security and well-being of the Student Class while attending the Royal Winnipeg Ballet School?
Breach of Confidence
Were the intimate photos of the Student Class members taken by Mr. Monk confidential?
If the answer to (9) is yes, did the circumstances in which the photographs were taken import an obligation of confidence upon Mr. Monk?
If the answer to (10) is yes, was posting the intimate photos of the Privacy Subclass on the internet, selling the photographs, or otherwise publishing or displaying the photographs in public an unauthorized use of the photos?
Intrusion Upon Seclusion
Did Mr. Monk invade, without lawful justification, the private affairs or concerns of the members of the Student Class?
Would a reasonable person regard the invasion of privacy as highly offensive causing distress, humiliation or anguish?
Public Disclosure of Private Facts
Would the publication, public display, posting on the internet and/or sale of the intimate photographs of the Privacy Subclass be highly offensive to a reasonable person of ordinary sensibilities?
Was the publication, public display, posting on the internet and/or sale of the intimate photographs of the Privacy Subclass of legitimate concern to the public?
Privacy Statutes
- Has Mr. Monk violated the privacy of the Student Class or the Privacy Subclass under:
a. section 2(1) of The Privacy Act, C.C.S.M. c. P125,
b. sections 1 and 3 of the Privacy Act, RSBC 1996 c. 373,
c. section 2 of The Privacy Act, RSS 1978, c. P-24,
d. section 3 of the Privacy Act, RSNL 1990 c. P-22, and/or
e. sections 3 and 35-37 of the Civil Code of Quebec, CQLR c CCQ-1991?
Has Mr. Monk breached section 11(1) of the Intimate Image Protection Act, CCSM c. I87 with respect to the Privacy Subclass?
If the answer to (17) is yes, is the Privacy Subclass entitled to damages, including general, special, aggravated and or punitive damages?
If the answer to (17) is yes, is Mr. Monk required to account to the Privacy Subclass for all the profits that have accrued to him as a result of the non-consensual distribution of the Privacy Subclass’ intimate images, pursuant to s. 14 of the Intimate Image Protection Act, CCSM c. I87?
Vicarious Liability
- Would the Royal Winnipeg Ballet be vicariously liable for the wrongful conduct of its employee, Mr. Monk?
Family Law Act Dependants Liability
- Is either Mr. Monk or the Royal Winnipeg Ballet liable to the Family Law Class for any damages they have incurred pursuant to s. 61 Family Law Act, RSO 1990, c. F.3?
Punitive Damages
Does the conduct of Mr. Monk justify an award of punitive, exemplary and/or aggravated damages?
Does the conduct of the Royal Winnipeg Ballet justify an award of punitive, exemplary and/or aggravated damages?
[18] On April 9, 2019, Taralee Turner, the Chief Administrative Officer of the Royal Winnipeg Ballet was examined for discovery as the ballet school’s representative.
[19] On May 1, 2019, Mr. Monk delivered a three-volume Affidavit of Documents (635 pages). The affidavit included photographs of students and related materials of those person that Mr. Monk had identified as within the class definition.
[20] In Mr. Monk’s Affidavit of Documents, there were photographs of 126 Class Members. He did not include photos or related materials of ballet school staff, administrators, and former students.
[21] Mr. Munk was examined for discovery on May 1, and 2, 2019. The transcript of his examination totals 319 pages. He was asked 1,714 questions.
D. Mr. Munk’s Examination for Discovery
[22] Mr. Munk refused to answer the following 31 questions on his examination for discovery:
Q. No.
Page No.
Question
Basis for Refusal
1.
226
43
To produce the semi-nude photographs that Monk took of [A.M.] in 1989 or 1990.
Refused on the basis of (a) relevancy, and (b) [A.M’s] privacy. At the relevant time, [A.M.] was not a student of the RWB and, as such, she does not fall within the certified definition.
228
43-44
To provide the names of any teachers or administrative staff that Monk photographed nude or semi-nude.
