COURT FILE NO.: CV-19-00631903-00CP
DATE: 20210427
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
G.C., J.C., and A.C.
Plaintiffs
- and -
MARTIN JUGENBURG and
DR. MARTIN JUGENBURG MEDICINE PROFESSIONAL CORPORATION
Defendants
Margaret Waddell, Tina Q. Yang, Kate Mazzucco, Josh Nisker, Paul Miller, and Valérie Lord for the Plaintiffs
Nina Bombier, Paul-Erik Veel and Brianne Westland for the Defendants/Respondents
Proceeding under the Class Proceedings Act, 1992
HEARD: April 12, 2021
PERELL, J.
REASONS FOR DECISION
[1] This is a preliminary motion at the outset of a certification motion.
[2] The immediate case is a breach of privacy action pursuant to the Class Proceedings Act, 1992.[^1] The Plaintiffs, G.C., J.C., and A.C., sue Martin Jugenburg, who is a plastic surgeon, and his corporation, Dr. Martin Jugenburg Medicine Professional Corporation. Dr. Jugenburg carries on an entrepreneurial medical practice through his professional corporation that operates a clinic known as the Toronto Cosmetic Surgery Institute.
[3] The Plaintiffs propose the following class definition:
All patients who attended at the Toronto Cosmetic Surgery Institute from January 1, 2010, to December 13, 2018, and:
(a) whose images were posted on the internet, published or otherwise displayed in a public setting by the defendants, and who claim the publication was without their valid consent (the “Internet Class” or “Internet Class Members”); and/or
(b) attended at the Toronto Cosmetic Surgery Institute during the time from January 1, 2017, until December 13, 2018, when video surveillance cameras were in operation (the “Surveillance Class”).
[4] The Plaintiffs and the putative Class Members have two major grievances for which they seek compensation. The first major grievance, which concerns all of the putative Class Members, may be labelled the Surveillance Complaint for the Surveillance Class. For the Surveillance Complaint, it is alleged that there are video cameras installed throughout the clinic, and the Plaintiffs allege that the Defendants used those video cameras to surreptitiously collect video recordings of nude and semi-nude Class Members without their consent.
[5] The second major grievance may be labelled the Social Media Complaint for the Internet Class. This second major grievance concerns a subset of the putative Class Members. For the Social Media Complaint, it is alleged that the Defendants obtained photographic images of patients under the false pretense that the images would be used only for the purposes of medical care. Some of these images obtained under false pretense were used to market the clinic by postings on social media platforms. It is alleged that the posting of these images was without valid patient consent.
[6] This preliminary evidentiary motion concerns the evidence about class size. Section 5 (3) of the Class Proceedings Act, 1992 requires each party to provide evidence as to the size of the class. Section 5 (3) states:
Evidence as to size of class
5 (3) Each party to a motion for certification shall, in an affidavit filed for use on the motion, provide the party’s best information on the number of members in the class.
[7] In their motion record for the certification motion, the Plaintiffs relied on the affidavit evidence of Paul Miller, who is a partner of the law firm Howie, Sacks & Henry LLP, which is a member of the consortium proposed as Class Counsel for the Plaintiffs. Mr. Miller provided the Plaintiffs’ best information on the number of members in the class. Mr. Miller was cross-examined. Mr. Miller’s evidence would appear to satisfy the modest numerosity requirements for certification of a class of two or more persons.
[8] The evidentiary record for the certification motion was closed, and after the Plaintiffs had delivered their factum for the certification motion and after receipt of the Defendants’ responding factum, the Plaintiffs sought leave to deliver an additional affidavit from Mr. Miller about class size.
[9] The Defendants objected to the delivery of Mr. Miller’s supplementary affidavit and the Plaintiffs require leave because of rule 39.02 (2) of the Rules of Civil Procedure,[^2] which states:
39.03 (2) A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03.
[10] The Plaintiffs justify their request for the subsequent to cross-examination delivery of an affidavit because they assert that the Defendants never provided their best information on the number of members in the class and that Mr. Miller’s supplementary affidavit responds to matters raised on the cross-examination of Dr. Jugenburg.
