In a somewhat unique case, the Ontario Superior Court confirmed the principle that, even where a document is prima facie privileged as a solicitor-client communication, unfairness can result in the waiver of such privilege. In this case, an employee was accidentally copied on an email from a senior manager to counsel regarding the potential termination of the employee. Despite the manager’s attempts to recall the email and otherwise prevent the employee from reading it, the employee, not surprisingly, did read the email and shared it with her lawyer. Although it is not clear from the decision what exactly the email said, the employee subsequently left her employment and commenced an action for wrongful dismissal.
The employer brought a motion for a declaration that the email was privileged as a solicitor-client communication, which would prevent the employee from relying on it for the purposes of her wrongful dismissal claim.
The judge who decided the motion at first instance agreed that the email was on its face privileged; however, the judge decided that the preservation of such privilege in the circumstances would be unfair to the plaintiff, therefore the employer’s motion was dismissed. The employer then brought a motion for leave to appeal that decision.
To be successful on the motion for leave to appeal, the employer would have had to show that either (a) there was a conflicting decision by another judge or court, or (b) that there was good reason to doubt the correctness of the initial judge’s decision. The employer did not satisfy either of these criteria. In particular, the Court held that there was “no good reason to doubt the correctness” of the decision under review. Thus, the Court held that there was no basis for interfering with the motion judge’s decision that, although the email was on its face privileged (which was conceded by the parties on the motion for leave to appeal), fairness required that such privilege be waived. Accordingly, leave to appeal was denied and the plaintiff will be permitted to use the email as the basis for her wrongful dismissal claim
Most of us can empathize with the employer in this case. It was an understandable mistake; many people are guilty of hitting send on an email before noticing that someone in the “To” or “Cc” line shouldn’t be there. However, this case is a useful reminder of the consequences of such a mistake.
Kelly O'Ferrall is an associate practising in the Employment, Labour and Pension Group in the Toronto office of Stikeman Elliott. She can be reached at firstname.lastname@example.org or (416) 869-6842.