Even the deceased cannot hide from a class-action lawsuit

By Tony Poland, LegalMatters Staff • Filing a lawsuit against a deceased defendant is not necessarily an impediment to seeking justice, as a proposed class action against a massage therapist who died in 2019 demonstrates, says Toronto class-action lawyer Tina Q. Yang.

Yang, associate litigation lawyer with Waddell Phillips Professional Corporation, pointed to the case of two New Brunswick women who say they will be representatives for a potential class-action lawsuit against the estate of the therapist and the clinic that employed him. 

According to CBC, it is alleged a therapist videotaped more than 100 women and minors in various states of undress during his career at the clinic. The man left the clinic in 2017 and died two years later. After his death, the executor of his estate found the videotapes and took them to police, who began contacting the people on the recordings.

The clinic owner is also named in the proposed lawsuit. He died in 2020, CBC reports. The class action has yet to be certified.

Yang, who is not involved in the case but comments generally, tells LegalMattersCanada.ca that there is nothing legally stopping a plaintiff from trying to seek justice even after the target of a lawsuit has passed away.

‘A host of interesting evidentiary questions’

She says in this case, “there are a host of interesting evidentiary questions.”

“Obviously the existence of the tapes is very distressing. There may be certain implications concerning the therapist’s possession of the tapes,” says Yang. “The mere fact that he had possession of those videos could give rise to some liability, regardless of whether he was the one who took the videos, but the case would be stronger if there was evidence that it went beyond simple possession to having viewed or taken the videos.”

What Yang says she finds curious is that there have been no reports of a government regulator being called in to probe the case.

“For example, if this happened to a client of mine, I would have them report the breach to the Information and Privacy Commissioner, whose office has investigative powers under the Nova Scotia Personal Health Information Act,” she says. “Typically, there would be a report detailing what the investigation found and whether the alleged breaches were well founded.

“I would have thought that there would have been some sort of regulatory finding in this case, at least a few years down the line.”

Litigating a single claim can be cost prohibitive

Class actions can be effective in helping those whose privacy rights have been violated, as litigating a single claim can be cost prohibitive while the expense of proving a case involving a large group of plaintiffs can be shared. Yet class actions can have limitations, Yang says, especially in cases where the possibility of receiving a limited monetary settlement exists. 

“One of the tricky things with class actions is you cannot really do them just for the principle. The resources required to move a class action forward can often be substantial. Because the vast majority of class actions in Canada proceed on a contingency basis, lawyers will foot the bill on the premise that there will be a class-wide recovery so that the case makes economic sense.” she says. “This case may end up being a good example of where, unfortunately, there might be a wrong without a remedy.

“It may be legally possible for these plaintiffs to continue pursuing their case despite the deaths of the defendants, but even if these plaintiffs are successful on the merits of their case, they might still be left with no ability to recover any award because the defendants are deceased. Then, if they are proceeding on a contingency basis, ultimately it would be the plaintiffs’ lawyers who end up on the hook for what it costs to come to a resolution,” Yang adds. “Without the ability to recover damages, which makes it feasible for counsel to pursue the claim on behalf of the class without getting paid, then the plaintiffs and the class are stuck in a difficult situation.”

Being unable to move forward with claim can be difficult

Being unable to move forward with a privacy violation claim can be difficult for the victim and not just because of the lack of a financial award, she says.

“A major component of the damage caused by this type of violation is the feeling of uncertainty that victims experience from not knowing who has seen their images, or where the images might end up,” says Yang. “If the case does not move forward, and without any publicly available regulatory findings, it is likely that questions about the extent of what happened will never be answered.

“Potentially, you have a whole class of people out there who know that something happened with their private images. But they may never get to know exactly what happened, if the case does not proceed,” she adds. “It is possible that there will never be a factual resolution that can bring some sort of closure to the class members.” 

Yang says cases such as these are “frustrating because victims are left with a long-term sense of violation.

“They are looking for answers and might never get them. It is a difficult thing to deal with,” she says. “In this case, I hope some sort of investigation takes place so that as much information as possible can be gleaned about how this all happened, for the sake of those whose privacy was violated.

“Unfortunately, there are some secrets that people do take with them to the grave.”

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