Executive Summary: Key Legal and Evidentiary Issues

• Dr. Martin Jugenburg and his professional corporation operated a 24-camera surveillance system throughout the Toronto Cosmetic Surgery Institute — including consultation rooms, treatment rooms, and an operating room — without patients' knowledge or consent from January 1, 2017 to December 13, 2018.
• Certified as a class proceeding on May 10, 2021, the action was brought on behalf of all patients who attended the Clinic during the Class Period, with common issues tried before Schabas J. in November and December 2025.
• Negligence was conceded by the defendants, though the parties disputed the applicable standard of care; the court found that the standard required no cameras in private patient areas unless medically necessary and expressly consented to.
• Breach of fiduciary duty was established on the basis that the defendants placed their own self-interest above the interests of vulnerable patients by installing and operating the surveillance system without disclosure.
• The tort of intrusion upon seclusion was made out on all three elements: the defendants conducted an unjustified invasion of private affairs, acted intentionally or recklessly, and the intrusion was one a reasonable person would regard as highly offensive.
• Aggregate damages of $21,500,000 were awarded for intrusion upon seclusion, together with $1,000,000 in punitive damages; individual claims for negligence and breach of fiduciary duty remain to be determined.

Facts of the case

The Toronto Cosmetic Surgery Institute (TCSI), a private cosmetic surgery clinic owned and operated by Dr. Martin Jugenburg and his professional corporation, was located on two levels of the Fairmont Royal York Hotel in downtown Toronto. On December 13, 2018, a CBC Marketplace broadcast revealed the existence of a surveillance camera system at the Clinic after two journalists attended in November 2018, one posing as a patient. That same day, the College of Physicians and Surgeons of Ontario (CPSO) attended the Clinic and disabled the camera system; the following day, the CPSO removed the digital video recorders (DVRs) containing the footage and commenced an investigation into Dr. Jugenburg's conduct.

It was subsequently confirmed, and was not disputed, that the Clinic had 24 surveillance cameras located in reception and waiting areas, hallways, a staff room and workspace, consultation and injection rooms, the operating room, and pre- and post-operative recovery areas. The cameras on Level D recorded both video and audio; those on Level B captured video only. All 24 cameras became operational in January 2017. Prior to the CBC investigation, the only signage inside the Clinic was a small, obscured sign on a shelf in the operating room stating "this area is under video surveillance," and a sign in the elevator lobby outside the Clinic on Level B with identical wording — neither of which informed patients attending consultation or treatment rooms that they were being recorded. No patients were informed of the cameras by Dr. Jugenburg or his staff, and most staff were themselves unaware of cameras beyond the reception and staff room areas.

The class action was commenced on November 28, 2019, under the Class Proceedings Act, 1992, and was certified on May 10, 2021 by Perell J. The class was defined as all patients who attended TCSI from January 1, 2017 to December 13, 2018. A common issues trial was held before Schabas J. in November and December 2025. The plaintiffs alleged negligence, breach of fiduciary duty, breach of trust, and the tort of intrusion upon seclusion, and sought aggregate and punitive damages. The defendants conceded negligence (subject to individual proof of harm) but contested the remaining claims and argued against an aggregate damages award.

Consent forms and camera system provisions at issue

No consent was ever sought or obtained from patients for the recording of their consultations, examinations, or surgical procedures by the surveillance cameras. Patients did receive and sign surgical consent forms and, separately, social media consent forms — the latter expressly limited to photographs and videos taken for educational and promotional purposes and posted on the Clinic's social media platforms. Neither the surgical consent forms nor the social media consent forms made any reference to the surveillance camera system. The CPSO's published Policy Statement #4-12 on Medical Records required physicians to "obtain the patient's consent when collecting, using or disclosing personal health information (PHI), unless provided otherwise by law." The Office of the Information and Privacy Commissioner of Ontario (IPC) ultimately ruled, in PHIPA Decision 98 dated September 20, 2019, that the Clinic's "blanket use of surveillance cameras for non-health purposes…is unacceptable" and contravened the Personal Health Information Protection Act, 2004.

Court's reasoning and analysis

On negligence, the court accepted the plaintiffs' submission that the applicable standard of care required physicians not to have cameras in locations within private health clinics where patients are receiving care or consulting with their doctors, unless the cameras serve a specific medical purpose and the patient has expressly consented. Dr. Bendor-Samuel, a plastic surgeon who ran a private cosmetic surgery clinic in Halifax, Nova Scotia, gave uncontradicted expert evidence that surveillance cameras have no place anywhere in a private cosmetic surgery clinic where patients have a reasonable expectation of privacy, and that any recording of patients requires express consent. The court found that the defendants breached this standard by recording patients in private areas without their knowledge or consent and for no medical purpose.

On fiduciary duty, the court found that while not every breach of a physician's duty rises to a fiduciary breach, Dr. Jugenburg's conduct went beyond negligence or a genuine mistake. The cameras were installed to protect Dr. Jugenburg's own interests — to resolve patient disputes in his favour, monitor staff, and guard against potential litigation — as demonstrated by his own communications, including a message to a colleague stating the cameras "have saved my ass on several occasions" and his 2019 inquiry about extending footage retention to two years to align with the Ontario limitation period. The court found he placed his own interests above those of his patients, constituting a breach of the fiduciary duty of loyalty owed to vulnerable class members. The breach of trust claim was not established: the court found the three certainties required to create a trust — particularly certainty of intention — were not present, and that PHIPA did not independently impose a trust obligation.

On intrusion upon seclusion, the court applied the three-part test from Jones v. Tsige, 2012 ONCA 32. The conduct requirement was met: patients had a reasonable expectation of privacy in consultation and treatment rooms, and the recording of intimate medical information — even without dissemination to third parties — constituted an intrusion. The fact that the cameras were not concealed was not determinative; what mattered was that patients were recorded in private spaces without their knowledge or consent. The state of mind requirement was satisfied: Dr. Jugenburg knew the cameras would capture deeply private patient information, and the court rejected his claim that he misunderstood his obligations, finding his evidence lacked credibility and was internally inconsistent. Mistake of law was held to be no defence to an intentional tort. The consequence requirement was also met on an objective standard: the filming of patients in highly personal medical settings, without consent, was conduct that a reasonable person would regard as highly offensive, causing distress, humiliation, and anguish. The court also found Dr. Jugenburg vicariously liable for the conduct of TCSI and its employees, including head nurse Kim Crawford.

Ruling and overall outcome

The court found in favour of the plaintiffs — the class of patients who attended TCSI during the Class Period. The defendants were found liable for negligence, breach of fiduciary duty, and intrusion upon seclusion; the breach of trust claim was dismissed. Aggregate damages of $21,500,000 were awarded for the tort of intrusion upon seclusion, calculated at $5,000 per patient for those who attended surgical appointments (approximately 4,000 patients) and $500 per patient for those who attended non-surgical, injectables-only appointments (approximately 3,000 patients). An additional $1,000,000 in punitive damages was awarded, reflecting the court's finding that Dr. Jugenburg's conduct was reprehensible — he abused his position of trust, betrayed vulnerable patients from whom he profited, and showed no genuine remorse. Aggravated damages were declined, as those are dependent on individual proof of mental distress and humiliation, which remains available to individual class members. Individual claims for damages arising from negligence and breach of fiduciary duty are to proceed separately, with counsel directed to confer on a proposed process.