British Columbia Supreme Court Certifies Privacy Class Action Seeking To Hold Employer Vicariously Liable For Employee’s Misconduct

On March 13, 2023, the British Columbia Supreme Court (the Court) issued its decision in Burke v Red Barn at Mattick’s Ltd, 2023 BCSC 367, certifying a class action lawsuit against an assistant manager at the grocery store, Red Barn at Mattick’s Ltd (RBM,) for breach of privacy, and against RBM for negligence.

The facts underlying this action are not in dispute.  While employed as an assistant manager at RBM, Matthew Schwabe (the Defendant) secretly took photographs of the proposed class representatives, Jennifer Madill and Mallory Fulmore (collectively, the Plaintiffs) in a state of undress or semi-undress while using the washroom or staff room at RBM, then uploaded those images to pornographic websites.  The Defendant pled guilty to criminal charges.

This decision dealt with the Plaintiffs’ motion for class certification for an action based on the tort of breach of privacy under section 1 of the Privacy Act.  The Plaintiffs argued that the claim, as pleaded, satisfied the elements of the tort, namely, that the Plaintiffs had a reasonable expectation of privacy in the RBM washroom and staff room, and that the Defendant violated that reasonable expectation by secretly recording them.

The Plaintiffs also claim that RBM should be vicariously liable for the Defendant’s invasion of their privacy.  On the issue of negligence, the Plaintiffs claim that RBM management knew or ought to have known about the Defendant’s “inappropriate sexualized conduct” at the RBM workplace.

In response, RBM argued that the Plaintiffs’ pleadings did not disclose a cause of action, and that there is no basis to find it vicariously liable since the Defendant’s actions were unforeseeable, and because the type of harm suffered by the Plaintiffs was not reasonably foreseeable.

The Plaintiffs argued that “structural elements” in the employment relationship supported the Defendant’s ability and opportunity to engage in the misconduct and created the required nexus between the harm suffered and RBM.  The structural elements included that (i) the Plaintiffs were vulnerable teenage employees at the time; (ii) the Defendant was the son of one of RBM’s owners; and (iii) the workplace culture at RBM “effectively normalized and arguably encouraged inappropriate sexualized behaviour”, particularly when considering the misogynist atmosphere allegedly tolerated by ownership.

The Court was satisfied that the Plaintiffs demonstrated that the cause of action for vicarious liability was properly pled and supported by the presented evidence. The Court agreed that RBM’s submissions on the issue went beyond the plain and obvious test applicable at the class certification stage.

In considering the requirements for certification, the Court found that: (1) the Plaintiffs’ pleadings disclosed a reasonable cause of action; (2) there was some basis in fact to conclude that there was an identifiable class of two or more persons; (3) there was some basis in fact for the claims of the class members raising common questions of law or fact; (4) a class proceeding was the preferable procedure for the just and efficient resolution of the common questions in this action; and (5) the Plaintiffs were representatives who would fairly and adequately represent the interests of the class and had satisfied certain conditions.

Summary By: Sharan Johal