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Negligent Investigation – It is Difficult to Prove Gross Negligence

Canadian Fraud Lawyer

The essence of negligence is that people should exercise reasonable care when they act by taking into account (foreseeing) the potential harm that they might cause to other people by their actions. It involves harm caused by carelessness, as opposed harm that is intentionally inflicted on another. In a claim of negligence, a plaintiff must prove a duty of care existed and, if so, that the standard of care was breached by the defendant and that the breach of the standard of care caused harm to the plaintiff.


The 2007 decision of Hill v. Hamilton-Wentworth Regional Police Services Board was the first case that recognized the tort of negligent investigation in Canada as it applies to police. The issue before the Court was the conduct of police officers during the course of a criminal investigation. Writing for the majority, McLachlin C.J.C. held that police officers owe a duty of care in negligence to suspects being investigated.


The following year, in Correia v. Canac Kitchens, the Ontario Court of Appeal considered whether the reasoning in Hill could be extended to recognize a duty of care in negligence to suspects being investigated by private investigators. In Correia, an employer hired a private investigator to work undercover to investigate workplace theft. Due to a clerical error by the employer, the investigator’s report mistakenly identified the plaintiff as a thief as opposed to another person with a similar name. Neither the private investigators nor the police verified the employee information, allowing the employer error to go undetected. The undercover investigator was not involved in the arrest, and the police blindly arrested an uninvolved person with a similar name to that of one of targets of the investigation. The plaintiff’s employment was terminated and he was criminally charged.


The plaintiff’s negligent investigation claim was summarily dismissed at the Superior Court on the basis that the private investigators did not owe a duty of care to the plaintiff, a non-target of their investigation, but the Ontario Court of Appeal allowed an appeal from that decision. The Court of Appeal held that there was a triable issue as to whether the relationship between the plaintiff, the private investigator and the employer disclosed sufficient foreseeability and proximity to establish a prima facie duty of care. The Correia case settled for a confidential amount following the Court of Appeal decision.


There has been very little development in the law relating to the tort of negligent investigation since Correia. There are no reported cases in Canada in which a judgment has been obtained against a police officer or a private investigator. One of the reasons for the lack of judgments against police is because the Courts have held that the standard of care is that of gross negligence. It is unclear what the standard of care will be against private investigators.


At Investigation Counsel PC, our focus is fraud recovery and prosecution. We also defend police and private investigators in tort actions. For further information, contact us.



Norman Groot

About Norman Groot

Based on my police experience and my experience thereafter as a litigator, I have joined forces with other lawyers with police experience and created the law firm Investigation Counsel Professional Corporation.

2 Responses to "Negligent Investigation – It is Difficult to Prove Gross Negligence"

  • Avatar
    g. bearse
    October 28, 2013 - 12:53 pm

    Good info Norm…………. I will forward to Ted Salter.

  • Avatar
    November 20, 2015 - 5:35 am

    What is duty of care as it applies to a private investigator?

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