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 online.
The case promises to develop the jurisprudence in this relatively new area of the law, where courts are wrestling with the concept of digital images being uploaded on to the internet, where control is then out of the hands of the defendant and the scope of exposure can be infinite.
Many of the women represented in the class action were students, under the age of 18, at the prestigious ballet school.
They have alleged an instructor and photographer at
the school, Bruce Monk, had unsupervised photo sessions with them in which he
coaxed them to partially or completely 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 Doucet, a student at the school in the 1990s.
“Many other students have come forward and been in contact with us. They all speak of a similar experience,” says Waddell. She says images of the students continue to appear online.
“Even if the original posting 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 Susan Metzler of Miller Thomson LLP, who did not respond to requests for an interview.
There has been no court appearance so far except the order 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 envision any unusual hurdles obtaining certification.
She refers to Jones v. Tsige, 2012, ONCA 32, where a woman’s confidential bank records were accessed by her former husband’s new wife, a bank employee. 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 reasonable 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 Ballet as a civil claim under the tort “intrusion on seclusion.”
She says that the tort is still developing, particularly in determining the appropriate measure of damages for having intimate 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 judgment 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 contribution 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 decision “is that it only set aside the finding of liability and the damages.”
“It didn’t set aside the injunction that the defendant destroy any and all intimate images or recordings of the plaintiff 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.”