Court reminds: "a message does not become privileged merely by sending a copy of it to a lawyer"

A recent decision of the Superior Court of Justice should serve as a good reminder to HR professionals that one must be careful in how information is shared if privilege will be claimed.

In Jacobson v. Atlas Copco Canada Inc., the plaintiff was a former employee of the defendant.  Following a workplace altercation involving the plaintiff and a co-worker, human resources investigated.  However, the plaintiff took the position that the local HR representative was biased.  Accordingly, the HR representative sought the opinion of another HR employee from a different location to ensure impartiality.  Copies of the investigation notes were exchanged among the HR representatives, with a copy to an external employment lawyer.  However, it was not clear that all of the employees on the email chain were aware of the identity of the lawyer, nor did anyone expressly seek the advice of the lawyer with respect to the outcome of the investigation.  In one particular email message, one of the HR reps offered his views on the application of the employer's progressive discipline policy and a proposed course of action vis-à-vis the plaintiff's employment.  A couple of hours later the lawyer provided his legal advice on the situation, although his opinion had not been solicited.  The employee was ultimately terminated, and sued for wrongful dismissal. 

In the course of the action, the plaintiff brought a motion seeking production of the email from the second HR representative of the company (but not the responding email from the lawyer, which clearly contained legal advice).  The employer resisted the motion on the basis that the email communication was protected by solicitor-client privilege and should not be produced.  In support of its position, the employer provided an affidavit from the company's General Manager, who advised that the company had retained the external lawyer to provide advice on the investigation, and his belief that the HR representative had been seeking advice when he copied his email to the lawyer.  However, the company did not provide an affidavit from the HR representative himself.

Justice Ellies looked at the surrounding circumstances to determine whether it was clear that the HR representative had intended to seek the lawyer's advice when he sent his email.  Unfortunately, because the company had not provided the "best evidence" (i.e., a statement from the individual who actually sent the email), the Judge concluded that the hearsay evidence of the General Manager did not establish that this was the intention of the communication in question. As the party claiming privilege, the onus of proving the communication was privileged rested with the company.  The evidence it put forward failed to prove that point on a balance of probabilities.  At paragraph 25, the Judge very succinctly summarized his conclusion:

Atlas Copco relies on [the General Manager]`s evidence that [the lawyer] was retained to provide legal advice prior to the [HR representative's] message and provided an opinion via e-mail a few hours after the message was sent. There is no doubt that [the lawyer]’s role was to provide legal advice with respect to this particular situation and that he did provide that advice after receiving [the HR representative's] message. However, that is not enough, in my view, to establish that [the HR representative] sent the message for the purpose of obtaining that legal advice in light of the other circumstantial evidence surrounding the communication. 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.

While the decision turned largely on the  importance of producing the "best evidence" in all circumstances, it also lays bare a common assumption or misunderstanding about legal privilege.  In order to claim solicitor-client privilege, the client (in this context, the employer) must establish that the communication in question was sent to a lawyer with the intention of getting the lawyer's legal advice.  Copying a lawyer without soliciting an opinion may not suffice to protect the message from disclosure later, particularly if there is no discussion amongst the parties about the role of counsel on the email chain. Likewise, if the advice in question is not "legal" per se, privilege will also not apply.  Legal privilege can be a very valuable tool, particularly in the context of an investigation into wrongdoing.  However, if the role of the lawyer is not observed, privilege may be elusive.

Do you have questions about how and when solicitor-client privilege can be claimed?  Need assistance in conducting investigations?  Contact Lance Ceaser for expert guidance.