Court File and Parties

Court File No.: CV-19-00631903-00CP Date: November 27, 2025 Superior Court of Justice

Between:

J.C. and A.C., Plaintiffs

• and –

Martin Jugenburg and Dr. Martin Jugenburg Medicine Professional Corporation, Defendants

Ruling

Before the Honourable Justice P. Schabas on November 27, 2025, at Toronto, Ontario

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 135 OF THE COURTS OF JUSTICE ACT BY ORDER OF JUSTICE P. SCHABAS, SUPERIOR COURT OF JUSTICE, DATED NOVEMBER 17, 2025

Appearances:

M. Waddell, J. Nisker, V. Yang, K. Mazzucco, P. Miller, K. Bedard, Counsel for the plaintiffs

P. Veel, N. Bombier, L. Leschynska, Counsel for the defendants

Table of Contents

Witnesses on Voir Dire

Witness	Examination In-Chief	Cross-Examination	Re-Examination

Lettered Exhibits

Exhibit Letter	Entered on Page

Numbered Exhibits

Exhibit Number	Entered on Page

Transcript Ordered: November 27, 2025 Transcript Completed: November 27, 2025 Ordering Party Notified: November 27, 2025

Thursday, November 27, 2025

Ruling

SCHABAS, J. (Orally):

This morning, the defendants called Matthew Maslow as a witness and sought to tender him as an expert in eDiscovery document collection and retention, preservation, and review processes.

Mr. Maslow is a lawyer who is a director of eDiscovery at Deloitte Canada. He has worked in the eDiscovery field supporting litigation for over 10 years, beginning with four years in the eDiscovery Group at Blake, Cassels & Graydon followed by the past nine years at Deloitte. He has been involved in collecting, reviewing, processing, electronic data in litigation in hundreds of cases. He clearly has expertise in how to do this in working with electronic databases, which is an expertise beyond most of us.

In this case, he was provided with the EMRs, or the electronic medical records, for about 400 patients of Dr. Jugenburg. In general terms he was asked to determine from those files how many patients had signed social media consent forms and to compile data from them on what the patients had or had not agreed to on those forms.

To do this, among other things, Mr. Maslow developed collection procedures and then used search terms provided to him by counsel or after some discussion with counsel. He also explained that the search terms were not always useful because many EMRs contained PDFs or other "hard" documents such as photographs, the contents of which would not be searched electronically. This raised privacy concerns as PDFs and other unsearchable documents could, and apparently did, contain confidential patient medical information, including photographs of patients, including photographs of patients in states of undress. This is not surprising as I have heard that patients were routinely photographed by Dr. Jugenburg or his medical staff to have before and after photos of the parts of their bodies that were being operated on by Dr. Jugenburg.

The review was conducted by Mr. Maslow and a small team at Deloitte. He said the team was kept small deliberately and confidentiality agreements were signed by all members of the team because of the sensitivity of the information. I am told that according to Mr. Maslow's report, following a review of over 7,000 documents, 573 social media consent forms were identified, about half of which were from hard or PDF documents that could not be searched electronically. Mr. Maslow could not say how many of the over 7,000 documents reviewed were PDFs or not searchable electronically.

Counsel for the plaintiff cross-examined Mr. Maslow on his methods and his compliance with PHIPA, the *Personal Health Information Protection Act*. It appears that no attention was given to that legislation specifically by Mr. Maslow and his team, however as I have noted, steps were taken to limit the number of people who reviewed the EMRs and to limit the information reviewed to what was necessary to find the social media consent forms.

In completing his task, Mr. Maslow and his team seemed to largely have done what they were told by counsel. Mr. Maslow used search terms which I infer were provided by counsel. For example, one term was "OR Consent", which presumably means operating room consent form. But Mr. Maslow was unaware of that meaning and he could not explain why that term was used at all. Mr. Maslow was also asked to only locate the last signed or most recent social media consent form signed by a patient found in their file, but he did not ask why saying it was beyond his scope.

