CITATION: Fernandes v. Marketforce Communications, 2012 ONSC 6392

COURT FILE NO.: CV-11-4443-00

DATE: 20121113

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

B E T W E E N:

Maria Fernandes

J. David Keith, for the Plaintiff

Plaintiff (Responding Party)

and -

Marketforce Communications Inc. and Sudler & Hennessey Toronto ULC

Jeffrey Hoffman, for the Defendants

Defendants (Moving Party)

HEARD: October 17, 2012

REASONS FOR JUDGMENT

Justice Thomas A. Bielby

FACTS

1The defendants seek leave to appeal from the Order of Mr. Justice Sproat, dated July 25, 2012, which, amongst other relief, dismissed the defendants’ motion to expunge those portions of the Statement of Claim that made reference to privileged and confidential information and to enjoin the plaintiff from divulging that information.

2The alleged privileged and confidential information consists of an email message and its attachments.

3The learned motions court judge ruled that, while the information in issue was subject to solicitor-client privilege, the plaintiff ought to be allowed to refer to the information in her Statement of Claim and to rely upon it at trial. Otherwise, it would be unfair to the plaintiff.

4The plaintiff is a former employee of Marketforce Communications Inc. (the Company). On March 4, 2011, when the plaintiff was still an employee of the Company, Linda Guerin (Guerin), the Company’s Director of Operations sent an email message to the company’s lawyers and inadvertently copied the email to the plaintiff.

5The email in issue also included an email Guerin received from another manager taking issue with the continued employment of the plaintiff. Both emails made reference to terminating the employment of the plaintiff. Guerin wanted a conference call with the Company’s lawyers to discuss the issues

6Guerin tried to recall the email shortly after it was sent by sending out three recall notices. She then sent an email to the plaintiff claiming the message had been inadvertently sent and that it was privileged and confidential. Guerin requested the plaintiff delete the message without reading it or copying it.

7The plaintiff did, in fact, read the email, copy the email and provided a copy to her lawyer.

8The plaintiff was on vacation for most of the month of March 2011. On April 5, 2001, the plaintiff advised Guerin and the Company that she would not be returning to work and that, after receiving the email, she was left to interpret the Company’s position as effectively terminating her employment.

9The plaintiff commenced a wrongful dismissal action on November 17, 2011.

DECISION OF THE TRIAL JUDGE

10The defendants brought a motion seeking a declaration that the email in issue was privileged and that the plaintiff was prevented from relying on the email.

11In his Endorsement, Justice Sproat determined that the email and the attachments were part of a privileged solicitor-client communication. The inadvertent disclosure, in and of itself, did not waive the privilege. The learned judge concluded that the error was excusable and there was an immediate attempt to retrieve the information. He then went on to consider the issue of whether the preservation of the privilege would be unfair to the plaintiff.

12With respect to the issue of unfairness, Justice Sproat noted that the reading of the email by the plaintiff affected her state of mind regarding her employer and considered that a distinguishing feature. It related to her ability to trust her employer.

13Justice Sproat also felt that it would be unfair to the trial judge to have a less than complete understanding of what the plaintiff learned from the email and how it may have affected her response to her employer on April 5, 2011. Its impact on the plaintiff would be difficult to assess without the disclosure of the email.

14Justice Sproat ruled that it would be in the interests of justice and fairness to allow the trial judge to have access to the email. He saw no corresponding unfairness to the defendants if the email was before the trial judge.

15The motion of the defendants was, therefore, dismissed.

MOTION FOR LEAVE

16Leave to appeal an interlocutory order is governed by Rule 62.02 of the Rules of Practice. Subsection 4 of the section sets out the grounds on which leave may be granted. It reads as follows:

Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted: or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

17The defendants have the onus of satisfying the criteria set out in section 62.02(4).

18Counsel for the plaintiff takes no issue with respect to the decision of Justice Sproat. Therefore, it is conceded that the communication in issue was, on its face, privileged. Accordingly, the issue before me relates to the motion judge’s finding of unfairness and his ruling, deeming the privilege waived.

