Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220119 DOCKET: C69465

Rouleau, van Rensburg and Roberts JJ.A.

BETWEEN

Dik Lee Plaintiff/Moving Party (Appellant)

and

Magna International Inc., Cosma International Inc., Venest Industries Inc., Mike Rooke, Gina Aiello, Joel Minor, Joel Willick, and Steven Thususka Defendants/Responding Parties (Respondents)

Dik Lee, acting in person Laura J. Freitag, for the respondents

Heard: January 7, 2022 by video conference

On appeal from the order of Justice James F. Diamond of the Superior Court of Justice, dated April 20, 2021, with reasons reported at 2021 ONSC 2899.

Reasons for Decision

[1] The appellant appeals an order refusing him leave to amend the latest version of the statement of claim in an action he commenced in February 2019. The defendants include the appellant’s former employer, Venest Industries Inc. (“Venest”). Venest is a division of another named defendant, Cosma International Inc. (“Cosma”), which in turn is a subsidiary of the defendant Magna International Inc. (“Magna”). The individual defendants are current or former employees of the corporate defendants who were employed at Venest and Cosma during the appellant’s employment.

[2] The claim arises out of the employer’s investigation of a harassment complaint brought against the appellant in March 2018, following which the appellant was disciplined. In November 2018 the Ministry of Labour issued an order (the “MOL Order”) against Magna, the appellant’s primary employer under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”), concluding that the investigation was not appropriate, and requiring Magna to carry out an appropriate investigation. Cosma’s Human Resources Director, Gary Love, completed a second investigation in February 2019 and confirmed the findings and outcome of the first investigation. The appellant resigned from his employment and claimed constructive dismissal.

[3] The appellant commenced an action against the respondents by Statement of Claim issued on February 28, 2019. He has amended or sought to amend his claim on a number of occasions, including after the respondents had delivered a Statement of Defence, and he had delivered a Reply. The appellant has brought motions to amend, and the respondents have moved to strike aspects of the pleadings. On October 23, 2019, Master Mills (as she then was) dismissed a motion to amend, among other things, to add Mr. Love as a defendant, with allegations of gross negligence and negligent investigation against Mr. Love and the respondents. On June 24, 2020, Leiper J., among other things, struck out the appellant’s claim in negligence as against the corporate defendants on the basis that, relying on this court’s decision in Correia v. Canac Kitchens, 2008 ONCA 506, 91 O.R. (3d) 353, there is no tort of negligent investigation by an employee against an employer in Ontario, and alternatively, after conducting an Anns/Cooper analysis, that no such tort should be recognized.

[4] In accordance with the order of Leiper J., the appellant served an Amended Amended Fresh as Amended Claim on August 31, 2020, the respondents served an Amended Statement of Defence on September 28, 2020, and the appellant served an Amended Reply on October 6, 2020. Shortly thereafter the appellant once again proposed to amend his pleading, and he brought a motion seeking leave to file a Second Fresh as Amended Statement of Claim. It is the dismissal of this motion by Diamond J. that is the subject of the appeal.

[5] The appellant’s proposed amendments sought to add a claim of gross negligence against “all directors and officers of Magna” and against its CEO, Donald Walker. The appellant, relying on s. 32 of the OHSA claimed that they had a duty, as directors and officers of a corporation to take all reasonable care to ensure that the corporation complied with the provisions of the OHSA and regulations and orders thereunder. He proposed to plead that the directors and officers failed to ensure that the corporate defendants complied with the MOL Order and failed to ensure that at the conclusion of the investigation a written summary of the findings was provided to him.

[6] The motion judge dismissed the motion to amend on the basis that the appellant did not name the proposed new defendants, and that in any event the appellant was seeking yet again to add a claim for negligent investigation, after his earlier motions to assert the same claim against Mr. Love and the corporate defendants had been dismissed. There was also a failure to plead material facts sufficient to support a claim for personal liability against the unnamed officers and directors. The motion judge concluded that it was not in the interests of justice to afford the appellant a further opportunity to amend his pleading.

[7] The appellant makes a number of arguments on appeal, which can be summarized as follows: First, he submits that the motion judge erred in law by failing to allow him to amend his claim to include a claim of “gross negligence” against every officer and director of Magna. Instead of applying the Anns/Cooper test to what was a “novel” claim in negligence against the directors and officers of Magna, the motion judge relied on the prior decisions of Master Mills and Leiper J., which involved different claims against different proposed individual defendants and the corporate respondents. Second, the appellant contends that the motion judge did not apply the appropriate legal tests in refusing to permit him to use pseudonyms in referring to the unnamed directors and officers. Third, he asserts that the motion judge erred in failing to allow him to plead a claim against the CEO of Magna, who was named in the proposed pleading. The appellant asserts that the necessary amendments ought to have been permitted, in the absence of prejudice to the respondents that could not be compensated for in costs.

[8] It is sufficient for the disposition of this appeal to address only the first argument. We are satisfied that the proposed amendments do not disclose a cause of action against the proposed additional defendants.

[9] The appellant asserts that he is proposing to plead a “novel” claim, which should be permitted to proceed on an Anns/Cooper analysis. The novelty, according to the appellant, is his pleading that all of the unnamed directors and officers of Magna, as well as Mr. Walker, who is named, owed him a duty consistent with s. 32 of the OHSA to ensure that Magna complied with the MOL Order and carried out an appropriate investigation of the workplace harassment complaint.

[10] The motion judge did not engage in an Anns/Cooper analysis because it was unnecessary for him to do so. In essence, the appellant’s latest attempt to amend his pleadings confronts the same obstacles he faced in the motions before Master Mills and Leiper J. He is proposing yet again to assert a claim for a negligent workplace investigation, although he now expresses this as a breach of a duty of care he was owed by all of the individual officers and directors of Magna, by reason of the OHSA provisions. After conducting an Anns/Cooper analysis, this court concluded in Correia, at paras. 71 to 75, that there is no liability in tort for employers conducting internal investigations of their employees’ conduct. As the motion judge observed, “[b]y extension, there cannot be a duty of care to protect against the commission of a tort that does not exist at law”: at para. 17. Nor is there tort liability for breach of a statutory duty: Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205, at p. 225. The fact that the appellant now characterizes his claim as one of “gross negligence” does not change the character of his pleading, when a claim in negligence is not available: Cerqueira v. Ontario, 2010 ONSC 3954, at paras. 27, 48.

[11] While this is sufficient to dispose of the appeal, we also note that we agree with the motion judge’s refusal to permit a claim to be asserted against proposed unnamed defendants using pseudonyms. Apart from the failure to disclose a cause of action, the allegations against the proposed unnamed defendants are so broad and general and lacking in material facts, including allegations that would attract personal liability, that, even if the “litigating finger” test were to be applied (that the defendants, on reading the pleading, would know what allegations were being made against them), it could not be met. See, for example Bercovici v. Attorney General of Canada, 2019 ONSC 2610, at paras. 30-33.

[12] For these reasons the appeal is dismissed, with costs to the respondents fixed at $7,000, inclusive of HST and disbursements.

“Paul Rouleau J.A.”

“K. van Rensburg J.A.”

“L.B. Roberts J.A.”