Counsel for the plaintiff objected to Mr. Maslow testifying on the grounds that he was not a properly qualified expert in the sense that he is not independent and impartial. She submitted Mr. Maslow blindly followed instructions, that while he knew about PHIPA, he took no steps to ensure the team had reviewed it or knew of and complied with it, such as looking at no more than was reasonably necessary to achieve their task and that they used terms without any understanding of how the list of terms was developed.

Counsel submitted that because of the concerns now raised about the possible breach of PHIPA and the potential liability of Deloitte or others for such a breach that Mr. Maslow would lack impartiality in providing evidence.

In the course of the submissions, I raised with counsel whether Mr. Maslow's proposed evidence is expert evidence at all. Counsel for the defendants agreed that much of it could, in fact, be fact evidence as Mr. Maslow is not really expressing an opinion but simply explaining steps that he took and what data he was able to extract from taking those steps in reviewing the data provided.

I was ultimately shown a spreadsheet which forms the gist of Mr. Maslow's proposed evidence, which lists the files and indicates whether patients signed social media consent forms, and which also indicates what the patient agreed to or not on those forms as the forms, as I have seen in this trial, give the patients options on what they are consenting to and the limits of their consent.

Counsel for the defendants submitted that to the extent the data results from Mr. Maslow's work he is applying expertise, in that he knows how to get this data, so that, as Mr. Veel put it, the data is informed by or results from his expertise. But counsel also agreed with my proposition that the data is ultimately just that, data, presented as a factual review of the files, not opinions about the data.

Counsel for the plaintiffs agreed that the data comes from Mr. Maslow's methodology, which is, in part, based on his expertise. She also advised me that answers on some of the consent forms may have been ambiguous and required interpretation by Mr. Maslow or his team in how that answer was reflected on the spreadsheet.

In my view, much, if not all, of the proposed evidence is factual evidence. Mr. Maslow was asked to review the EMRs and determine how many patients signed social media consent forms. That is a factual task. He was also asked to summarize what those social media consent forms said. Again, summarizing facts. These tasks do not require special expertise. Any one of us could review the EMRs to find the forms, count them, and summarize them. The expertise Mr. Maslow has is in his ability electronically to streamline the process. That methodology may be questioned and challenged, just as someone else's review of the files and their ability to count, for example, may be questioned in order to challenge the accuracy of their conclusion. For example, one could question how carefully one looked at the files or how they tabulated their counting, but at the end of the day, this is factual evidence, not opinions.

The same can be said for the summaries of the answers. Mr. Maslow certainly has no special expertise in interpreting ambiguous answers on consent forms, and it is open to the plaintiffs to challenge his interpretation for any or all of the social media consent forms summarized on his spreadsheet.

I find, therefore, that to the extent Mr. Maslow's evidence is factual evidence, as I have found above, he is not therefore providing opinion evidence which would be presumptively inadmissible. Should counsel seek to lead any opinion evidence from him, or a concern is raised that his evidence crosses the line into opinion evidence, then the matter can be revisited, but in light of my conclusion it is not necessary to address the partiality or other arguments that were raised by the plaintiffs that might have disqualified his evidence.

However, the topics in the cross-examination on the voir dire and any examination or cross-examination on those issues yet to come may be relevant to the value of the evidence presented by Mr. Maslow or may be relevant to other issues in this trial.

...END OF EXCERPT

Electronic Certificate of Transcript

FORM 3 Evidence Act, Subsection 5(2)

I, Leanne Osborne, certify that this document is a true and accurate transcription of the recording of J.C. and A.C. v. Dr. Martin Jugenburg et al in the Superior Court of Justice held at Toronto, Ontario taken from Recording No 4899_330U-5-1_20251127_084011__10_SCHABAPAU which has been certified in Form 1.

November 28, 2025

(Date) (Electronic Signature of authorized person)

4390714425

(ACT identification number)

Ontario, Canada

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.