[11] I dismiss the Plaintiffs’ motion for three reasons.
[12] First, it is not the case that the Defendants did not provide their best information on the number of members in the class – as the class was defined by the Plaintiffs.
[13] In this regard, it should be noted that in the way that the Internet Class has been defined by the Plaintiffs, the Defendants’ best information would be their knowledge of former patients “who claim the publication [of their depiction in photographs] was without their valid consent.”
[14] In his first affidavit sworn on July 30, 2020, Dr. Jugenburg deposed that to the best of his recollection, two patients complained that they did not consent to a posting of their photographs. The patients were S.S., who is a putative Class Member and a deponent for the Plaintiffs on the certification motion and L.P., who sued the Defendants in an action that was resolved in 2019. In his answers to undertakings, he said a few unidentified patients had complained.
[15] In the immediate case, the Plaintiffs have only themselves to blame for a poorly crafted class definition for the Internet Class, which is a matter that I shall have to address on the certification motion.
[16] The Plaintiffs have only themselves to blame for not asking useful questions on Dr. Jugenburg’s cross-examination. He could not possibly know whether a patient claimed to have given an invalid consent or why they would make that claim unless the patient told him. He has disclosed what he has been told.
[17] Second, the Plaintiffs do not satisfy the test for leave being granted under rule 39.02 (2).
[18] In First Capital Realty Inc. v. Centrecorp Management Services Ltd.,[^3] the Divisional Court held that the criteria for determining whether a party should be granted leave to file a further affidavit after there have been cross-examinations are:
a. Is the evidence relevant?
b. Does the evidence respond to a matter raised on the cross-examination?
c. Would the opposing party suffer prejudice not compensable by an adjournment, costs or terms?, and
d. Did the moving party provide an adequate and reasonable explanation why the evidence was not included at the outset?
[19] The Divisional Court also held that all the criteria should be weighed and no one criterion was determinative. The court should avoid a rigid interpretation of rule 39.02, and a flexible, contextual approach is to be preferred.
[20] In the immediate case, the evidence sought to be introduced cannot be said to respond to a matter raised on Dr. Jugenburg’s cross-examination. The matters of class size and class definition were raised as issues long before Dr. Jugenburg was cross-examined, and, thus, Mr. Miller’s supplementary affidavit, which the Plaintiffs in their factum describe essentially as updating, has more of the appearance of being case-splitting, which is inherently prejudicial as a matter of the principles of natural justice and due process.
[21] Further, in the immediate case, while it is understandable why Mr. Miller might have updating information about the numbers in the Internet Class, and thus there is a reasonable explanation why he did not include the evidence at the outset, there is no reasonable explanation why the supplementary affidavit was not delivered before both parties began preparation of their factums for the certification motion. Once again, there is the appearance of case-splitting, which is inherently unfair to a defendant.
[22] Third, in the circumstances of the immediate case where: (a) neither party wishes the certification motion to be adjourned; and (b) the Plaintiffs have asserted that there is already sufficient evidence on the record to determine that the identifiable class criterion for certification has been satisfied, granting permission to deliver the supplementary evidence and adjourning the certification motion to allow for a further cross-examination of Mr. Miller or to allow Dr. Jugenburg to deliver a responding affidavit would be both unfair and unnecessary because there appears already adequate evidence to address the numerosity requirements of the Class Proceedings Act, 1992.
[23] For these reasons, I dismiss the Plaintiffs’ motion with costs in the cause of the certification motion.
Perell, J.
Date of Judgment: April 12, 2021.
Released: April 27, 2021.
COURT FILE NO.: CV-19-00631903-00CP
DATE: 20210427
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
G.C., J.C., and A.C.
Plaintiffs
- and -
MARTIN JUGENBURG and
DR. MARTIN JUGENBURG MEDICINE PROFESSIONAL CORPORATION
Defendants
REASONS FOR DECISION
PERELL J.
Released: April 27, 2021.
[^1]: S.O. 1992, c. 6. [^2]: R.R.O. 1990, Reg. 194. [^3]: [2009] O.J. No. 4492 (Div. Ct.).