Case Name:

Fehringer v. Sun Media Corp.

PROCEEDING UNDER the Class Proceedings Act, 1992

Between

Vanessa Fehringer, plaintiffs, and

Sun Media Corporation, Sun Media (Toronto) Corporation and

Toronto Sun Publishing Corporation, carrying on business as

The Toronto Sun and Norm Betts, also known as Norman Betts,

defendants

[2002] O.J. No. 4110

[2002] O.T.C. 805

27 C.P.C. (5th) 155

118 A.C.W.S. (3d) 16

Court File No. 00-CV-183721

 Ontario Superior Court of Justice

Nordheimer J.

Heard: October 16, 2002.

 Judgment: October 28, 2002.

(39 paras.)

Practice -- Persons who can sue and be sued -- Individuals and corporations, status or standing -- Class actions, certification, considerations.

Motion by Fehringer to certify the action as a class proceeding. Betts was employed over a period of many years by the Sun newspaper as a photographer. The plaintiffs alleged that Betts used his position to force members of the proposed class to pose nude or topless and to be subjected to lewd comments and suggestions as well as other inappropriate behaviour. The class was defined as all persons who claimed to have been subject to the conduct. Fehringer argued that the action satisfied the five-part statutory test for certification, including that the claims of the class members raised common issues.

HELD: Motion dismissed. It would be virtually impossible to embark on a trial of the common issues until the facts forming the basis for all of the individual claims had been presented. It was therefore impossible to make a blanket determination of the liability of any of the defendants without first engaging in an individual examination of the specific events underlying each claim. Fehringer therefore failed to establish that the resolution of the common issues would sufficiently advance the litigation, or, indeed, that their resolution was even possible without first determining the individual facts surrounding each claim.

Statutes, Regulations and Rules Cited:

Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5(1), 5(1)(e).

Ontario Rules of Civil Procedure, Rules 21, 76.

Counsel:

Raymond G. Colautti and Jeffrey Raphael, for the plaintiff.

Paul Tushinski, for the defendants, Sun Media Corporation, Sun Media (Toronto) Corporation and Toronto Sun Publishing Corporation.

Lois B. Roberts, for the defendant, Norman Betts.

1 NORDHEIMER J.:-- The plaintiff moves to certify this action as a class proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6.

2     The claims made by the plaintiff arise out of the alleged actions of the defendant, Betts, while he was employed by the Sun defendants as a photographer for the Toronto Sun newspaper. That newspaper includes, as a daily aspect of its publication, pictures of women referred to as "Sunshine Girls". It is alleged that over a period of many years, Mr. Betts used his position, as a photographer assigned to photograph women who wished to be selected as Sunshine Girls, to force the members of the proposed class to pose nude or topless and to be subjected to lewd comments and suggestions as well as other inappropriate conduct.

3     The proposed class is defined in paragraph 5 of the statement of claim in the following terms:

"All persons who claim to have been subject to harassment, intimidation, breach of privacy and inappropriate contact, behaviour, conduct and remarks during photographing sessions with the Defendant, Betts, while Betts was an employee, agent, dependant contractor or representative of The Sun."

4     The conduct complained of regarding Mr. Betts is said to have occurred as earlier as 1971 and to have continued through to the early part of 2000 when he resigned his position with the Sun defendants. It is unknown how many women may have been subjected to the alleged conduct. In the plaintiff's affidavit filed in support of this motion, she estimates that Mr. Betts would have photographed approximately 2,500 persons during his time and from that number states that it is "possible" that approximately 15% of those persons, or 375 persons, would fall within the class definition. It is admitted that this calculation is nothing more than a guess. What is known is that approximately 50 persons have contacted counsel for the plaintiff and have indicated that they had like experiences involving Mr. Betts.

5     It is asserted by the plaintiff that Mr. Betts occupied a position of power, authority and trust over the members of the proposed class and that he used that position to carry out the alleged improper activities. It is further asserted that the Sun defendants placed Mr. Betts into that position and are therefore liable for his actions arising from his abuse of that position. It is also asserted that the Sun defendants owed a duty of care to the members of the proposed class because the members of the proposed class are said to have been particularly vulnerable to inappropriate conduct given they were all young women at the time of the alleged events. It is also asserted that the Sun defendants are liable on the basis of systemic negligence arising from the failure of the Sun defendants to have proper procedures or controls in place to prevent such improper activities as well as from the failure of the Sun defendants to take action as complaints continued to be received by them regarding the activities of Mr. Betts.