Refused in the basis of (a) relevancy and (b) privacy. Neither teachers nor administrative staff fall within the certified definition.
233
45
To produce copies of the nude or semi-nude photographs that Monk took of any teachers or administrative staff at the Royal Winnipeg Ballet (“RWB”).
Refused on the basis of (a) relevancy and (b) privacy. Neither teachers nor administrative staff fall within the certified definition.
1002
182
To advise whether Monk was aware that [J.M.] was having a personal relationship with a professional division student named [J.L.]
Refused on the basis of relevance.
1003
182
To advise whether Monk was aware that [A.M.] dated a student named [D.T.].
Refused on the basis of relevance.
1004
182
To advise whether Monk was aware of any other personal relationships between RWB staff and RWB students.
Refused on the basis of relevance.
1636
302
To advise whether Monk took nude or semi-nude photographs of [N.R.] while she was […] at RWB.
Refused on the basis of relevance. Information or otherwise pertaining to former students are irrelevant given that they do not fall within the certified definition.
374
71-72
To advise whether Monk is able to verify the date upon which he photographed [B.S.].
At discovery, Mr. Monk stated that [B.S.] had not been a student of the RWB for over a year.
374
73
To provide the dates upon which [B.S.] and [M.L.] posed for photographs taken by Monk.
Refused on the basis of relevance.
815
144
Withdrawn
NA
932
147
To provide the identities of the former RWB students that Monk photographed in his darkroom.
Refused on the basis of relevance. Former students do not fall within the certified definition.
938
169
To produce a copy of the record that Monk uses to organize his archived negatives.
Refused on the basis of relevance.
1176
209
To produce the nude or semi-nude photographs that Monk took of [A.L.].
Refused on the basis of relevance. She was not a student of the RWB when her photograph was taken.
1200-1201
213
To advise whether Monk took other photographs of [B.S.], aside from the ones that were displayed in the gallery.
Refused on the basis of relevance. Mr. Monk answered questions about photographs taken of [B.S.] when she was a student. Any photographs taken after she was no longer a student of the RWB are not relevant.
1203
213
To advise whether Monk took nude or semi-nude photographs of [C.W.] after she was a student.
Refused on the basis of relevance. Anything after [C.W.] was no longer a student of the RWB is irrelevant.
1231
218
To advise whether Monk took any fully-nude pictures of male former students.
Refused on the basis of relevance. Former students do not fall within the certified definition.
1309
232
To identify the person photographed at Tab 158 of the Affidavit of Documents of Sarah Doucet.
Refused on the basis of relevance. Information or otherwise pertaining to former students are irrelevant given that they do not fall within the certified definition.
1310
232
To advise whether the person photographed at Tab 158 of the Affidavit of Documents of Sarah Doucet was a former RWB student.
Refused on the basis of relevance. Information or otherwise pertaining to former students are irrelevant given that they do not fall within the certified definition.
1319
233
To advise whether the person photographed at Tab 160 of the Affidavit of Documents of Sarah Doucet (or, alternatively, Tab 6C of the Certification Motion Record) was a former RWB student.
Refused on the basis of relevance. Information or otherwise pertaining to former students are irrelevant given that they do not fall within the certified definition.
1596
293
To advise when Monk last took photographs of former RWB students in a private setting.
Refused on the basis of relevance. Information or otherwise pertaining to former students are irrelevant given that they do not fall within the certified definition.
1664
308
To produce any records of sales of photographs taken by Monk of former RWB students.
Refused on the basis of relevance. Information or otherwise pertaining to former students are irrelevant given that they do not fall within the certified definition.
1710 – 1711
315 - 316
To advise whether or not there were any students or former students of RWB that Monk photographed over the years and who later approached Monk and requested that he return their photographs, aside from [MP] and [S.M.].
Mr. Monk answered the question with respect to students and he will advise if further information becomes available in that regard in accordance with his ongoing obligations under the Rules of Civil Procedure. However, information or otherwise pertaining to former students are irrelevant given that they do not fall within the certified definition.
