C. De Leon-Culp

Following a motion in a constructive dismissal action concerning the return of a document claimed to be protected by solicitor-client privilege, the court had ruled in favour of the defendant and ordered the plaintiff to return the document and remove it from the record.

The parties could not agree on costs, requiring a further determination.

The court rejected arguments that the motion produced mixed results or involved a novel legal issue due to the electronic nature of the document.

Substantial indemnity costs were declined as the plaintiff’s conduct did not warrant sanction.

Applying the factors in Rule 57.01 of the Rules of Civil Procedure and principles from Boucher v. Public Accountants Council for the Province of Ontario, the court awarded partial indemnity costs to the defendant in the amount of $3,500 inclusive of taxes and disbursements, payable at the conclusion of the action.

In an employment constructive dismissal action, the defendant employer brought a motion seeking the return of internal emails and a declaration that they were protected by solicitor-client privilege.

The emails had been copied by the plaintiff’s spouse after they appeared on the employer’s computer while he was assisting with a technical task.

The plaintiff argued that privilege had been waived through recklessness, disclosure to a consultant, and fairness considerations.

The court held the emails were privileged communications relating to legal advice and that the consultant acted as an agent of the client, preserving privilege.

The court also found the documents were deliberately taken without authority and ordered their return and deletion, ruling they could not be used in the litigation.