{"id":25889,"date":"2025-01-15T15:24:06","date_gmt":"2025-01-15T20:24:06","guid":{"rendered":"https:\/\/www.millerthomson.com\/?p=25889"},"modified":"2025-05-09T13:57:00","modified_gmt":"2025-05-09T17:57:00","slug":"ontario-court-strikes-down-employees-claims-in-workplace-investigation-case","status":"publish","type":"post","link":"https:\/\/www.millerthomson.com\/en\/insights\/labour-and-employment\/ontario-court-strikes-down-employees-claims-in-workplace-investigation-case\/","title":{"rendered":"Ontario court strikes down employee\u2019s claims in workplace investigation case"},"content":{"rendered":"\n

A recent Ontario Superior Court decision sheds light on the limited scope of employer liability in tort for internal workplace investigations.<\/p>\n\n\n\n

Background<\/h2>\n\n\n\n

In M.P. v. Ontario Power Generation Inc.<\/em>,[1]<\/a> a former manager sued Ontario Power Generation (\u201cOPG<\/strong>\u201d) alleging a deficient investigation into his claims of workplace harassment and bullying.<\/p>\n\n\n\n

In early 2021, OPG employees circulated an online news article that connected the plaintiff\u2019s wife to convicted serial killer Bruce McArthur. The plaintiff reported these activities to OPG and noted that the employees\u2019 actions violated the terms of a judicial sealing order. OPG conducted an internal investigation to identify those involved. The plaintiff alleged that the investigation was inadequate and allowed the misconduct to persist. This ultimately led to the plaintiff\u2019s resignation and his initiation of a constructive dismissal claim against OPG. The plaintiff later discovered that OPG employees had shared the article with individuals at his new workplace.<\/p>\n\n\n\n

Motion to strike<\/h2>\n\n\n\n

OPG moved to strike four causes of action from the plaintiff\u2019s claim: the tort of negligent investigation, vicarious liability for the tort of intrusion upon seclusion, breach of fiduciary duty, and the tort of harassment.<\/p>\n\n\n\n

Negligent investigation<\/h3>\n\n\n\n

The Court confirmed that no duty of care is owed by employers when conducting internal workplace investigations. However, a private third-party firm hired to conduct a workplace investigation could be liable for the tort of negligent investigation.<\/p>\n\n\n\n

The plaintiff argued that the claim for negligent investigation was justified because members of the OPG Nuclear Safety Team, which conducted the investigation, were \u201cpeace officers\u201d under the Nuclear Facilities Act<\/em>. However, the Court found that those employees could only be said to be peace officers while engaging in security services such as guarding or patrolling for the purpose of protecting persons or property. The investigation team was not acting in their capacity as peace officers during the investigation at issue; therefore, the Court determined that the claim for the tort of negligent investigation could not succeed.<\/p>\n\n\n\n

Intrusion upon seclusion<\/h3>\n\n\n\n

The Court found that the plaintiff could not prove that OPG had committed the tort of intrusion upon seclusion. First, the leading case on intrusion upon seclusion held that \u201cthe tort focuses on the act of intrusion, as opposed to dissemination or publication of information.\u201d[2]<\/a> Since the OPG employees had merely disseminated an existing article, there was no \u201cact of intrusion\u201d that could support the claim.<\/p>\n\n\n\n

Furthermore, the Court affirmed that merely failing to prevent an intrusive action would not be sufficient to ground an intrusion upon seclusion claim and rejected the plaintiff\u2019s argument that OPG should be vicariously liable. The Court concluded that the employment relationship did not significantly increase the risk of harm. The employees\u2019 actions lacked sufficient connection to their employment to establish vicarious liability under the principles outlined in Bazley v. Curry<\/em>.[3]<\/a> The Court described this connection as merely \u201cincidental.\u201d<\/p>\n\n\n\n

Breach of fiduciary duty<\/h3>\n\n\n\n

The Court affirmed that an employment relationship is not presumptively fiduciary in nature. Rather, there must be something beyond the contractual employment relationship in order for a fiduciary obligation to arise. According to Alberta v. Elder Advocates of Alberta Society<\/em>,[4]<\/a> <\/a>an ad hoc<\/em> finding of a fiduciary duty requires that the alleged fiduciary has forsaken the interests of all others in favour of those of the beneficiary. There was no evidence that, in promising to conduct its investigation, OPG had effectively forsaken its interests in favour of the plaintiff\u2019s.<\/p>\n\n\n\n

Harassment<\/h3>\n\n\n\n

Finally, the Court confirmed that the tort of harassment is not recognized in Ontario. It also determined that the plaintiff\u2019s allegations did not meet the criteria for the tort of \u201cinternet harassment\u201d recognized in Caplan v. Atas<\/em>.[5]<\/a><\/p>\n\n\n\n

Conclusion<\/h2>\n\n\n\n

The Court struck the plaintiff\u2019s claims of the tort of negligent investigation, vicarious liability for the tort of intrusion upon seclusion, breach of fiduciary duty, and the tort of harassment.<\/p>\n\n\n\n

The decision affirms existing jurisprudence outlining the limits of employer liability in the context of workplace investigations. Although other civil causes of action may remain available to employees in such cases, employers can take comfort in this decision, which recognizes their ability to conduct investigations without the chilling effect of potential liability for certain novel torts.<\/p>\n\n\n\n

Practical insights for employers: What this means for your business<\/h3>\n\n\n\n

Workplace investigations should be viewed as more than a legal necessity; they are a valuable tool for fostering a respectful and supportive work environment. By prioritizing thorough investigations, organizations demonstrate their commitment to accountability and fairness. This approach not only minimizes risks and strengthens the organization\u2019s resilience but also provides crucial support to affected employees, ultimately cultivating a safer and more positive workplace. We have outlined some practical and actionable insights below for employers interested in enhancing workplace safety and compliance.<\/p>\n\n\n\n

1. Establish a framework for best-practice workplace investigations<\/h4>\n\n\n\n