666
123 - 124
To produce copies of all invoices of sales made by Monk through eBay.
Refused on the basis of relevance. Anything sold on eBay that does not relate to a student’s photograph in a private setting is irrelevant. Relevant eBay records have already been produced in Mr. Monk’s Affidavit of Documents (see Tabs 148 and 149).
374
72-73
To produce the photographs that Monk took of [B.S.] that were on display at the […] Gallery.
Refused on the basis of relevance. [B.S.] was not a student of the RWB at the material time. Furthermore, [B.S.] had consented to her photographs taken and provided written consent for display.
374
73
To produce the photographs that Monk took of [M.L.] that were on display at the […] Fine Art Gallery in 2010.
Refused on the basis as #8 above.
1012
183
To produce releases from any former RWB students that Monk obtained after they were no longer students.
Refused on the basis of relevance. Former students do not fall within the certified definition.
1013
184
To advise how many releases Monk has obtained from former RWB students.
Refused on the basis of relevance. Former students do not fall within the certified definition.
1040
187
To produce the records showing Monk’s sales of the photographs of [M.L.].
Refused on the basis of relevance. She was not a student of the RWB when her photograph was taken.
122
224
To advise whether any former RWB students’ photographs were listed or showing on WorthPoint.
Mr. Monk does not know the answer to this question. In any event, information or otherwise pertaining to former students are irrelevant given that they do not fall within the certified definition.
1380
246
To produce any documentary evidence that Monk paid [A.R.].
Refused on the basis of relevance. Information or otherwise pertaining to former students are irrelevant given that they do not fall within the certified definition.
1670
308
To advise whether Monk privately sold photographs of former RWB students.
Refused on the basis of relevance. Information or otherwise pertaining to former students are irrelevant given that they do not fall within the certified definition.
[23] On his examination for discovery Mr. Monk took the following 6 questions under advisement:
Question
Page
Question
Basis for Refusal
235 - 236
45 - 46
To advise whether any of the teachers or administrative staff that Monk photographed nude or semi-nude were previously students of the RWB. If so, to advise whether Monk also photographed them as students when they were students.
Mr. Monk has identified in his Affidavit of Documents everyone he photographed as a student nude or semi-nude.
962
173 - 174
To produce a copy of the other release that [T.D.] gave to Monk, aside from the one found at Tab 129 of the AOD.
Refused. The other release executed by [T.D.] is irrelevant for the purposes of this action as it does not deal with matters which fall within the certified definition. The relevant release has been produced in Mr. Monk’s Affidavit of Documents.
1170
208 - 209
To advise whether the photographs of [R.S.] found at Tab 11 of the AOD were taken while she was an RWB student.
Refused. [R.S.] is an opt-out.
1323
234 - 235
With respect to each of the photographs found at Tab 163 of the Affidavit of Documents of Sarah Doucet (or, alternatively, Tab 6G of the Certification Motion Record), to provide Monk’s responses to the following questions or, alternatively, to provide Monk’s reasoning for refusing to answer the following questions:
a) Who is the individual being photographed?
b) Were they a student or a former student of the RWB?
c) What was the age of the subject and/or on what date was the photograph taken?
Did you have a release permitting the publication and/or Internet dissemination from those photographed?
Mr. Monk has listed in the index of his Affidavit of Documents the names of the students whose photographs he took.
1323
234-235
With respect to each of the photographs found at Tab 164 of the Affidavit of Documents of Sarah Doucet (or, alternatively, Tab 6H of the Certification Motion Record), to provide Monk’s responses to the following questions or, alternatively, to provide Monk’s reasoning for refusing to answer the following questions:
a) Who is the individual being photographed?
b) Were they a student or a former student of the RWB?
c) What was the age of the subject and/or on what date was the photograph taken?
Did you have a release permitting the publication and/or Internet dissemination from those photographed?
Mr. Monk has listed in the index of his Affidavit of Documents the names of the students whose photographs he took.
