Lawyer retained by employer had no duty of care to worker
The Ontario Superior Court of Justice has dismissed a worker’s claim against the lawyer retained by her employer to conduct an investigation into her workplace harassment complaint.
The worker was employed as a personal support worker with ParaMed Home Health Care, which is a division of Extendicare that offers home health services in four provinces including Ontario, where the worker worked.
The worker filed a harassment complaint against a ParaMed district director in 2017 and ParaMed retained a lawyer to conduct an investigation. The lawyer sent a letter to the worker stating that she had been retained by ParaMed to conduct a workplace investigation into her complaint. She later interviewed the worker as part of the investigation.
After the investigation wrapped up, the worker emailed the lawyer’s law firm to “express my gratitude” to the lawyer for the investigation, acknowledging that the lawyer had been contacted “to investigate the issue I was facing at the workplace for many months.”
There is no legislative guidance for what qualifications are needed for an investigator, says an expert.
On April 20, 2018, ParaMed terminated the worker’s employment for not providing requested medical documentation to support an accommodation request. The worker commenced an action against ParaMed related to her dismissal.
In May 2018, the lawyer issued a report finding that there was no inappropriate behaviour. On May 18, the worker wrote to the lawyer complaining that she had been fired for not providing medical documentation and her report was inaccurate. Specifically, she contended that her investigative interview was not fair because the district director against whom she had filed the complaint was present and asked her inappropriate questions.
The worker also filed an action against the lawyer, alleging that the lawyer conducted a poor investigation that resulted in her harassment complaint being dismissed and later the termination of her employment.
The lawyer applied for summary judgment, to which the court agreed, finding that there was no genuine issue requiring trial.
An effective, fair investigation after workplace misconduct can significantly reduce employer liability, says an employment lawyer.
Duty of care
The court found that a lawyer generally only owes a duty of care to their own client. The only exceptions were if another party were relying on the lawyer’s skill to save them from harm – and this only applied if the lawyer was aware of the reliance, the non-client actually relied on the lawyer’s guidance and skill, and the reliance was reasonable.
The court determined that, in these circumstances, there was no reason for the worker to rely on the investigating lawyer’s skill. She was retained by ParaMed to investigate the worker’s complaint and completed the report, as requested by the organization, the court said.
“[The lawyer] had no duty of care with respect to the [worker],” said the court. “The fact that the [worker] was unhappy with the results of the investigation does not give rise to a cause of action against the [lawyer].”
The worker claimed that she never understood that the lawyer had been retained by ParaMed, but the court didn’t believe it, since the worker’s email after the investigation stated that she knew the lawyer had been contacted by ParaMed and the lawyer sent a letter stating that she had been retained by ParaMed at the start of the investigation.
The court also found that the worker had informed the lawyer that she had been fired for failing to provide medical documentation and she never disputed that fact.
Ultimately, the lawyer had no legal duty of care to the worker, said the court.
It’s advisable to use an independent investigator in situations that are complex, sensitive, or might result in dismissal, says a lawyer.
The court also determined that the worker’s action was too late to be considered. The Ontario Limitations Act, 2002, allowed for two years from the day a claim was discovered. In this case, the worker claimed that she only received a copy of the report in November 2018, but her email to the lawyer complaining of the investigation report showed that she was aware of the report on May 18, 2018. She filed the claim on May 8, 2021, nearly three years later. As a result, the worker’s claim was statute barred, said the court.
The worker’s claim against the lawyer was dismissed. See Mezikhovych v. Kokosis, 2022 ONSC 6480.