6     The plaintiff claims damages on behalf of the proposed class in the amount of $10 million as well as punitive, exemplary and aggravated damages in the amount of $10 million.

7     Paragraph 35 of the Statement of Claim states, inter alia, that the members of the proposed class have undergone and will continue to undergo in the future, therapy, rehabilitation, hospitalization and other forms of medical treatment and medication. However, the defendants point out that at her cross-examination, the plaintiff acknowledged that at no time had she ever received therapy, rehabilitation, hospitalization, medical treatment and/or medication as a result of the alleged conduct of Mr. Betts towards her. The plaintiff also acknowledged that the individuals, who have, to date, indicated their interest in being class members, each have different stories to relate regarding their experiences with Mr. Betts. The plaintiff also admitted that the various alleged incidents involving Mr. Betts occurred both on and off Toronto Sun property.

Analysis

8     In order to have an action certified as a class proceeding, the plaintiff must satisfy the requirements of section 5(1) of the Class Proceedings Act, 1992 which requires that (a) the pleadings disclose a cause of action; (b) there is an identifiable class of two or more persons that would be represented by the representative plaintiffs; (c) the claims of the class members raise common issues; (d) the class proceeding would be the preferable procedure for the resolution of the common issues; and (e) the representative plaintiffs (i) would fairly and adequately represent the interests of the class, (ii) have produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and (iii) do not have, on the common issues for the class, an interest in conflict with the interests of the other class members. While the defendants principally dispute the common issues and preferable procedure requirements, since they raise issues with respect to each of the requirements, I will deal with all five requirements.

9     Before turning to the individual requirements, I wish to mention that substantial time was spent in the various parties' facta, and in their submissions at the hearing of the motion, dealing with the merits of the claims advanced. I have specifically avoided reciting the details of the alleged incidents, or addressing the submissions as to the strength or weaknesses of the claims advanced, because it is clear that on a certification motion the merits of the claims are not to be measured. As Chief Justice McLachlin said in Hollick v. Toronto (City) (2001), 205 D.L.R. (4th) 19 (S.C.C.) at para. 16:

"Notwithstanding the recommendation of the Ontario Law Reform Commission, Ontario decided not to adopt a preliminary merits test. Instead it adopted a test that merely requires that the statement of claim disclose ... a cause of action': see Class Proceedings Act, 1992, s. 5(1)(a). Thus the certification stage is decidedly not meant to be a test of the merits of the action: [citations omitted]".

A. Cause of action

10     This case is somewhat unusual on the issue of whether there is a cause of action disclosed by the statement of claim. The statement of claim pleads causes of action in negligence, fiduciary duty, misrepresentation and breach of contract. Earlier in this action, on a Rule 21 motion brought by the defendants, Mr. Justice Cumming struck out the claim for fiduciary duty. That decision was appealed to the Court of Appeal who reversed the decision - see Fehringer v. Sun Media Corp., [2002] O.J. No. 2919 (C.A.). In his endorsement, Chief Justice McMurtry said, at para. 2:

"In our view, the cause of action for fiduciary duty is sufficiently pleaded in the statement of claim and the particulars supplied, and it cannot be said to be plain and obvious that that claim must fail at trial."

11     The Court of Appeal's decision is a clear finding that the statement of claim discloses a cause of action for breach of fiduciary duty. From my review of the statement of claim, the other causes of action are also sufficiently pleaded, at least for the purposes of the requirements of that subsection. Therefore the requirement of section 5(1)(a) is met.

B. Identifiable class

12     In terms of an identifiable class, I find the current definition of the proposed class to be problematic because it is overly broad. The class definition includes any person who claims to have been subject to inappropriate conduct of Mr. Betts regardless of whether that conduct is related to his employment by the Sun defendants. In other words, if Mr. Betts was involved in the type of conduct alleged against him outside of his position as a Toronto Sun photographer, persons subject to that conduct would be part of the proposed class notwithstanding that there would appear to be no basis in such circumstances for any claim against the Sun defendants.

13     Problems with the proposed class definition were addressed by Chief Justice McLachlin in Hollick v. Toronto (City), supra, where she said, at para. 21:

"There must be some showing, however, that the class is not unnecessarily broad - that is, that the class could not be defined more narrowly without arbitrarily excluding some people who share the same interest in the resolution of the common issue. Where the class could be defined more narrowly, the court should either disallow certification or allow certification on condition that the definition of the class be amended: [citations omitted]" [original emphasis].

14     While I accept that it might be possible to amend the class definition to address this issue, because of the view I take regarding the other requirements under the Act, that is not the appropriate option to follow in this case.

