Lawsuit over Saanich washroom videos can go ahead, judge rules

VICTORIA — A proposed class-action lawsuit against the Red Barn Market at Mattick’s Farm and a former assistant manager who allegedly video-recorded employees using the washroom is moving forward.

B.C. Supreme Court Justice Brian MacKenzie lifted a stay of proceedings last week on the claim by two former Red Barn Market employees. It had been imposed when the former assistant manager, Matthew Schwabe, filed for bankruptcy on April 24, 2018.

Schwabe had a monthly deficit of $50 and his total debts amounted to $4,484.

“The very minor financial difficulty in which Mr. Schwabe found himself when he decided to file for bankruptcy three months after the plaintiffs filed their claim leads me to conclude that he is not an ‘honest unfortunate’ who should be ‘rewarded by a release of liability,’ if he is found to be responsible for capturing and disseminating the explicit images,” MacKenzie wrote in his judgment.

The former employees also asked for a court order for disclosure of documents, recordings and images from Saanich police, which was granted.

“The plaintiffs are very pleased with the court’s decision today, as it allows the case to move ahead. From the police records we hope to obtain a better understanding of how many other people were recorded,” Victoria lawyer Sean Hern said.

“And with the bankruptcy stay lifted, we are looking forward to bringing our application to certify the case as a class proceeding.”

The claim by Jennifer Burke and Mallory Colter alleges that on multiple occasions and over lengthy periods, Schwabe installed a video-recording device in the washroom near the grocery store’s produce section and recorded women when they used the toilet and in various stages of undress. The surreptitious recordings, taken between 2009 and 2014, were posted online on a revenge-porn website and paired with screenshots from the women’s Facebook pages so viewers could identify them.

The claim alleges that this is a grievous and ongoing breach of their privacy for which Schwabe is responsible. The women became aware of the images when Saanich police contacted them in February 2016. Burke was shown facial images of six other women. She recognized five as Red Barn Market employees and one as Schwabe’s former roommate.

In June 2016, Saanich police told Colter that Schwabe had been arrested for voyeurism and publication of intimate images without consent. He was released and no charges have been laid.

In January 2018, Saanich police said nine victims had been identified.