The B.C. Supreme Court has certified a class action lawsuit against a former Saanich, B.C., grocery store assistant manager and the business he worked for.
Matthew Schwabe was sentenced to 15 months in jail and two years of probation in 2021 for secretly recording women in the bathroom and employee change room of Red Barn Market at Mattick’s (RBM), then publishing the images on a pornography website.
Two former employees of the market, referred to as JM and MF in Justice Brian MacKenzie’s ruling, took the matter to Saanich police in 2016. Investigators discovered at least six other potential victims, leading to Schwabe’s eventual arrest.
They subsequently launched a proposed class-action suit against Schwabe for breach of privacy, and against RBM for vicarious liability over Schwabe’s behaviour as well as negligence.
Both plaintiffs, who started working at the market as teenagers, allege Schwabe directed inappropriate and sexualized behaviour at them and other female employees, including asking them on dates and becoming aggressive and rude when he was rebuffed.
They also filed an affidavit from another female employee, named as CJ, who alleges Schwabe exposed his penis to her and blocked her exit when she tried to walk away.
The employee alleged that when she reported the incident to the market’s deli manager he was dismissive, telling her “boys will be boys,” and then gave Schwabe her phone number, which he used to call her and try to convince her not to report the incident.
CJ alleges she escalated the matter to the business’s general manager, whose only response was to systematically reduce her shifts over the following year until she was removed from the schedule.
In another affidavit, an employee dubbed KB alleges RBM co-owner Samuel Schwabe, Matthew’s father, asked for her phone number and suggested they ” text outside of work hours and maybe hang out,” and further described a “a sexualized environment”, with the owners and male managers “commenting on young women’s bodies and generally making sexualized remarks.”
In this context, the women claim that RBM failed to identify that Matthew Schwabe presented a risk of sexual misconduct, and failed to take steps despite having reason to know his conduct and “the overall workplace environment gave rise to a serious risk of sexual misconduct to female employees, ‘that could manifest in a wide range of foreseeable potential incidents, including voyeurism.'”
According to the ruling, Matthew Schwabe declined to respond to the action or participate in any way.
RBM, however, disputed that it could be held liable for Schwabe’s action, arguing he had a clear and specific job description and that secret videotaping was “not an essential part of Matthew Schwabe’s job, nor was it a necessary part of RBM’s operation.”
The company further argued that there is no legal precedent where “the courts have recognized a duty of care owed by a business to someone whose privacy was breached through secret recordings made in a bathroom on the business’s premises.”
And it argued there is no evidence “that anyone at RBM ought to have foreseen Matthew Schwabe would engage in such pre-meditated and calculated acts and breach the plaintiffs’ privacy.”
In his ruling, MacKenzie noted that he was not trying the case on its facts, but merely assessing whether the application met the test to be certified as a class action.
In doing such, he found that it was not “plain and obvious” that the women’s allegations were “doomed to fail” and that their case was properly pled and supported by evidence.
“In the end, I am persuaded certification will provide all class members with access to a fair and manageable hearing, a just and effective remedy if their claims are established and is preferable to multiple individual actions, whether or not they are joined or consolidated,” he ruled.
Global News has requested comment from Red Barn Market.
No trial date has been set for the class-action suit.
None of the suit’s allegations have been proven in court.