Intention of e-mail key to privilege: judge

Copying a lawyer on an e-mail you’re sending to someone else does not automatically make that communication privileged, an Ontario Superior Court judge has found.

Justice Gregory Ellies said in a recent ruling the intention of the communication matters, and that intention must be to seek or receive legal advice.

“In the same way that sending a message to both a fellow employee and a lawyer does not prevent a communication from being privileged, a message does not become privileged merely by sending a copy of it to a lawyer: see Humberplex, at para. 49,” Ellies said.

In Jacobson v. Atlas Copco Canada Inc., a wrongful dismissal matter, the issue before Ellies centered on whether an e-mail one human resource employee sent to another is privileged. The company’s lawyer was copied on that e-mail.

The test for solicitor-client privilege includes establishing whether first, there is a communication, and second, whether that communication was intended to be confidential, requirements that are often fairly easy to establish, according to McCarthy Tétrault LLP partner Malcolm Mercer. But a third part of the test is that the communication was meant to elicit or provide legal advice.

“Clients copy e-mails and letters to their lawyer in a belief that somehow makes it privileged,” says Mercer. “It doesn’t necessarily.”

In this case, “The client didn’t establish that the lawyer was being copied so that the lawyer could give legal advice about what was being said to the lawyer,” he says.

In Jacobson, one of Atlas Copco’s HR personnel, Sorel Harrison, was in charge of investigating an HR matter that eventually led to a dismissal of an employee. But since that employee had alleged she’s biased against him, Harrison sent an e-mail to a third party, John Skakie, with information containing what’s being investigated. She copied the company’s lawyer, Geoff Jeffery, as well as a general manager.

Skakie wrote back with the notes Harrison had sent him about her investigation, inserting questions in various places. Harrison then replied with answers typed in near the questions.

After reviewing Harrison’s response, Skakie again replied to the e-mail, copying the lawyer in his response. This was the communication Atlas Copco sought to protect under solicitor-client privilege.

“There is no doubt that Jeffery’s role was to provide legal advice with respect to this particular situation and that he did provide that advice after receiving Skakie’s message,” said Ellies. “However, that is not enough, in my view, to establish that Skakie sent the message for the purpose of obtaining that legal advice in light of the other circumstantial evidence surrounding the communication.”

Ellies’ decision also shows establishing intention of communication may require persuasive evidence. The judge in this case declined to take into account what he considered “hearsay evidence.”

Atlas Copco had relied on the affidavit of Geert VanLeemput, the general manager of another division of the company, to establish intent. VanLeemput deposed that Skakie had told him he copied the lawyer in the e-mail not “just for the sake of copying him” or to cloak his communication in privilege but so that the lawyer could provide legal advice.

Still, this was insufficient to sway the judge.

“In my opinion, this hearsay evidence is insufficient to establish the purpose for which Skakie sent his message, a central and contentious issue in this motion,” he said.

Ellies added: “In the case at bar, the best evidence of Skakie’s intentions is the evidence of Skakie himself. However, rather than provide an affidavit sworn by Skakie – an affidavit upon which he could have been meaningfully cross-examined – Atlas Copco provided only the hearsay evidence of VanLeemput on the central issue of those intentions.”

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