C. Common issues

15     The common issues as set out at para. 44 of the plaintiff's factum are as follows:

(a) Were the Defendants negligent, in breach of their duty of care and/or in breach of their fiduciary duty in failing to take reasonable steps or measures in the operation or management of The Sun to protect class members from harassment, intimidation, breach of privacy and inappropriate contact, behaviour, conduct and remarks during photography sessions?

(b) Is The Sun vicariously liable for the actions of Betts?

(c) Is The Sun liable to the Class members by virtue of being the owner and/or operator of the premises in which the harassment, intimidation, breach of privacy and inappropriate contact, behaviour, conduct and remarks, occurred?

(d) What information or knowledge did the Defendants have regarding the harassment, intimidation, breach of privacy and inappropriate contact, behaviour, conduct and remarks occurring to Class members and when was it available to them or reasonably available to them?

(e) Were the defendants so negligent, reckless and/or guilty of conduct that justifies an award of punitive damages?

(f) Did the defendants make negligent, reckless and/or fraudulent misrepresentations regarding the nature and safety of their photography sessions and of being a Sunshine Girl?

16     The question on a motion for certification is whether the resolution of the proposed common issues is going to move the litigation forward to a sufficient degree so as to justify the certification of the action as a class proceeding. In reaching a conclusion on this requirement, the court will necessarily need to engage in an examination of the significance of the common issues in relation to any individual issues. Usually the concern under this requirement is whether significant individual issues will be left to be decided after the common issues are decided such that the conclusions on the common issues do not substantially advance the overall determination of liability. In this case, however, my concern is that it is virtually impossible to embark on a trial of the common issues until the facts which form the basis for all of the individual claims have been presented.

17     Put another way, it is simply not possible to make a blanket determination of the liability of any of the defendants without first engaging in an individual examination of the specific events which underlie each member's claim. That such an individual examination needs to be made regarding the liability of Mr. Betts is self-evident. What he may or may not have done in respect of each putative class member, where and in what circumstances, the response of the person and other like matters would need to be known to determine any liability of Mr. Betts to that individual. Indeed, one will notice from a review of the proposed common issues that they do not actually address Mr. Betts' liability to any member of the proposed class, except in relation to the issue of punitive damages. However, without knowing the specifics of the conduct between Mr. Betts and each individual member of the proposed class, I do not see how one could proceed to determine the potential liability of the Sun defendants. Any conclusion regarding vicarious liability requires an examination of what happened, where it happened, when it happened, the state of the knowledge of the Sun defendants at the time of the occurrence and like matters.

18     The issue of an employer's liability for the sexual misconduct of an employee was extensively canvassed in Bazley v. Curry (1999), 174 D.L.R. (4th) 45 (S.C.C.). It is apparent from a review of that decision that the determination of vicarious liability is very much fact driven. As Madam Justice McLachlin said, at para. 46:

"In summary, the test for vicarious liability for an employee's sexual abuse of a client should focus on whether the employer's enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm. The test must not be applied mechanically, but with a sensitive view to the policy considerations that justify the imposition of vicarious liability -- fair and efficient compensation for wrong and deterrence. This requires trial judges to investigate the employee's specific duties and determine whether they gave rise to special opportunities for wrongdoing. Because of the peculiar exercises of power and trust that pervade cases such as child abuse, special attention should be paid to the existence of a power or dependency relationship, which on its own often creates a considerable risk of wrongdoing. [emphasis added]

19     I also question how the court could determine the issue of systemic negligence without knowing the particulars of the incidents complained of. Put another way, it would be difficult to determine whether the management and operational procedures of the Sun defendants were, or were not, adequate to deal with the possibility of such conduct occurring without knowing what the conduct was, where it occurred, when it occurred, how it occurred, whether it was reported to these defendants and, if it was, what steps, if any, were taken as a consequence.

20     This is not a case like Rumley v. British Columbia (2001), 205 D.L.R. (4th) 39 (S.C.C.) upon which the plaintiff relies as a case similar to hers. In Rumley, the existence of the abuse committed on the class members was already established through two separate government reports. The issue then became, given that abuse had occurred, whether the school had failed to have in place and to follow proper procedures in order to protect the children for whom, it was not disputed, the school had responsibility. As Chief Justice McLachlin said, at para. 36:

"There is no dispute that abuse occurred at the school. The essential question is whether the school should have prevented the abuse or responded to it differently. I would conclude that the common issues predominate over those affecting only individual class members."

