Introduction
Do private investigators in Alberta owe a duty of care to a person they are investigating? The Supreme Court of Canada (“SCC”) and the courts of Alberta have yet to rule on this question, and there is conflicting case law from appellate courts in Nova Scotia and Ontario.
Background
To find a duty of care exists in a category of proximity that has not been recognized in the past,[1] a court must apply the Anns/Cooper negligence test, which asks:
- Was the harm that occurred a reasonably foreseeable consequence of the defendant’s act, and is there proximity in the relationship between the plaintiff and the defendant? If so, a prima facie duty of care exists.[2]
- Are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here?[3]
No matter the jurisdiction, the question of whether or not a private investigator owes a duty of care to a person they are investigating typically refers back to Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (“Hill”), where the SCC ruled that police could be liable in negligence to a suspect they held in custody. In Rennalls v Tettey, 2021 ABQB 1 (“Rennalls”), the Alberta Court of Queen’s Bench (“ABQB”), as it then was, expanded on Hill, finding that police can be liable to a complainant for negligent investigation in certain circumstances. Both of these cases dealt with police negligence. Can their analyses apply to private investigators?
The current state of case law in non-police contexts
In Correia v Canac Kitchens, 2008 ONCA 506 (“Correia”), the Ontario Court of Appeal (“ONCA”) found that private investigators can be liable in negligence when “the private firm performs a function analogous to the public police.”[4] In Correia, the employer, Canac Kitchens, hired a private investigator firm to investigate alleged criminal activities of warehouse employees. While an employee named Joao Correiro was the true perpetrator, the private investigators negligently identified another employee, Joao Correia, to the police for arrest. The latter was confused with Mr. Correiro, who was almost 40 years younger than Mr. Correia. Eventually, the mistake was discovered, but by then Mr. Correia claimed to have suffered serious injury and he sued the employer, the parent company, the private investigation firm, the police force and other individuals. The ONCA held that private investigators could have a duty of care in this specific context, as the private investigator had performed services analogous to the police, by investigating employees.[5] The ONCA allowed Mr. Correia’s claim for negligent investigation to proceed as against the private investigation firm, and for his claim for wrongful infliction of mental distress to proceed as against his employer, the private investigation firm, and other individuals.[6]
The Nova Scotia Court of Appeal (“NSCA”) considered a similar question in Elliott v Insurance Crime Prevention Bureau, 2005 NSCA 115 (“Elliott”). In Elliott, the NSCA considered whether private investigators hired by an insurance company owed a duty of care to the homeowners, who were the subject of the investigation. In this case, the insurer had relied upon the findings of the private investigators in accusing the homeowners of arson and denying coverage. The NSCA found that while the private investigators did owe a prima facie duty of care to the homeowners, the duty of care should be negated for policy reasons; specifically, that a duty of care owed by investigators to the homeowners would “distort the legal relationships among the insured, the insurer and insurance investigators.”[7] Relying on SCC precedent, the NSCA also found that an alternative remedy, being a contractual remedy under the insurance policy that had already been successfully exercised by the homeowners, negated the extension of liability in negligence.[8] Notably, the ONCA reviewed similar policy considerations in Correia, but found that they did not negate the prima facie duty of care owed by private investigators to Mr. Correia.
More recently, in Softcom Solutions Inc v Canada (Attorney General), 2020 ONSC 3290 (“Softcom”), the Ontario Supreme Court (“ONSC”) considered whether the Canada Revenue Agency (“CRA”) could be held liable for an allegedly negligent investigation. The ONSC found sufficient foreseeability of harm and proximity between the CRA and the two business partners under investigation, so as to establish a prima facie duty of care. However, the Court ultimately found that the CRA had met the reasonable standard of care in their investigation and dismissed the business partners’ action.[9]
In Luan v ADP Canada Co, 2020 ABQB 387 (“Luan”), the ABQB found that employers do not owe a duty of care to an employee when conducting an internal investigation. In Luan, the employer fired an employee after a faulty and biased internal investigation. The ABQB determined that the employer owed the employee a prima facie duty of care to competently and thoroughly investigate. However, the Court found the duty of care should be negated on policy grounds in the employer-employee context.[10] Notably, as the investigation at issue in Luan was an internal investigation by the employer’s own human resources and management personnel, the ABQB did not consider whether private investigators would or could owe a duty of care to the subject of their investigation.
Practical takeaways and conclusion
The SCC and Alberta courts have not yet addressed whether private investigators in Alberta owe a duty of care to a person they are investigating; as such, the state of the law remains unclear. If Alberta courts were to adopt the more recent ONCA decision in Correia, private investigators may be subject to such a duty. However, given the conflicting decision in Elliott, and the related decisions of Softcom and Luan, there may be an argument that any such duty should be negated for policy reasons, particularly in the employment context.
Even if such a duty of care is ultimately recognized in Alberta, a number of questions will still remain, including:
- What is the standard of care of a reasonable private investigator?
- Could aggressive, or deceptive, investigative techniques form a basis for a finding of negligent investigation, if the investigation leads to demonstrably erroneous results? Or are those types of techniques simply part of the “toolkit” of a reasonable private investigator?
The answers to these questions will likely depend on opinion evidence as to investigative practices in Alberta.
Miller Thomson LLP is here to help with all of your business needs. If you have questions about whether a private investigator owes a duty of care to a person they are investigating, or any other matter, please contact a member of our Commercial Litigation team.
[1] Cooper v Hobart, 2001 SCC 79 [Cooper v Hobart] at para 36.
[2] ibid at para 30, citing Anns v Merton London Borough Council, [1977] UKHL 4, [1978] AC 728 [Anns].
[4] Correia v Canac Kitchens, 2008 ONCA 506 [“Correia”] at para 47.
[7] Elliott v Insurance Crime Prevention Bureau, 2005 NSCA 115 (“Elliott”) at para 38.
[9] Softcom Solutions Inc v Canada (Attorney General), 2020 ONSC 3290 at para 218.
