



COURT OF APPEAL FOR ONTARIO

CITATION: Lee v. Magna International Inc.,
    2022 ONCA 32

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 appellants 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 appellants employment.

[2]

The claim arises out of the employers 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 appellants 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. Cosmas 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 appellants claim in negligence as against the corporate defendants on
    the basis that, relying on this courts 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 appellants 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 appellants 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 judges 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.


