Women recorded in Saanich grocery bathroom get class-action certification

Former Red Barn Market assistant manager Matthew Schwabe secretly planted a camera in the Mattick’s Farm location women’s bathroom and took recordings between June 2012 and May 2014. A BC judge has now certified a class action claim brought against him, and against Red Barn for negligence and vicarious liability. Anyone surreptitiously videotaped or photographed by Schwabe at that location’s bathroom or staff room can now join the suit brought by Jennifer Madill and Mallory Fulmore.

The judgment allowing the suit also reveals further allegations including that Schwabe exposed himself, that a manager dismissed complaints about it, and that an owner directed advances and sexual comments at teenagers.

Schwabe, now in his mid-30s, was sentenced in Nov. 2021 to 15 months for unlawfully observing and recording victims where they would likely be nude, and publishing the images without consent.

Years of taking images of women and girls

Schwabe published the photos on a Russian porn site between Dec. 2015 and June 2016, at times pairing them with the subjects’ names or Facebook photos. A three-year investigation began in 2016 after one person found explicit images of herself online.

The sentencing established that Schwabe’s nine victims included five recorded at Red Barn, one recorded at his home, and two coworkers whose phones he stole photos from. Three were under 18 at the time. The class-action application states that there are six known workplace victims and seven others that Saanich Police have images of.

A class-action effort has been ongoing for years; it was stayed in spring 2018 when Schwabe filed for bankruptcy over just $4,484 in debt, but a judge overturned that stay in early 2019.

Depositions allege sexual inappropriateness by Schwabe, his father, and the workplace generally

The judgment released on Monday includes allegations made in depositions that paint a picture of a pattern of unchecked sexual misbehaviour by Schwabe. That included sexual comments, romantic advances (and antagonization of those who refused them), and exposing himself.

A delicatessen employee, “C.J.” in the document, deposed that Schwabe exposed himself to her and prevented her from leaving, and that the manager she reported it to not only dismissed it as “boys will be boys” but gave her phone number to Schwabe, who called her and pressured her not to report. C.J. alleged that that manager threatened to penalize C.J. for further complaints, and that escalating the issue to the GM only got C.J. reduced hours that eventually dwindled to zero.

Other deposed staff spoke of a “locker room” environment, and there were allegations that one owner commented lecherously about a 16-year-old employee. K.B. deposed that Sam Schwabe, one of four owners and the father of Matthew, made “lewd comments about younger girls” and asked for her number when he was late-40s and she was about 19.

The plaintiffs argue that all of this suggests there was a broader workplace culture that enabled Matthew—who they call a nepotistic hire—and that this culture and a sense of impunity from Matthew may have been furthered by his father. They also question whether the senior Schwabe’s 2014 departure was related to behaviour toward girls and women.

Court was unmoved by Red Barn's objections to class

The plaintiffs sought a class suit against Matthew Schwabe for violation of privacy, against Red Barn for vicarious liability for his actions, and against Red Barn for negligence. It was the role of Justice B.D. MacKenzie to determine if it was “plain and obvious” that these claims would be doomed to fail in a trial. After reading submissions from the plaintiffs and from Red Barn (nothing was submitted by Matthew Schwabe), the Justice found that this was not the case.

The plaintiffs argued that allowing an environment of sexual inappropriateness facilitated Schwabe’s later crimes; Red Barn argued it was not vicariously liable because Schwabe’s conduct was unrelated to his duties and “unknown, unauthorized, unforeseen and unforeseeable.” But the judge agreed with the plaintiffs that this argument by Red Barn was a counter suitable for an actual trial, not evidence a trial would be unwarranted.

Red Barn’s argument that the secret recordings were not sufficiently similar to the workplace sexual inappropriateness seen previously was similarly dismissed as a case to be made in trial, not proof a trial would obviously fail. The plaintiffs also argued that sexual misconduct of some kind was foreseeable and that the exact acts need not have been predicted.

Red Barn’s case against the class being a class also failed. There are six identified people certainly affected and potentially seven more based on images possessed by Saanich Police; the judge was convinced that a class action was an appropriate way to involve those seven and that they will later become identifiable rather than remaining unknowable.

With files from Jimmy Thomson

Editor's note: Sean Hern, who is representing the plaintiffs, previously represented Capital Daily and several other media companies in a court application related to access to Fairy Creek protests.