Ontario’s Superior Court of Justice has struck several key claims from a lawsuit filed by a former section manager at Ontario Power Generation (OPG) against his former employer.
Justice Jane Dietrich ruled that M.P.’s claims for negligent investigation, intrusion upon seclusion by way of vicarious liability, breach of fiduciary duty, and harassment did not disclose reasonable causes of action and should be removed from his statement of claim.
M.P. was employed at OPG’s Darlington Nuclear Generating Station from November 2016 until his resignation in June 2021. His role involved investigating and correcting the conduct of certain unionized employees. In early 2021, individuals at the Darlington Station disseminated an internet news article linking M.P.’s wife to convicted serial killer Bruce McArthur — a connection referred to in the case as the “McArthur Connection.”
An anonymous note left on M.P.’s desk around March 8, 2021, indicated that certain individuals were responsible for spreading the article. M.P. reported this to his manager, human resources, and OPG’s security department, and was informed that an internal investigation would be conducted.
According to M.P.’s amended statement of claim, the investigation was led by OPG employees and was inadequate or entirely lacking. He alleged that the individuals continued to disseminate the McArthur Connection even after being shown a judicial sealing order prohibiting its publication. M.P. also claimed that no action was taken against those involved, and that OPG’s failure to act created a “culture of impunity.”
M.P. further alleged that he faced frivolous or irrelevant complaints from the individuals involved, which OPG investigated instead of addressing his concerns. Due to ongoing distress and OPG’s failure to adequately investigate, M.P. resigned, claiming constructive dismissal.
After starting a new job, M.P. was informed in January 2022 that the same article was being circulated at his new workplace. An internal investigation revealed that an OPG employee had sent the article to an employee at the new company. OPG was notified but allegedly took no action.
OPG filed a motion to strike several causes of action from M.P.’s claim, arguing they failed to disclose reasonable causes of action. The court agreed, applying established legal principles to each contested claim.
On the tort of negligent investigation, the court referenced the Ontario Court of Appeal’s decision in Correia v. Canac Kitchens, which held that employers do not owe a duty of care to employees when conducting workplace investigations. M.P. argued that OPG’s Nuclear Safety Team acted as “peace officers” under the Security for Electricity Generating Facilities and Nuclear Facilities Act and thus owed him a duty of care akin to that of police officers. However, Justice Dietrich found that the Nuclear Safety Team was acting in its capacity as an employer, not as peace officers engaged in security services. Therefore, the claim for negligent investigation could not succeed.
Regarding the tort of intrusion upon seclusion by way of vicarious liability, the court noted that this tort focuses on the act of intrusion, not the dissemination of information. Citing Jones v. Tsige, Justice Dietrich emphasized that the defendant must have invaded the plaintiff’s private affairs without lawful justification. The court found that OPG did not engage in any intrusive action but was instead accused of failing to prevent the actions of its employees. Moreover, the wrongful conduct was not sufficiently related to the individuals’ employment to establish vicarious liability under the criteria set out in Bazley v. Curry.
The claim for breach of fiduciary duty was also struck. While acknowledging that an employment relationship can give rise to fiduciary duties in certain circumstances, the court applied the test from Elder Advocates of Alberta Society v. Alberta. Justice Dietrich found that M.P. did not demonstrate that OPG had undertaken to act in his best interests to the extent required for a fiduciary relationship. The promises made by OPG to liaise with police and monitor online activity did not amount to a “forsaking” of OPG’s interests in favour of M.P.’s.
Lastly, the court addressed the claim for the tort of harassment. Referring to Merrifield v. Canada (Attorney General), Justice Dietrich noted that there is no independent tort of harassment recognized in Ontario law. While the court in Caplan v. Atas acknowledged a new tort of “internet harassment,” it was limited to extreme cases involving malicious online campaigns, which did not apply to M.P.’s situation.
In her conclusion, Justice Dietrich granted OPG’s motion to strike the contested claims from M.P.’s statement of claim. She noted that other claims, such as breach of contract, breach of statutory or common law duty, and constructive dismissal, remained and were not part of the motion.
The court fixed costs at $7,000, ordering M.P. to pay this amount to OPG within 30 days.
For more information, see M.P. v. Ontario Power Generation Inc., 2024 ONSC 6295 (CanLII).
