Claims Struck against Employer for Negligent Investigation and Vicarious Liability for Intrusion Upon Seclusion

November 20, 2024

On November 11, 2024, Justice Jane Dietrich of the Ontario Superior Court of Justice in Toronto released her decision in M.P. v. Ontario Power Generation Inc., 2024 ONSC 6295.

This decision concerned a motion brought by the defendant, Ontario Power Generation Inc. (“OPG”), to strike a number of causes of action from the plaintiff, M.P. (“MP”)’s, Amended Amended Statement of Claim pursuant to Rule 21.01(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg 194.

Background:

The plaintiff MP was a former employee of OPG, who was employed as a manager at the Darlington Nuclear Generating Station between November 2016 and 2021. His position entailed, among other things, investigating and correcting the conduct of certain unionized employees at the nuclear plant.

The Amended Claim contained a large number of factual allegations[1], including that:

Starting in February 2021, an individual or group of individuals at the nuclear plant allegedly disseminated internet news articles reporting that MP’s wife was the biological daughter of convicted serial killer Bruce McArthur.
The individuals who disseminated the articles were employees of OPG and the dissemination was done on OPG property, utilizing OPG equipment or resources.
In March of 2021, an anonymous note was left on MP’s desk indicating certain individuals were responsible for the dissemination of the article.
The plaintiff immediately reported the details and dissemination to his manager, OPG’s Nuclear Safety Team as well as OPG’s human resources and security departments and was informed that an internal investigation would be conducted to determine the identities of the individuals (the “Investigation”).
An investigation was led by OPG employees.
OPG showed the individuals who allegedly disseminated the article a copy of the judicial sealing order previously granted which made it unlawful to publish, broadcast or disseminate in any way any information specifically connecting MP, his immediate family or the family name to Mr. McArthur.
The claim alleges that the individuals who were shown the sealing order then continued to disseminate news articles highlighting the connection between MP and Mr. McArthur.
From February to June 2021, MP learned from some of his colleagues that individuals at OPG were still discussing and disseminating material.
One OPG employee contacted Toronto Police and made unfounded allegations regarding MP attempting to hide evidence in the McArthur criminal investigation. MP was even contacted by Toronto Police as a result.
In June 2021, MP resigned from OPG allegedly due to ongoing distress and damage from the dissemination of the McArthur materials and OPG’s alleged failure to adequately investigate the issue.
In January 2022, MP was informed by the plant director at his new job that employees were disseminating the same article that had been disseminated at OPG. An internal investigation at the plaintiff’s new place of work discovered that the article being disseminated at the new plant was sent to an employee there by an OPG employee.
The plaintiff alleges that OPG was informed of the additional dissemination.
MP also alleged that to date, no action had been taken against the individuals or other persons at OPG who disseminated the news articles either within the Darlington plant during MP’s employment there or afterwards at MP’s new employment.

The Amended Statement of Claim pled several causes of action including breach of contract, breach of statutory or common law duty, and constructive dismissal. OPG’s motion sought to strike the pleadings related to four other causes of action including:

The Tort of Negligent Investigation
The Tort of Intrusion upon Seclusion by Way of Vicarious Liability
Breach of Fiduciary Duty
The Tort of Harassment.

The Law under Rule 21.01(1)(b):

Justice Dietrich began her decision by summarizing the law for striking out pleadings on grounds that it discloses no reasonable cause of action or defence from the decision of Darmar Farms Inc. v. Syngenta Canada et al., 2018 ONSC 7129 [2]:

(1)   a claim will not be struck unless it is plain and obvious it cannot succeed: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93;
(2)   the facts pleaded are to be assumed to be true unless they are patently ridiculous or incapable of proof: Prete v. Ontario (1993), 1993 CanLII 3386 (ON CA), 16 O.R. (3d) 161, [1993] O.J. No. 2794 (C.A.); Nash v. Ontario (1995), 1995 CanLII 2934 (ON CA), 27 O.R. (3d) 1, [1995] O.J. No. 4043 (C.A.);
(3)   a claim must be read with a forgiving eye for drafting deficiencies: Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 1990 CanLII 6611 (ON SC), 74 O.R. (2d) 225, [1990] O.J. No. 1584 (Div. Ct.);
(4)   the novelty of a cause of action is not determinative: Hunt, supra; Doe, supra; R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45, [2011] S.C.J. No. 42, 2011 SCC 42;
(5)   the court is not precluded from striking a negligence claim simply because it asserts a novel duty of care. Whether such a duty of care exists is a question of law that is appropriately resolved on a Rule 21 motion: Syl Apps Secure Treatment Centre v. D. (B.) (CanLII), [2007] 3 S.C.R. 83, [2007] S.C.J. No. 38; and [page783]
(6)   a critical analysis is required in order to prevent untenable claims from proceeding, particularly given scarce judicial resources and the challenges of systemic delay: Rayner v. McManus, [2017] O.J. No. 2788, 2017 ONSC 3044 (Div. Ct.).

Analysis:

a. The Tort of Negligent Investigation:

Next, Her Honour addressed each of the grounds that OPG sought to have struck from the Amended Claim.