21     Here, however, the individual issues are front and centre. Each individual member of the proposed class will have to establish the fact that she was subjected to improper conduct, when it occurred, where it occurred and so on. It may be that issues of consent will arise in some cases. Without knowing all of these specifics, I fail to see how any conclusion could be reached with respect to whether the Sun defendants should have prevented the abuse, assuming abuse occurred, or whether they ought to have responded in a different fashion.

22     Furthermore, many of the individuals' claims will give rise to individualized defences. Principal among those is the application of limitation periods. Certain of the causes of action are subject to a six year limitation period whereas others are subject to a four year limitation period. Still others, notably breach of fiduciary duty, are not subject to a limitation period at all. Insofar as limitation periods do apply, since the principle of discoverability is to govern the application of all limitation periods¹, to respond to such defences for each class member, there will have to be inquiries as to the knowledge of the class member in terms of the impact or harm on her arising from the conduct to which she may have been subjected and the time she became aware of same. As Mr. Justice Haines observed in M.C.C. v. Canada (Attorney General), [2001] O.J. No. 4163 (S.C.J.), at para. 74:

"The limitations and laches defences also make these claims difficult, if not impossible to deal with in common. This action was commenced long past the prescription dates that would apply to the claims arising from the allegations of negligence .... To the extent any such claims may be saved by the discoverability rule, there will have to be an independent inquiry conducted of each member of the class to determine if they took action within a reasonable time once they were aware of the harm and its likely cause."

23     Again, such defences can only be resolved through an individual examination of each person's particular circumstances. Indeed, the plaintiff concedes that this is so.

24     It is clear that if this action was certified as a class proceeding it would quickly break down into an individual assessment of each proposed class member's particular circumstances. As Chief Justice McLachlin said in Rumley v. British Columbia, supra, at para. 29:

"There is clearly something to the appellant's argument that a court should avoid framing commonality between class members in overly broad terms. As I discussed in Western Canadian Shopping Centres, 201 D.L.R. (4th) 385, supra, at para. 39, the guiding question should be the practical one of whether allowing the suit to proceed as a representative one will avoid duplication of fact-finding or legal analysis'. It would not serve the ends of either fairness or efficiency to certify an action on the basis of issues that are common only when stated in the most general terms. Inevitably such an action would ultimately break down into individual proceedings. That the suit had initially been certified as a class action could only make the proceeding less fair and less efficient."

25     Here it is not so much that the common issues are stated in overly broad terms. Rather, the problem in this case is created by the fact that, whatever common issues can properly be stated, they cannot be determined absent a prior examination of all of the individual inquiries. If this action were to be certified as a class proceeding on the basis of the common issues proposed by the plaintiff, it would be equivalent to putting the cart before the horse. The court would be asked to determine both vicarious liability and systemic negligence either in a factual vacuum or an individual examination of each claim would have to be undertaken which defeats the very purpose of a class action.

26     The common issues requirement is therefore not met.

D. Preferable procedure

27     The overall approach to this requirement must be guided by the three accepted goals of a class proceeding: judicial economy, access to justice and behaviour modification.

28     If the issues raised by this action could be dealt with on a common basis, then the goal of judicial economy could be accomplished by certifying this action as a class proceeding. However, as I have said above, it cannot be dealt with on that basis.

29     In terms of access to justice, there is no evidence before me that any of the members of the proposed class are not able to pursue their claims on an individual basis. There is a suggestion that some members of the class are unwilling to pursue individual actions because they do not wish to reveal their identities to the defendants. In my view, that is not a proper basis on which to certify a class proceeding. Class actions should not be used for the purpose of cloaking members of the plaintiff class with anonymity. It is also not a practical objective. At some point, all members of the class are going to have to identify themselves because they will have to prove their individual claim to damages. Whatever concerns there are by putative class members with respect to revealing themselves to the defendants appear to arise irrespective of the mode of proceeding utilized.

30     The basic claims here, while serious, are not particularly complex. They involve each claimant getting into the witness box and giving evidence as to what happened to them. There would not appear to be any appreciable documentary evidence that would attach to the plaintiff's claims, at least with respect to the liability issues. In addition, the vast majority, if not all, of these claims in terms of quantum of damages would likely fall either within the jurisdiction of the Small Claims Court or under the simplified rules procedure established by Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Both of these options are designed to make the determination of claims expeditious and inexpensive. Given these facts, the prosecution of each individual claim would not appear to be a costly proposition. Certainly, there is no evidence before me to the contrary. It would appear, therefore, that the members of the proposed class have a viable alternative way of pursuing their claims if they wish to do so. The denial of certification is not, consequently, a denial of access to justice.

