E-mails sent to in house counsel for “simultaneous review” not privileged

14 Jan

Master Short of the Ontario Superior Court of Justice issued a decision on December 21st in which he held that e-mails merely copied to in house counsel were not subject to solicitor-client privilege. Here is the principle Master Short endorsed:

If the document was prepared for purposes of simultaneous review by legal and non-legal personnel, it cannot be said that the primary purpose of the document is to secure legal advice.

The idea that a communication for “simultaneous review” by legal and non-legal personnel is not privileged seems too broad and should be understood based on the facts in this case, which involved a standing order to copy in house counsel on all correspondence related to a business conflict (with significant legal ramifications) so counsel would be “in the loop.” If a communication goes “to” counsel and “to” another business official in the context of an ongoing advisory relationship pertaining to a matter, the inference about the purpose of the communication is significantly different than if counsel is merely copied. Barring other facts, the communication ought to be privileged.

Humberplex v. TransCanada Pipelines, 2011 ONSC 4815 (CanLII).

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