The recent Ontario Superior Court of Justice of Mezikhovych v. Kokosis, 2022 ONSC 6480 is illustrative of the fact that in Ontario courts have held that workplace investigators do not owe a duty of care to a dismissed employee.
The plaintiff was employed as a personal support worker with ParaMed Health Care, a division of Extendicare (Canada) Inc. (“ParaMed”). Sometime during the course of the plaintiff’s employment with ParaMed, she raised a harassment complaint against another employee of ParaMed. As such, ParaMed hired a lawyer to investigate the harassment complaint and to provide to them a report of their findings.
When the lawyer found that there was no inappropriate behaviour and, as such, set that out in a report to ParaMed. The plaintiff was subsequently fired by ParaMed for another issue.
The plaintiff then commenced at action against ParaMed and commenced a separate action against the lawyer who conducted the workplace investigation and prepared the report. The plaintiff alleged in her statement of claim that the lawyer who conducted the workplace investigation had conducted a poor investigation which then resulted in her being fired from ParaMed.
This matter was decided as a motion for summary judgment pursuant to Rule 20.01(1) of the Rules of Civil Procedure, R. R. O. 1990, Reg. 194. The judge quickly set out that there is no duty owed to the plaintiff by the lawyer workplace investigator. The lawyer was not retained by the plaintiff and a lawyer generally owes a duty of care to their clients and not to other persons. The judge went on to point out that the plaintiff being unhappy with the results of the investigation does not give rise to a cause of action against the workplace investigator. As such, the plaintiff’s claim against the workplace investigator was dismissed.
To remind our readers, a duty of care is a legal duty do act in a prudent or careful fashion to another to whom that legal duty is owed. If the duty of care is breached by someone who holds that duty, then the person could be held liable for that breach.
The case law is clear that workplace investigators do not owe a duty of care to dismissed employees. However, while workplace investigators do not necessarily owe a duty of care to a dismissed employee, that does not mean that bungling a workplace investigation does not have any adverse effects. For instance, the employer could still be sued by the dismissed employee related to the bungled investigation.