31     Finally, on the issue of behaviour modification, I accept that that objective would be satisfied by a class proceeding. The failure of employers to supervise the activities of their employees in respect of the type of allegations made here clearly raise very serious concerns. However, that objective, by itself, cannot justify certification.

32     I have on other occasions remarked that the requirement of preferable procedure is very much bound up with the requirement of common issues. At the risk of repeating myself, if this were a situation where the principal claims of the proposed class members could be dealt with on a common basis, then I would be satisfied that a class proceeding would be the preferable procedure for so doing. For the reasons I set out when dealing with the common issues requirement, that is not this case, however.

E. Representative Plaintiff

33     There are three separate considerations in section 5(1)(e) of the Act under this final requirement for certification. It must be demonstrated that the representative plaintiff (i) would fairly and adequately represent the interests of the class, (ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and (iii) does not have, on the common issues for the class, an interest in conflict with the interests of the other class members.

34     The defendants' challenge the representative plaintiff's ability to fund the prosecution of this action if it is certified as a class proceeding. They contend that there is no evidence before the court that the representative plaintiff has the necessary funding in place to finance the litigation.

35     I have earlier held that the court must be satisfied as to the financial ability of the representative plaintiff to bear the expense that is necessarily involved for the proper prosecution of a class action - see Pearson v. Inco Limited, [2002] O.J. No. 2764 at para. 140. There is no evidence from the plaintiff on this point. There is no evidence regarding her financial resources to fund this litigation nor is there evidence of any other arrangements which have been made to cover the expenses associated with the litigation if it moves forward as a class proceeding. The absence of such evidence leaves the court without an essential element necessary to conclude that the proposed representative plaintiff would fairly and adequately represent the interests of the class. While I could adjourn the motion to permit such evidence to be filed, because of the other problems I have found with this action being certified as a class proceeding, I decline to follow that route.

36     On the second consideration, the defendants raise various objections to the litigation plan. Some of the objections, I must say, are fairly vague in their terms and others are ones that could be addressed at a later date. The fact is that the representative plaintiff has set out a reasonably detailed and workable plan for the conduct of the litigation. There is one issue raised by the defendants, however, that is problematic with respect to the litigation plan. The plaintiff proposes that referees will be appointed to deal with the assessment of the damages of the class members and to determine "any other individual issues (including whether a claimant falls within the class definition)". Even assuming for the moment that the individual issues could be dealt with after the common issues (and I have already made it clear that they cannot), it would be inappropriate to have appointed referees to determine such issues. In this case, the individual issues raise significant matters. Their determination cannot be delegated to another party. While again I could adjourn the motion to permit the plaintiff to amend the litigation plan, I am not inclined to do so. The litigation plan is an essential element of the certification process and ought to be adequately addressed in the first instance. In this case, the flaw that has been identified in the litigation plan is fundamental and one which would, by itself, be a sufficient reason to deny certification.

37     On the third consideration, the defendants assert that Ms. Fehringer may have a conflict with other class members because of her particular factual situation including that she did not receive any treatment of the type for which damages are sought in this proceeding. The fact of the matter is that in most class proceedings the damages to which individual class members are entitled are likely going to vary greatly. I am not satisfied that that is a sufficient reason to find that a representative plaintiff may be in a conflict with other class members. What is potentially problematic is that this representative plaintiff may, because of her specific dealings with Mr. Betts and her conduct thereafter, have a weaker claim on the merits than other class members might have. This fact could put her in conflict with other members in terms of the conduct of the litigation. I do not have to resolve whether that possible conflict should itself result in the denial of certification because of the conclusion I have reached regarding the common issues. It does serve to highlight, however, the very individualistic nature of the claims of the proposed class members.

Conclusion

38     I am not satisfied that the plaintiffs have established that the resolution of the common issues will sufficiently advance the litigation or, indeed, that their resolution is even possible without first determining the individual facts surrounding each claim. The motion for certification is therefore dismissed.

39     If the parties cannot resolve the issue of costs, they may make written submissions on the appropriate disposition. The defendants' submissions are to be filed within 10 days of the release of these reasons and the plaintiff's response is to be delivered within 10 days thereafter. No reply submissions are to be filed without leave. The submissions should include the necessary bill of costs or equivalent information that will allow me to fix the costs of the motion should I decide that costs are to be awarded. That material shall include, among other things, a proper bill of costs or equivalent together with time summaries or actual time entries and receipts for all disbursements claimed.

cp/e/nc/qlgkw/qlkjg

1 See Peixeiro v. Haberman, [1997] 3 S.C.R. 549.