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.