1568
285 - 286
To review the class records for all of the professional division students that have been produced by the RWB and to advise the following:
a) which students Monk photographed in a private setting;
b) whether they were nude or semi-nude photographs;
c) what age the students were when the photographs were taken;
d) whether they were students or former students at the time the photographs were taken; and
the amount of time that passed between when they were no longer students and when the photographs were taken.
Mr. Monk has listed in the index of his Affidavit of Documents the names of the students whose photographs he took.
[24] All of the 31 refused questions and under-advisement questions 1, 2, 4 (except for those who fall within the class definition), question 5 (except those who fall within the definition), and question 6 are questions about Royal Winnipeg Ballet staff and administrators and about former Royal Winnipeg Ballet students.
[25] Under-advisement question 2 is a question about a putative Class Member who opted out of the class action.
[26] During Mr. Monk’s examination for discovery, he revealed that he had an imperfect and somewhat disorganized record keeping system, but he said that in his affidavit of documents, he had produced all the records that related to the Class Members. He deposed that he had not produced records with respect to persons that he had photographed who were not Class Members, which included former students. He deposed that when he was uncertain about whether a student was a Class Member or not a member of the class, he included their photos records in his Affidavit of Documents.
E. Discussion and Analysis
[27] Section 15 of the Class Proceedings Act, 1992 provides that the representative plaintiff(s) and the defendant(s) have the same discovery rights as they would have in any other proceeding but that there is no discovery of Class Members without leave of the court. Section 15 states:
Discovery
Discovery of parties
- (1) Parties to a class proceeding have the same rights of discovery under the rules of court against one another as they would have in any other proceeding.
Discovery of class members with leave
(2) After discovery of the representative party, a party may move for discovery under the rules of court against other class members.
Idem
(3) In deciding whether to grant leave to discover other class members, the court shall consider,
(a) the stage of the class proceeding and the issues to be determined at that stage;
(b) the presence of subclasses;
(c) whether the discovery is necessary in view of the claims or defences of the party seeking leave;
(d) the approximate monetary value of individual claims, if any;
(e) whether discovery would result in oppression or in undue annoyance, burden or expense for the class members sought to be discovered; and
(f) any other matter the court considers relevant.
Idem
(4) A class member is subject to the same sanctions under the rules of court as a party for failure to submit to discovery.
[28] The scope of an examination for discovery for plaintiffs and defendants is set out in rule 31.06 (1) of the Rules of Civil Procedure,[^8] which states:
31.06 (1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action or to any matter made discoverable by subrules (2) to (4) and no question may be objected to on the ground that,
(a) the information sought is evidence;
(b) the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness; or
(c) the question constitutes cross-examination on the affidavit of documents of the party being examined.
[29] A person being examined may properly refuse to answer a question or to give an undertaking at a cross-examination on an affidavit or an examination for discovery.[^9] The justifications for refusals are:
a. Unanswerable – the question is not capable of being answered, which is to say that the question is vague, unclear, inconsistent, unintelligible, redundant, superfluous, repetitious, overreaching, fishing, beyond the scope of the examination, speculative, unfair, oppressive, or a matter of rhetoric or argument;
b. Immaterial – the question is not material, which is to say that the question falls outside the parameters of the action and does not address a fact in issue;
c. Irrelevant – the question is not relevant, which is to say that the question does not have probative value; it does not adequately contribute to determining the truth or falsity of a material fact;
d. Untimely – the question is not relevant because it concerns events or matters temporally unconnected to the cause of action or defence;
e. Idiosyncratic or uncommon - in an action under the Class Proceedings Act, 1992, the question is not relevant to the common issues because it concerns an individual inquiry that was not certified for the common issues trial;
f. Answered – the question or the documents relevant to the question have already been provided by the party being examined;
g. Disproportionate – the question is disproportionate, which is to say that the question may be relevant but providing an answer offends the proportionality principle; and
h. Privileged – the answer to the question is subject to a privilege, including lawyer and client privilege, litigation privilege, or the privilege for communications in furtherance of settlement.
