In Mezikhovych v Kokosis [Mezikovych], the Ontario Superior Court of Justice (“ONSC”) found that no duty of care is owed by a lawyer acting as an investigator to a complainant in the context of a workplace investigation.
The plaintiff to the claim (the “Complainant”) was an employee working as a personal support worker who raised a harassment complaint against her District Director. The defendant to the claim, a lawyer, was subsequently retained by the employer to investigate the harassment complaint as a neutral third party and provide an investigation report (the “Investigator”). The Investigator conducted her investigation and provided the investigation report, which found that there was no inappropriate behaviour or harassment.
After failing to provide requested medical information, the Complainant was subsequently dismissed from her employment. As a result, the Complainant began a wrongful dismissal action against her employer and a separate action against the Investigator, asserting that the Investigator conducted a poor investigation that caused the Complainant’s complaint to be dismissed and resulted in the termination from her employment.
The Investigator brought a motion for summary dismissal, arguing that she was retained by the employer to investigate the harassment complaint and owed no duty of care to the Complainant.
The OSNC granted the summary judgement, finding there was no genuine issue requiring trial, as the Investigator owed no duty of care to the Complainant and the claim itself was outside the limitation period. As a result, the claim was dismissed.
As part of his analysis, the motion judge relied on the principle that a lawyer generally owes a duty of care only to their own client, and there are extremely limited circumstances under which a duty of care is owed to a non-client. These limited circumstances include:
1. The lawyer knows that a non-client is relying on the lawyer’s guidance and skill;
2. The non-client relies on the lawyer’s guidance and skill; and
3. The reliance is reasonable.
As the Investigator was not retained by the Complainant and none of the limited circumstances existed here, the ONSC found the Investigator, as a lawyer, owed no duty of care to the Complainant, as a non-client. The Investigator completed what she was retained to do—she investigated the harassment complaint and provided an investigation report. There were no additional duties required from the Investigator. The motion judge held that just because the Complainant was unhappy with the investigation’s results, does not mean she has a cause of action against the Investigator. In any event, shortly after the investigation was completed, the Complainant sent the Investigator an email to compliment her work.
Notably, the motion judge held that the essence of the complaint was that the Investigator conducted a poor investigation which led to the Complainant’s dismissal. However, the Complainant had informed the Investigator that the cause of her dismissal was for failure to provide medical documentation, which was not disputed.
The ONSC also found that despite the Complainant seeing the Investigator’s report on May 18, 2018, the Complainant issued her statement of claim on May 8, 2021, almost three years later. As such, the ONSC found the Complainant’s claim was statute-barred for being commenced outside of the two-year limitation period.
Takeaways for Employers
The Mezikovych decision clarifies that lawyers do not owe a duty of care to non-clients unless factors fall within certain limited circumstances. Ultimately, the ONSC held that a lawyer acting as an investigator holds no duty of care to a complainant.
What Mezikovych does not expressly clarify is whether investigators owe a duty of care to complainants, to the organization, or to any party for that matter. In this case, the Investigator was wearing her investigator hat—she was not retained as a lawyer and did not represent any party.
Notwithstanding the ONSC’s analysis, where a workplace investigation is conducted, all parties and witnesses involved should understand the investigation process and the role of the investigator. A clear explanation of the scope, the mandate, and the role of both the investigator and the individuals involved should be shared with the relevant parties and witnesses to ensure there are no misunderstandings about the process.
Although employers typically retain lawyers to conduct workplace investigations as independent, neutral, third-party investigators, employers should remember that the investigators do not represent the employer, regardless of their legal background. Once a lawyer is retained as an investigator for the organization, the individual, as an investigator, must maintain neutrality and impartiality throughout the course of the investigation process. Employers should understand that the investigator, despite being a lawyer, does not represent them for the matter they are investigating. Where an employer wants legal advice in these situations, they must seek separate and independent legal counsel.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.