Written on behalf of Peter McSherry
Generally speaking, correspondence between a lawyer and their client is confidential and protected by “solicitor-client privilege”. However, when employees use their company email address to contact their lawyer, those emails may be accessible to their employer. Can those emails be used by an employer in litigation against the employee?
The definition of solicitor-client privilege, as adopted by the Supreme Court of Canada, is as follows:
(i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and (iii) which is intended to be confidential by the parties.
The Supreme Court of Canada has emphasized that solicitor-client privilege is fundamental to the Canadian justice system and is a “fundamental and substantial rule of law”.
In the case of Leroux v. Proex Inc., the employee at the centre of the dispute was the founder of the defendant company and became its President and CEO following the company’s acquisition. He was later moved to the role of Executive Vice President reporting to another executive of an affiliated company. He had previously reported only to the board of directors.
His employment was terminated in December of 2019. At the time of his dismissal, he had been with the company for 21 years, since its founding. Shortly after the termination of his employment, he commenced a wrongful dismissal action against his employer.
During the last 12 months of his employment including time when he was the CEO and time when he was the EVP, the employee sent several emails to his personal employment lawyer from his company email address. He did not know his company was aware of and had copies of the emails until the company included the emails as part of their Affidavit of Documents in his wrongful dismissal action.
Once he found out the company had the emails, his new lawyers brought a motion to exclude the emails on the grounds they were communications protected by solicitor-client privilege. The judge had to determine whether the emails were company property and therefore admissible, or were privileged communications between a lawyer and client.
The Test for Solicitor-Client Privilege
To determine whether the emails were protected by solicitor-client privilege, the judge reviewed four elements:
- Was the communication between a client and his or her lawyer?
- Was the communication made for the purpose of obtaining legal advice?
- Did the employee have a subjective belief that the communication was private?
- If so, was that belief reasonable under the circumstances?
The circumstances of a case will affect these factors, including:
- The nature of the employee’s role, training and background;
- The wording of a company policy (if any);
- How the technology worked (for example, was it password protected);
- Whether the email account is shared;
- Whether the employee use their email for other personal matters; and
- Whether the emails were marked as confidential or privileged.
The parties agreed that the communication was between a lawyer and client, and was for the purpose of obtaining legal advice. Therefore, the contentious issue was whether emails sent using a company email address could be considered private communications.
Ultimately, in this case, the court ruled that the emails in question were privileged and that the employee had not waived the privilege. The defendant company was ordered to remove the documents from their Affidavit of Documents and therefore could not rely on those documents as part of their case. The company was also ordered to pay the employee’s legal fees for the hearing.
Peter A. McSherry is an employment lawyer who has dedicated his career to protecting the rights of employees in Ontario. He provides reliable advice and compelling advocacy in a variety of employment law matters, including wrongful dismissal, workplace harassment, and employment-related human rights issues. Peter A. McSherry is based in Guelph and assists clients throughout the Greater Toronto Area. Reach out online or call 519-821-5465 to schedule a consultation.