[30] In class proceedings, the current general rule is that the examinations for discovery are restricted to just the issues that have been certified.[^10] However, this is not an absolute rule, and in an appropriate case other issues and not just those associated with the common issues may be the subject of discovery.[^11] There is no absolute rule because depending on the exigencies of the particular case restricting the defendant's discovery rights of the representative plaintiff may prejudice the defendant's rights and may not promote judicial economy.[^12]
[31] Rule 31.11 specifies what use can be made of the examination for discovery at trial. Rule 31.11 states:
USE OF EXAMINATION FOR DISCOVERY AT TRIAL
Reading in Examination of Party
31.11 (1) At the trial of an action, a party may read into evidence as part of the party’s own case against an adverse party any part of the evidence given on the examination for discovery of,
(a) the adverse party; or
(b) a person examined for discovery on behalf or in place of, or in addition to the adverse party, unless the trial judge orders otherwise,
if the evidence is otherwise admissible, whether the party or other person has already given evidence or not.
Impeachment
(2) The evidence given on an examination for discovery may be used for the purpose of impeaching the testimony of the deponent as a witness in the same manner as any previous inconsistent statement by that witness.
[32] In the immediate case, in my opinion, Mr. Monk’s refusals were justified on the grounds that the questions were an immaterial, irrelevant, disproportionate, and an overreaching, fishing expedition.
[33] Ironically, having regard to the nature of the allegations being made against him by the Plaintiffs, Mr. Monk was also justified in refusing to answer questions that would invade the privacy of former students and the staff and administration of the Royal Winnipeg Ballet, who are non-parties to this litigation.
[34] In my opinion, questions about whether non-Class Members were photographed in the nude were not material or relevant and having regard to the information provided by Mr. Monk about genuine Class Members, this questioning was in any event disproportionate, even if it were a relevant line of questioning. I have seen the photos in the affidavit of documents and produced on the certification motion, and there is ample evidence of the nature of Mr. Monk’s photography.
[35] The Plaintiffs submitted that Mr. Monk’s refused questions and his questions taken under advisement were relevant to three issues; namely: (1) The questions were relevant to establishing the institutional knowledge of the Royal Winnipeg Ballet of Mr. Monk’s activities, which, in turn, was relevant to the Class Members’ claim of vicarious liability against the ballet school; (2) The questions were relevant to the issue of the general atmosphere and accepted norms concerning student instructor relationships at the ballet school, which, in turn was relevant to Royal Winnipeg Ballet’s vicarious liability and its direct liability for negligence and breach of fiduciary duty; and (3) The questions were relevant to establishing the identity of Class Members.
[36] I disagree that the refused questions are relevant for the reasons submitted by the Plaintiffs. In my opinion, Mr. Monk’s examination for discovery is irrelevant and immaterial to the Plaintiffs’ case against the Royal Winnipeg Ballet.
[37] Under rule 31.11 (1), at the trial of the action, the Plaintiffs may read into evidence as part of their case against Mr. Monk, Mr. Monk’s evidence from his examination for discovery. Under rule 31.11 (1), the Plaintiffs may read into evidence as part of their case against the Royal Winnipeg Ballet, the examination for discovery of the Royal Winnipeg Ballet’s representative, Ms. Turner.
[38] However, rule 31.11 (1) does not permit the Plaintiffs to read into evidence Mr. Monk’s evidence as against the Royal Winnipeg Ballet.
[39] The Plaintiffs submit that Mr. Monk should answer the questions because the Royal Winnipeg Ballet’s staff and administration and the former students could be called at trial to give evidence about the institutional knowledge of the ballet school and as similar fact evidence as against Mr. Monk.
[40] For present purposes, I need not comment about whether or not this evidence from former students and the ballet school’s staff would be admissible at trial, but I do observe that because the evidence was available at trial from other witnesses is not a justification for asking Mr. Monk questions the answers to which could not be read in at trial as part of the case against the ballet school.
