Court decisions find employers don’t owe duty of care in conducting investigations

Lee v. Magna International Inc.

The recent decision in Lee v. Magna International Inc., rendered by Justice Diamond of the Ontario Superior Court of Justice, explores whether a workplace investigator owes a duty of care in the conduct of the investigation to the employee he or she is investigating.

Considering the potentially grave consequences of a workplace investigation, employees may believe that the investigator, and the company that chose him or her, owes the employee a responsibility to “get it right”. As this case shows, things are not that simple.

Overview of the Case

Mr. Lee was a production technician at Venest Industries Inc., which is part of Magna International, the Canadian auto parts maker.

In March 2018, another employee made a harassment complaint against Mr. Lee following a verbal dispute about the tidiness of Mr. Lee’s workstation. Following an internal investigation, Mr. Lee was disciplined.

Mr. Lee complained to the Ministry of Labour, who administers the workplace harassment provisions of the Occupational Health and Safety Act (OHSA). The Ministry found that the investigation was inadequate because not all the relevant information seemed to have been considered. Magna was ordered to perform a second investigation. It was performed by Mr. Love, who worked for Magna’s subsidiary Cosma Canada as a Human Resources Director.

On February 13, 2019, Mr. Love confirmed the findings of the initial investigation. Mr. Lee left Venest on February 18, 2019. He then filed a lawsuit in Ontario Superior Court.

Mr. Lee tried to amend his claim against Magna several times, which requires the consent of the parties or an order of the court. In one of those amendments, Mr. Lee wanted to add Mr. Love as a defendant. Mr. Lee alleged that Mr. Love owed him a duty of care during the conduct of the investigation, and that he had failed to meet that standard of care.

What does “duty of care” mean?

A duty of care is a legal duty someone owes to someone else to act prudently. For instance, we have a duty of care as drivers towards the other drivers on the road. Each is duty-bound to the other to drive prudently and in a competent manner. If our driving is below the standard required by the duty and we cause a crash, we can be liable to the other driver for the damages flowing from the accident.

What the Courts Said

First attempt to change claim

In a decision on whether to allow Mr. Lee’s amendments, the court found that there was no duty of care owed by Mr. Love to Mr. Lee.

In essence, Mr. Lee argued that Mr. Love had a duty to conduct the harassment investigation prudently and with competence. But because a duty of care is a legal duty we owe to someone else that is not contracted for, courts will look closely to whether it is appropriate to create such a duty in the circumstances.

Judges will look first to see if the duty of care in question has already been recognized by the courts in the past. If it has not, then the courts must determine whether there is a relationship of close proximity and foreseeability between the parties and whether there are any public policy considerations that prevent a duty of care from being imposed.

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Relying on a decision from the Court of Appeal, Master Mills concluded that there was no duty of care in the conduct of the investigation owed by Mr. Love to Mr. Lee. Mr. Love was a regular employee of Magna. The result would have been different had the investigator been a police investigator in a criminal investigation or a private investigator hired by Magna rather than one of its regular employees.

Second attempt to change claim

Undeterred, Mr. Lee tried to amend his statement of claim again, and went to court to ask for permission.

Justice Leiper ruled that even though the OHSA requires employers to investigate complaints of harassment, this alone is not enough to create a duty of care owed by Mr. Love to Mr. Lee to conduct the investigation in a prudent and competent manner.  Justice Leiper was concerned that imposing such a duty on employers would have a chilling effect on their ability to investigate wrongdoings in the workplace, wrongdoings which sometimes are referred to the police. It is in the public’s interest that such wrongdoings be reported. Therefore, public policy did not support imposing a duty of care in this case. As it was plain and obvious that Mr. Lee’s claim would fail, Justice Leiper did not allow him to amend his claim.

Third attempt to change claim

Mr. Lee brought a third motion to amend his claim, which was heard by Justice Diamond.

Mr. Lee wanted to add a claim of negligent investigation, which had already been denied twice previously, and also wanted to add as defendants every director and officer of Magna, even though he did not know their names.

Unsurprisingly, Justice Diamond agreed with Justice Leiper and Master Mills in finding that the employer could not be sued for negligent investigation. Furthermore, Justice Diamond denied Mr. Lee the right to add unnamed defendants to his lawsuit. This time, Justice Diamond did not allow Mr. Lee to amend his claim again.

The Outcome

The lawsuit is moving forward based on the last claim to be filed, however it does not include a claim for negligent investigation.