Dik Lee v. Magna International Inc., et al.

(Ontario) (Civil) (By Leave)


Torts - Negligence, Civil procedure, Pleadings - Torts — Negligence — Civil Procedure — Pleadings — Alleged negligent workplace investigation — Whether a statement of claim can be amended to include a claim of negligence against directors and officers of an employer corporation in the context of their duties under occupational health and safety legislation — Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 32.


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Mr. Lee sought to appeal an order refusing him leave to amend the latest version of his statement of claim in an action he commenced against his former employer following a workplace investigation of harassment where he was disciplined. He sought to add a claim of gross negligence against “all directors and officers” of the corporation, claiming they had failed in their duties under occupational health and safety legislation to take all reasonable care to ensure that the corporation complied with the legislation in the context of the investigation.

The motion judge dismissed the motion to amend the claim on the basis that Mr. Lee did not name the proposed new defendants; he failed to plead material facts sufficient to support a claim for personal liability; and he was seeking again to add a claim for negligent investigation, after his earlier motions to assert the same claim had been dismissed. The judge confirmed that a breach of a statutory duty does not create a cause of action in negligence and there is no tort of negligent investigations by employers. The Court of Appeal dismissed the appeal.