[41] It is also my opinion that the refused questions and the questions taken under advisement are not relevant to the case as against Mr. Monk, personally, which is a case brought on behalf of Class Members and not non-Class Members. It is also my opinion, that photographs of staff members and former students if relevant evidence, nevertheless, in the circumstances of the immediate case, it is disproportionate.
[42] Finally, if the refused questions have any relevancy, they go to Class Member identification which is a matter for the individual issues’ trials, which will occur after the common issues’ trial in this matter, assuming the Plaintiffs are successful in their case against Mr. Monk or the Royal Winnipeg Ballet.
[43] I need not answer whether privacy concerns are another justification for refusing to answer questions. I do note that while perhaps not a recognized ground for refusing to answer questions, it is ironic that the Plaintiffs asked and that it was Mr. Monk who refused to answer questions that would require him to disclose photographs of non-Class Members that the Plaintiffs allege are pornographic in nature and in any event are a very private matter.
[44] The non-Class Members are not subject to examination for discovery without court order and the non-Class Members have not consented to the disclosure of their private information. Generally speaking, the Canadian approach to pre-trial disclosure is to protect third parties from any intrusion on their privacy without court order and so, ironic as it may be, there is some traction to Mr. Monk refusing to provide copies of the intensely private photographs of non-Class Members.
F. Conclusion
[45] For the above reasons, the refusals motion is dismissed.
[46] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Mr. Monk’s submissions within twenty days of the release of these Reasons for Decision followed by the Plaintiffs’ submissions within a further twenty days.
Perell, J.
Released: December 3, 2019
COURT FILE NO.: CV-16-564335CP
DATE: 2019/12/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sarah Doucet and L.K.
Plaintiffs
– and –
The Royal Winnipeg Ballet (carrying on business as the Royal Winnipeg Ballet School) and Bruce Monk
Defendants
REASONS FOR DECISION
PERELL J.
Released: December 3, 2019
[^1]: S.O. 1992, c. 6.
[^2]: S.O. 1992, c. 6.
[^3]: R.S.O. 1990, c. F.3.
[^4]: R.S.O. 1990, c. C.43
[^5]: S.O. 1995, c. 6
[^6]: S.C. 2015, c. 15.
[^7]: Doucet v The Royal Winnipeg Ballet, 2018 ONSC 4008
[^8]: R.R.O. 1990, Reg. 194.
[^9]: Abou-Elmaati v. Canada (Attorney General), 2016 ONSC 6075; Fischer v. IG Investment Management Ltd., 2015 ONSC 3525; Fehr v. Sun Life Assurance Co. of Canada, 2015 ONSC 2908; Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2013 ONSC 917; 2038724 Ontario Ltd. v. Quizno’s Canada Restaurant Corp., 2012 ONSC 6549; Axiom Plastics Inc. v. E.I. Dupont Canada Co., 2011 ONSC 4510; Ontario v. Rothmans, 2011 ONSC 2504, leave to appeal refused 2011 ONSC 3685 (Div. Ct.).
[^10]: 2038724 Ontario Ltd. v. Quizno’s Canada Restaurant Corp., 2012 ONSC 6549; Ramdath v. George Brown College of Applied Arts and Technology, 2012 ONSC 2747; Axiom Plastics Inc. v. E.O. Dupont Canada Company, 2011 ONSC 4510; Abdulrahin v. Air France, 2010 ONSC 3953; Andersen v. St. Jude Medical Inc., [2006] O.J. No. 3659 (Master), varied [2006] O.J. No. 5769 (S.C.J.); 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada, [2003] O.J. No. 5703 (Master).
[^11]: Axiom Plastics Inc. v. E.I. DuPont Canada Co., 2011 ONSC 4510; Pennyfeather v. Timminco Ltd., 2011 ONSC 4257; Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2008 CanLII 42422 (ON SC), [2008] O.J. No. 3304 (S.C.J.).
[^12]: Pennyfeather v. Timminco Ltd., 2011 ONSC 4257 at para. 35; Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2008 CanLII 42422 (ON SC), [2008] O.J. No. 3304 at paras. 54-57 (S.C.J.)