Errant e-mail communication to plaintiff results in waiver of privilege

On November 13th, the Ontario Superior Court of Justice dismissed an application for leave to appeal a privilege waiver finding that was based on the unfairness that sustaining the privilege would work on the plaintiff.

The plaintiff sued for constructive dismissal after being inadvertently copied on an e-mail from her employer to its legal counsel. The e-mail was sent for the purpose of seeking legal advice on the plaintiff’s termination. The employer was unsuccessful in recovering the e-mail despite its attempts.

Waiver ordinarily requires proof of intent to waive. However, Justice Bielby held that sustaining the employer’s privilege in the unique circumstances would be unfair to the plaintiff because its inadvertent communication was the foundation of her claim:

There is no doubt that the email affected the plaintiff’s state of mind. It was the catalyst for the subsequent steps taken by the plaintiff and the position underlying her claim of wrongful dismissal. She copied the email and contacted counsel to whom she disclosed the email. She presumably and with legal advice, considered her continued employment and took the position, rightly or wrongly, that the email effectively terminated her employment.

Of course, this is no endorsement of the plaintiff’s seemingly questionable theory.

Fernandes v Marketforce Communications, 2012 ONSC 6392 (CanLII).

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