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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).