Judge says lawsuit against Red Barn at Mattick’s Farm and former assistant manager over washroom videos can go ahead


Mallory Colter (left) and Jennifer Burke (right) have filed a proposed class action lawsuit against Red Barn Market at Mattick's Farm and a former assistant manager at the store. File photo.

Mallory Colter (left) and Jennifer Burke (right) have filed a proposed class action lawsuit against Red Barn Market at Mattick’s Farm and a former assistant manager at the store. File photo.

A judge has ruled a proposed class-action lawsuit against the Red Barn Market at Mattick’s Farm and a former assistant manager who allegedly video-recorded employees using the store’s washroom can go ahead.

The civil claim filed by Jennifer Burke and Mallory Colter alleges that on multiple occasions and over lengthy periods, former assistant manager Matthew Schwabe recorded women using the toilet and various states of undress after he installed a video-recording device in the washroom near the grocery store’s produce section. 

The recordings were taken between 2009 and 2014, posted on a “revenge porn” website and paired with screenshots from the women’s Facebook pages so the viewers could identify them. The claim alleges Schwabe is responsible for the “grievous and ongoing breach of their privacy.”

A stay of proceedings was imposed last April after Schwabe filed bankruptcy papers, claiming a debt of $4,484.64 and a monthly deficit of $50. B.C. Supreme Court Justice Brian MacKenzie lifted that stay on Tuesday.

In his judgment, MacKenzie wrote bankruptcy is not a defence against “bodily harm intentionally inflicted.”

“In my view, on the whole of the evidence it is reasonable to infer that whoever posted the images of the plaintiffs and other proposed class members intended to cause them psychological harm,” MacKenzie wrote.

“As a result, I am satisfied that the plaintiffs’ claim against Mr. Schwabe is an action for a debt to which a discharge would not be a defence because, if successful, it would result in an award of damages for bodily harm intentionally inflicted.”

MacKenzie also wrote the “minor financial difficulty” Schwabe found himself in when he decided to file for bankruptcy three months after the claim was filed, “leads me to conclude that he is not an “honest unfortunate” who should be ‘rewarded … by a release of liability’ if he is found to be responsible for capturing and disseminating the explicit images at issue.”

Burke and Colter had alleged Schwabe filed for bankruptcy to avoid the lawsuit.

WATCH: Two women who launched a civil lawsuit against Mattick’s Farm Red Barn Market and a former employee are encouraging others to come forward. April Lawrence reports.

The two woman became aware of the images in February 2016 when Saanich police contacted them. Burke was shown facial images of six other women who were recorded without consent and had their images disseminated. Burke recognized five of the women as Red Barn Market employees and one as Schwabe’s former roommate. She also states that when Saanich police showed her the website where the images had been posted so she could flag them for removal, she recognized the bathroom of the house where Schwabe resided as the location where the explicit images of his female roommate had been taken.

Affadavit evidence filed by the two women suggests Schwabe made sexist remarks and inappropriate comments about women’s bodies in the workplace. Another former Red Barn employee said he exposed himself to her during an early-morning shift.

The women said they have suffered psychological harm, including significant anxiety.

Schwabe plaintiffs’ efforts to link him to the conduct at issue are “speculative at best.”  He concedes that the police executed a search warrant at his residence in the summer of 2016, arrested him for voyeurism and publication of intimate images, and imposed a no-contact undertaking, but maintains he is not facing any criminal charges at this time.

In January 2018, Saanich police said nine victims had been identified.

With files from Louise Dickson, The Times Colonist


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