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.
Proceeding under the Class Proceedings Act, 1992
HEARD: April 12, 2021
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] This is a preliminary motion at the outset of a certification motion.
[2] The Defendants seek an Order striking the expert report of Dr. Mary Anne Franks.
[3] 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. A.C., G.C., and J.C. were patients at the Defendants’ clinic.
[4] 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”).
[5] 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.
[6] 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.
[7] For the Social Media Complaint, it is alleged that the Defendants obtained photographic images of patients, some of them nude or semi-nude 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.
[8] The Plaintiffs sue for: (a) breach of confidence; (b) breach of fiduciary duty; (c) breach of trust; (d) intrusion upon seclusion; (e) negligence; (f) public disclosure of private facts; and (g) unjust enrichment. The Plaintiffs claim damages of $50 million and punitive damages of $25 million.
B. The Evidence of Dr. Franks
[9] In her report, Dr. Franks describes the social/cultural context of the non-consensual collection and/or distribution of personal images. She describes the American and Canadian law in relation to the non-consensual collection and/or distribution of intimate images. She describes the harm caused to individuals and society by the non-consensual collection and/or distribution of personal images.
[10] In her report, Dr. Franks does not comment about the Defendants or about the particular allegations made against the Defendants.
[11] In the Plaintiffs’ factum and during counsel’s oral argument, it was submitted that Dr. Franks’ evidence was relevant and helpful to the trier of fact’s determination of the common issues for both the Surveillance Class and also most particularly for the Internet Class because her evidence explained the psychological harm caused when a person loses control over his or her recorded images, including the psychological stress of having doubts whether the images were taken, retained, disseminated or destroyed.
[12] While Dr. Franks is not a medical doctor, the Plaintiffs submitted that her legal knowledge and her interdisciplinary experience in the academy provided relevant information with respect to the harm that could or would be experienced by all the class members.
C. The Admission of Opinion Evidence
[13] Unless qualified as an expert or testifying about a matter of everyday human experience, a witness’s opinion about the facts is inadmissible; the general rule is that a witness does not opine but testifies as to facts he or she perceived.[^2] A witness that is qualified by education or experience to provide the trier of fact with an opinion that is outside the trier of fact’s knowledge and experience may provide an opinion to assist the trier of fact to come to his or her own conclusion.[^3] For a witness to be qualified as an expert, his or her opinion must be relevant and necessary to assist the trier of fact and not precluded by an exclusionary rule.
[14] As established by R. v Mohan,[^4] the four criteria for the admissibility of expert evidence are:
a. relevance.
b. the trier of fact needs assistance to determine the truth of the facts.
c. the witness is qualified to express an opinion by virtue of study, training or experience, and
d. the absence of an exclusionary rule.[^5]
[15] There is a fifth criterion in cases in which the expert’s opinion is based on novel or contested science or science used for a novel purpose and, in these cases, the reliability of the underlying science for that purpose must be established.[^6]
[16] The court must take seriously the role of gatekeeper and scrutinize the expert evidence at the time it is proffered, and not allow too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility.[^7]
[17] As confirmed by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co.,[^8] there is a two-stage test for the admission of opinion evidence. In the first step, the threshold stage, the litigant proffering expert evidence must satisfy the factors from R. v. Mohan.[^9] In the second stage, the gatekeeper stage, the court makes a cost-benefit discretionary decision weighing the probative value of admitting the evidence against the potential adverse impacts of admitting the evidence, including the consumption of time, prejudice and the risk of confusing the trier of fact.
[18] To be qualified as an expert witness, the witness must be independent, objective and unbiased, and the witness should not be or become the advocate for the litigant who retained and called him or her to testify.[^10]
D. Discussion and Analysis
[19] In the immediate case, it may be the case that Dr. Franks’ expertise and her evidence may be useful and probative at a later juncture of this proceeding, but I am not persuaded that her evidence is relevant to determine the truth of the facts necessary to show that there is some basis in fact for the certification criterion.
[20] There are numerous problems about the admissibility of Dr. Franks’ evidence at this juncture of the proceedings.
a. Dr. Franks’ evidence about Canadian law is not proper opinion evidence because unlike foreign law, which is an issue of fact, Canadian law is purely an issue of law for which factual opinion evidence is not required or permitted.
b. Dr. Franks’ evidence about American civil and criminal law about the harms caused by doctors and others publishing images of their patients is not relevant to the issues to be addressed in the immediate case at this juncture of the case.
c. Dr. Franks’ evidence about such matters as revenge porn and the internet is not relevant to the issues to be determined at certification of this particular proposed class action.
d. Another example of evidence that appears untethered to the facts of the immediate case is her evidence about “image-based sexual abuse.” This evidence may be relevant to individual damages assessments, but I do not see its relevance to the certification criterion particularly the matter of commonality.
e. In the immediate case, there are concerns that Dr. Franks’ qualifications do not extend to all of the subject matters that she discusses in her report.
f. Dr. Franks’ evidence insofar as it might relate to the common issues is not helpful because she does not connect the evidence to the facts and circumstances of the immediate case.
g. In this last regard, I do not accept the Plaintiffs’ argument that at this juncture the facts are too fluid and contentious for Dr. Franks to provide a definitive opinion. Experts frequently opine relying on the facts set out in a party’s statement of claim being proved. Opinions based on assumed facts are the bread and butter of expert opinion evidence. Dr. Franks’ evidence does not butter the evidentiary bread of the immediate case.
h. With respect to Dr. Franks’ evidence about the common issues, I can say that having read the Plaintiffs’ factum, which was delivered before this motion to strike Dr. Franks’ report, I did not get much assistance about commonality from the factum.
[21] In short, I am not persuaded that Dr. Franks’ expert evidence is relevant to the issues to be decided on the certification motion.
[22] Because I am not persuaded that Dr. Franks’ expert evidence is relevant or helpful to the certification criterion, I need not comment about her qualifications or about whether she is not independent, objective, and unbiased, which allegations are made against her by the Defendants.
[23] I also need not comment about whether her opinion is based on novel or contested science or science used for a novel purpose in which case the reliability of the underlying science must be established before the evidence is admitted.
E. Conclusion
[24] For the above reasons, I grant the Defendants’ motion to strike Dr. Franks’ affidavit and report with costs to the Defendants in any event 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. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819.
[^3]: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9; R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223; R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24.
[^4]: 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9.
[^5]: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] S.C.J. No. 36, [1994] 2 S.C.R. 9 (S.C.C.).
[^6]: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at para. 23; R. v. Trochym, 2007 SCC 6; R. v. J. (J.-L.), 2000 SCC 51.
[^7]: R. v J. (J.), 2000 SCC 51.
[^8]: 2015 SCC 23 (S.C.C.); Wright v. Detour Gold Corp., 2016 ONSC 6807.
[^9]: 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9.
[^10]: Moore v. Getahun, 2015 ONCA 55, leave to appeal refused [2015] S.C.C.A. No. 119; Carmen Alfano Family Trust (Trustee of) v. Piersanti, 2012 ONCA 297 leave to appeal refused [2012] S.C.C.A. No. 309; Deemar v. College of Veterinarians of Ontario, 2008 ONCA 600.