Regarding the tort of negligent investigation, Dietrich J noted that the tort of negligent investigation was recognized by the Supreme Court of Canada in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, where it was held that police officers owed a duty of care to suspects being investigated for a crime.[3]

She also summarized the decision in Correia v. Canac Kitchens, 2008 ONCA 506 [“Canac”]. In that decision, the Ontario Court of Appeal concluded that the tort of negligent investigation should be expanded to allow for a claim of negligent investigation against a private third-party investigation firm that was retained by the employer for the purpose of investigating issues of theft and drug dealing in the workplace. However, the ONCA expressly declined to recognize and impose a duty of care on employers when conducting an investigation with respect to their employees.[4]

Her Honour also noted that Canac was followed in the more recent decision of Lee v. Magna International Inc., 2020 ONSC 3912 where the Court held that the plaintiff’s employer was not liable for the tort of negligent investigation even when the Ontario Ministry of Labour determined that the employer’s internal workplace investigation was not appropriate in the circumstances and contravened terms of the Occupational Health and Safety Act.[5]

The plaintiff did not take issue with the above case law but rather argued that since the alleged offending conduct of the OPG individuals was reported to the Nuclear Safety Team of OPG, members of the OPG Nuclear Security Team were acting as peace officers under the Nuclear Facilities Act and not as the plaintiff’s employer when they conducted the investigation.[6]

However, Justice Dietrich dismissed this argument. After reviewing the relevant legislative provisions under the Nuclear Facilities Act, Her Honour concluded that it was more appropriate to characterize the internal investigation done by OPG as part of OPG’s role as employer and not as part of the Nuclear Safety Team’s security services to safeguard the persons, property and premises of the nuclear facility itself.[7]

As such, Her Honour granted this part of OPG’s motion and the claims for negligent investigation were struck.

b. The Tort of Intrusion upon Seclusion by Way of Vicarious Liability:

Her Honour summarized the state of the case law on the tort of intrusion upon seclusion. To establish such a claim a plaintiff must demonstrate:

the defendant’s conduct was intentional or reckless;
the defendant invaded, without lawful justification the plaintiff’s private affairs or concerns; and;
a reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish: see Jones v. Tsige, 2012 ONCA 32 [“Jones”], at para 71.[8]

Her Honour also noted that to establish liability under this tort, “the defendant must actually engage in an intrusive action themself, rather than fail to prevent the intrusive acts of another individual”[9].

Justice Dietrich found that even “[a]ccepting (sic) as pled that the individuals used OPG provided technology and computer systems and that M.P. had a managerial role over the individuals” the alleged wrongful dissemination of the McArthur materials was not “sufficiently related to the individuals’ employment so as to ground a finding of vicarious liability. Rather, it amounted to an incidental connection to the employment enterprise”.[10]

Her Honour also noted that the conduct complained of by MP in the present case was one of dissemination of personal information as opposed to intrusion. As held in Jones, dissemination by itself is not enough to ground a finding of intrusion upon seclusion.

As such, the claim in intrusion upon seclusion were struck as well.

c. Breach of Fiduciary Duty

In addition to her decision to strike the negligent investigation and intrusion upon seclusion claims, Justice Dietrich also struck the portion of the pleadings related to the alleged breach of fiduciary duty, finding that nothing in the factual circumstances of the case suggested that the relationship between MP and OPG was beyond the contractual employment relationship to the extent of a fiduciary obligation being imposed.[11]

d. The Tort of Harassment

Similarly, Her Honour struck the tort of harassment pleadings by noting, from Merrifield v. Canada (Attorney General), 2019 ONCA 205, that there is no recognized cause of action in tort at common law for harassment. While the court in Merrifield left open the future possibility of an assertion of a new tort of harassment, Justice Dietrich found there were no compelling reasons to recognize a new tort of harassment in this case, given that there are multiple additional causes of action that remained in MP’s claim against OPG such as breach of contract, constructive dismissal etc.

Disposition:

In summary, Her Honour granted OPG’s motion to strike the portions of the plaintiff’s claim relating to the tort of negligent investigation, the tort of intrusion upon seclusion, breach of fiduciary duty, and the tort of harassment. She also awarded costs in favour of the defendants.

Conclusion and Takeaways:

This decision provided further clarity and guidance on a number of novel or relatively undeveloped areas of tort law including the tort of negligent investigation and the tort of intrusion upon seclusion.

In regards to the tort of negligent investigation, the Court upheld previous case law which found that employers are not liable for alleged failures to appropriately investigate workplace incidents in the employer/employee relationship.

The Court has also upheld that not only is mere dissemination of information not enough to ground a finding of intrusion upon seclusion, but that more than an incidental connection between the offending parties and their employment is required so as to ground a finding of vicarious liability for the tort of intrusion upon seclusion.

[1] M.P. v. Ontario Power Generation Inc., 2024 ONSC 6295 at para 4

[2] Ibid at para 12 citing Darmar Farms Inc. v. Syngenta Canada et al., 2018 ONSC 7129 at para. 16:

[3] Ibid at para 18.

[4] Ibid at para 19.

[5] Ibid at para 22.

[6] Ibid at para 23.

[7] Ibid at paras 29-31.

[8] Ibid at para 33.

[9] Ibid at para 35.

[10] Ibid at para 41.

[11] Ibid at paras 44 and 50, 51