A recent Ontario Superior Court decision sheds light on the limited scope of employer liability in tort for internal workplace investigations.

Background

In M.P. v. Ontario Power Generation Inc.,[1] a former manager sued Ontario Power Generation (“OPG”) alleging a deficient investigation into his claims of workplace harassment and bullying.

In early 2021, OPG employees circulated an online news article that connected the plaintiff’s wife to convicted serial killer Bruce McArthur. The plaintiff reported these activities to OPG and noted that the employees’ 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’s 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.

Motion to strike

OPG moved to strike four causes of action from the plaintiff’s claim: the tort of negligent investigation, vicarious liability for the tort of intrusion upon seclusion, breach of fiduciary duty, and the tort of harassment.

Negligent investigation

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.

The plaintiff argued that the claim for negligent investigation was justified because members of the OPG Nuclear Safety Team, which conducted the investigation, were “peace officers” under the Nuclear Facilities Act. 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.

Intrusion upon seclusion

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 “the tort focuses on the act of intrusion, as opposed to dissemination or publication of information.”[2] Since the OPG employees had merely disseminated an existing article, there was no “act of intrusion” that could support the claim.

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’s argument that OPG should be vicariously liable. The Court concluded that the employment relationship did not significantly increase the risk of harm. The employees’ actions lacked sufficient connection to their employment to establish vicarious liability under the principles outlined in Bazley v. Curry.[3] The Court described this connection as merely “incidental.”

Breach of fiduciary duty

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,[4] an ad hoc 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’s.

Harassment

Finally, the Court confirmed that the tort of harassment is not recognized in Ontario. It also determined that the plaintiff’s allegations did not meet the criteria for the tort of “internet harassment” recognized in Caplan v. Atas.[5]

Conclusion

The Court struck the plaintiff’s 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.

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.

Practical insights for employers: What this means for your business

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’s 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.

1. Establish a framework for best-practice workplace investigations

  • Develop robust policies and procedures: Ensure your employee handbook includes clear, detailed procedures for reporting and investigating workplace complaints, including harassment and discrimination allegations.
  • Communicate expectations: Regularly update employees on reporting processes and emphasize the policy for misconduct.

2. Train your HR teams and managers

  • Legal and technical knowledge: Equip HR professionals with training on applicable laws, privacy considerations, and investigative techniques.
  • Scenario training: Use case studies to prepare managers for addressing sensitive situations effectively and professionally.

3. Maintain confidentiality and impartiality

  • Protect privacy: Safeguard the identities of complainants and respondents during the investigation process.
  • Neutral investigators: Assign investigations to impartial internal staff or hire third-party investigators to avoid potential or perceived bias.

4. Act promptly and document thoroughly

  • Timely action: Investigate complaints promptly to demonstrate good faith and avoid exacerbating issues.
  • Record-keeping: Document all steps of the investigation, including interviews, evidence, and final conclusions. This provides transparency and serves as critical evidence if claims escalate.

5. Seek legal guidance when needed

When investigations involve complex issues, such as privacy violations, constructive dismissal, or potential human rights claims, consult with legal counsel. Timely advice can help you navigate legal pitfalls and reduce exposure to liability.

Ensure your HR policies are investigation-ready and tailored to meet today’s legal requirements. For more information on this topic, or any other labour and employment topic, please feel free to reach out to a member of  Miller Thomson’s Labour & Employment Group.

[1] M.P. v. Ontario Power Generation Inc., 2024 ONSC 6295

[2] Jones v. Tsige, 2012 ONCA 32 at para 57

[3] Bazley v. Curry, 1999 CanLII 692 (SCC)

[4] Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24

[5] Caplan v. Atas,2021 ONSC 670