Case Report – BCCA lets negligent investigation claim proceed against individual employee

On November 5th, the British Columbia Court of Appeal held that it was not plain and obvious that an individual who directed an investigation into an allegation of employment-related misconduct did not owe a duty of care to the subject of the investigation.

The facts of the case are not unique.  A school board received a complaint that a principal had been physically abusive to a teaching assistant.  The superintendent retained an external investigator, who investigated and prepared a report that the superintendent relied upon in issuing a letter of discipline. Although the principal’s legal counsel objected that the principal had not been given an opportunity to review and respond to the final report before discipline was imposed and requested that the board refrain sending a copy of the letter to the British Columbia of College of Teachers before such an opportunity was granted, the superintendent nonetheless sent the letter to the College.  The principal sued the school board and the superintendent for various deficiencies in the investigation and for publishing the letter of discipline.

The Court of Appeal held the action should not be struck because it was not plain and obvious that the superintendent owed no duty of care. It distinguished the Ontario Court of Appeal’s recent finding in Correia v. Canac Kitchens as being a case about whether an employer itself owed a civil duty of care to its employees in conducting internal investigations.  Though the Ontario Court of Appeal rejected such a duty in Correia, according to the British Columbia Court of Appeal it did not address whether an individual employee could owe an independent duty of care to another employee under investigation. The British Columbia Court of Appeal also held that the policy reasons that weigh against recognizing an employer duty of care did not apply to claims made against an individual employee.

The Court also rejected the superintendent’s attempt to strike the action because he was acting strictly in the course of his employment.  It held that the well-known principle in Said v. Butt (that shields employees from liability for causing a breach of contractual duties owed by their employers) does not extend to the tort of negligence even when the acts alleged to be negligent occurred in the performance by the employee of a contract between the employee’s corporate employer and a plaintiff.

Hildebrand v. Fox, 2008 BCCA 434 (CanLII).

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