Email Could Not Be Covered Under Solicitor-Client Privilege

by & Christina Catenacci

An Ontario court has compelled an employer to produce an email message between HR staff and counsel in the wrongful dismissal case of Jacobson v Atlas Copco Canada Inc. The Superior Court of Justice found the employer failed to show that the message involved seeking or giving legal advice; thus it could not be protected by solicitor-client privilege.

Facts of the case

The employee’s counsel filed a motion for the employer to produce the internal email, and the court had to decide whether the email was privileged because the company’s lawyer was copied on the message.

This is how the email came to be.

On January 14, 2014, Donald Jacobson was allegedly involved in a physical altercation with a fellow employee while they were both living in housing provided by Atlas Copco. As a result, the employer conducted an investigation, led by human resources employee Sorel Harrison and general manager Geert VanLeemput.

On January 16, 2014, Atlas retained employment lawyer, Geoff Jeffery, as outside counsel to provide legal advice on the investigation.

After the investigation began, Jacobson alleged that Harrison was biased against him. In response, Harrison advised Jacobson by email on January 20, 2014, that she had asked John Skakie, the HR Manager, to review the information pertaining to the investigation.

Harrison sent the relevant information to Skakie and copied Jeffery and VanLeemput on the email. Skakie responded with a number of questions for Harrison, and Harrison replied promptly.

Skakie responded with “his thoughts about a potential course of action” regarding the allegations against Jacobson. This email was also sent to the lawyer Jeffery and general manager VanLeemput.

This was the critical email Atlas claimed was protected by solicitor-client privilege and should not be produced as evidence. Atlas argued that the document should only be produced for inspection by the court if necessary, and that it was not necessary to do so in order for the court to uphold its claim of privilege.

The court disagreed and ordered that the employer produce the document for the court’s inspection, pursuant to the Rules of Civil Procedure. However, the court also ordered that the document be sealed pending the release of the reasons for the motion under the Courts of Justice Act.

Solicitor-client privilege test

So the question was whether the document was subject to solicitor-client privilege. In order to establish privilege over Skakie’s email message, Atlas had to show that the message:

  1. Was a communication between a solicitor and a client;
  2. Entailed the seeking or giving of legal advice; and
  3. Was intended to be confidential between the parties

The court found that Atlas could not show the communication entailed the seeking or giving of legal advice. The message included no explicit request for legal advice—and no actual legal advice—from Jeffery, and there was no direct evidence of Skakie’s intentions.

In fact, Atlas neglected to provide an affidavit from Skakie himself, offering instead only hearsay evidence from VanLeemput on the HR manager’s intentions. Moreover, the employer failed to offer any reasons for not producing a statement from Skakie. The court was unimpressed and placed little weight on VanLeemput’s evidence.

As a result, the court found:

“the most reasonable inference is that Skakie’s message was generated for the purpose of providing his unbiased opinion to Harrison, not for the purpose of providing Jeffery with information upon which Jeffery’s legal advice could be based.”

In other words, just because Jeffery was hired to provide legal advice and copied on an email pertaining to the investigation, this did not mean that the email message in question was made for the purpose of obtaining legal advice.

Given the circumstances and the quality of the evidence, in addition to the contents of the email, it was clear that there was not enough evidence to establish solicitor-client privilege over the message.

As a result, the motion to produce the email was granted and Atlas had to pay costs of the motion.

What can be taken from this case?

As can be seen, copying a lawyer on an email does not automatically make that communication privileged.

Sometimes certain documents that could be used in a wrongful dismissal action are documents that one party does not want to disclose. In order to show solicitor-client privilege to prevent a document from being shown, a party must meet the three-part test outlined above. This means, the intention of the communication matters, and that intention must be to seek or receive legal advice, not just to inform. If the party cannot meet this test, that document will have to be disclosed.

Comments

  1. I believe that the Human Rights Commission has also ruled about solicitor-client privilege in that Legal Opinions that document the respondent knew their actions did not likely meet the test of law can be compelled on that point only. The documents were submitted directly to the arbitrator of the matter and only the very narrow point of that the respondent was given an opinion as to the legality of their actions and or policy were in compliance with Human Rights legislation.