Ruling sees negligence, fiduciary breach, intrusion upon seclusion via clinic’s video surveillance
In a class proceeding against a plastic surgeon and his corporation, the Ontario Superior Court awarded affected patients $21.5 million in aggregate damages for the tort of intrusion upon seclusion and $1 million in punitive damages.
In November 2018, during an investigation into breast implant surgery provided by private cosmetic surgery clinics, two journalists for “Marketplace,” a CBC investigative news show, visited the Toronto Cosmetic Surgery Institute.
A Toronto-based plastic surgeon and his corporation – the defendants in J.C. et al. v. Jugenburg et al., 2026 ONSC 3061 – owned and operated this private medical clinic.
One journalist, pretending to be a patient, consulted with a nurse at the clinic. When told to take off her top for a photograph of her breasts, the journalist expressed concern about a camera she noticed on the consultation room’s ceiling. She learned there were cameras “all around” the clinic.
Marketplace alerted the College of Physicians and Surgeons of Ontario (CPSO) and the Office of the Information and Privacy Commissioner of Ontario (IPC) to the presence of the cameras. On Dec. 13, 2018, the news show released the story about the clinic’s video camera system.
That same day, the CPSO visited the clinic to turn off the camera system. The next day, the CPSO took away the digital video recorders (DVRs) with footage from the system. The CPSO began investigating the plastic surgeon’s conduct.
The IPC started a separate investigation into the clinic’s use of cameras. On Sept. 20, 2019, the IPC determined that the clinic’s blanket use of surveillance cameras for non-health purposes breached Ontario’s Personal Health Information Protection Act, 2004 (PHIPA).
In November 2019, the plaintiffs initiated an action under Ontario’s Class Proceedings Act, 1992.
On May 10, 2021, the Ontario Superior Court certified the action and allowed it to proceed on behalf of a class comprising all patients who visited the clinic from Jan. 1, 2017, to Dec. 13, 2018, during which the video surveillance system was operating.
In November and December 2025, Judge Paul B. Schabas presided over a five-week common issues trial.
The plaintiffs asserted that the plastic surgeon and his corporation – in utilizing the video surveillance system – acted negligently, breached their fiduciary duty toward patients and the trust of the class, and committed the tort of intrusion upon seclusion on the class.
The plaintiffs requested:
- aggregate damages for the tort of intrusion upon seclusion, which did not need proof of harm
- an order to set a process for fixing damages for negligence and other torts that required proof of harm
- aggravated and punitive damages
The defendants did not challenge the negligence claim, subject to proof of harm to the class members, determined individually. However, the parties disputed the proper standard of care.
The defendants denied liability for breaches of trust and fiduciary duty and the tort of intrusion upon seclusion.
The defendants alleged that aggregate damages were inappropriate because patients responded differently to the cameras when learning about them, with some feeling upset and violated and others not objecting to the cameras or expressing any difficulty with them.
Liability and damages
Judge Schabas of the Ontario Superior Court of Justice found the defendants liable for negligence, breach of fiduciary duty, and the tort of intrusion upon seclusion in operating the surveillance video system without their patients’ knowledge or consent.
“My finding that the intrusion by the defendants was ‘highly offensive’ and would reasonably cause distress, humiliation and anguish to Class Members provides a basis on which to quantify damages based on the defendants’ wrongdoing,” Schabas wrote.
However, the judge ruled that the plastic surgeon and his corporation did not breach the trust of their patients by operating the video system without their knowledge or consent.
“In my view, the defendants are correct that PHIPA does not create a trust-like relationship or otherwise impose a trust on personal health information,” Schabas wrote. “PHIPA imposes rules regarding the collection, use, and disclosure of personal health information, but it does not use the word ‘trust’ or deem a trust relationship to exist.”
The judge awarded the class $22.5 million in aggregate and punitive damages. For the other torts, which relied on proof of harm, he asked the parties’ counsel to confer and propose a process to tackle individual damages claims for negligence and breach of fiduciary duty.
Schabas noted that the clinic frequently asked patients to undress in the consultation and examination rooms. He added that the clinic had 24 surveillance cameras across the reception, waiting, workplace, and post-operative recovery areas; the staff, consultation, injection, and operating rooms; and the hallways.
Before the journalistic investigation, the clinic had one obscured sign on a shelf in the operating room and another sign in the elevator lobby outside the clinic door on level B to state that those areas were subject to video surveillance.
Schabas noted that the clinic had no other signs regarding surveillance. He added that the plastic surgeon and his staff did not tell patients about the cameras. He found that the plastic surgeon could access the footage stored on the DVRs via an application on his personal iPhone and iPad.
Margaret Waddell and Karine Bedard of Sotos LLP, Kate Mazzucco and Josh Nisker of Beyond Law LLP, and Paul Miller and Victoria Yang of Howie, Sacks & Henry LLP (HSH) acted as counsel for the plaintiffs.
“This concludes the common issues portion of the litigation, however, individual damages assessments for negligence and breach of fiduciary duty remain pending,” said HSH’s news release. “Class members are eligible to pursue further compensation through the upcoming individual claims phase if they suffered injuries or harms as a consequence of being subjected to the surveillance.”