ANALYSIS

19The authorities support the need to consider the issue of unfairness with respect to an argument related to privilege and inadvertent disclosure. In that regard, I have referred to the decision of Justice Farley in Nova Growth Corp. v. Kepinski [2001] O.J. No. 5993 (S.C.), where he ruled that there was no basis for the plaintiff’s argument that the preservation of privilege would cause unfairness to them.

20In the Nova Growth case, the defendants, as part of their disclosure obligations during litigation, delivered nine boxes of material to the plaintiff and in doing so inadvertently included some privileged material.

21Justice Farley found that the materials in issue were privileged and were delivered inadvertently without the intent to waive privilege. Mere possession did not waive the privilege. The learned judge noted that solicitor-client privilege is a fundamental part of our judicial system and that the inadvertent disclosure does not waive the privilege.

22At paragraph 23, he noted:

Lastly there does not appear to be any basis advanced by the plaintiffs as to how the preservation of privilege in these circumstances would cause unfairness to them. Doubtless to say that it would be to their advantage for them and their counsel to know and be able to use the innermost thoughts of advice sought and received together with tactics and strategy as considered by the defendants and their counsel, but that is saying nothing more than what is present in every case, yet still the benefit of privilege is considered to be an underpinning of the legal system and for the benefit of litigants on all sides of any litigation.

23Justice Farley’s conclusion, rejecting unfairness, was based on the facts before him.

24Justice Sproat, in his endorsement, which is the subject of this motion for leave to appeal, referenced Sopinka and Lederman in determining that he had to consider:

(a) whether the error was excusable;

(b) whether there was an immediate attempt to retrieve information; and

25I have had reference to an excerpt from the text, The Law of Evidence in Canada, 3^rd^ edition, by Bryant, Lederman and Fuerst. At page 959, paragraph 14,129, it reads, “whether intended or not, waiver may occur when fairness requires it...”

26I turn now to the application of Rule 62.02(4) to the facts before me.

27As to the issue of “conflicting decisions” by another court as referenced in the first ground for leave to appeal, I agree with the plaintiff that the authorities provided by the defendants which preserved privilege in the face of inadvertent disclosure do not conflict with the decision of Justice Sproat. The issue in this regard is whether the learned motion’s judge applied the correct principles in reaching his decision.

28Provided the motion judge examined all the issues and applied the correct principles to the facts, disagreement with the discretionary application of principles to the facts does not mean the judge’s discretion is in conflict with another decision: see Axiom Plastics v. E.I. Dupont Canada Co. (2008), 90 O.R. (3d) 782 (Div Ct), at paras. 26, 53-59 per Kitely J.

29Moreover, all of the authorities provided by the moving party involve the release of privileged material during the course of litigation. In this matter, the email in issue was inadvertently released prior to the commencement of the litigation.

30In my view, Justice Sproat properly applied the correct principles to the facts before him. The fact that the same principles applied to a different fact situation may result in a different outcome does not amount to a conflicting decision within the meaning of Rule 62.02(4).

31Justice Sproat had the discretion to make the Order on the facts before him.

32There 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.

33Without the ability to rely on the email, and its impact upon her, the plaintiff would be at a significant disadvantage in establishing the context for these actions and that her actions were reasonable.

34With respect to the second ground, specifically Rule 62.02(4)(b), there is no good reason to doubt the correctness of the order in question. The motion judge applied the correct legal principles to the issues before him and properly exercised his discretion.

35One of the authorities relied upon by the moving party was a decision of mine in Pate v. Sinclair 2011 ONSC 5401, in which I granted leave to appeal an interlocutory order. I granted leave on the basis that there was reason to doubt the correctness of the decision in issue. I did so, however, on an issue of law because of two limitations placed on the waiver of privilege by the motions judge. I was not aware of any legal authority in that regard.

36In conclusion, the defendant’s motion for leave to appeal the order of Justice Sproat, dated July 25, 2012, is dismissed.

37If the parties cannot agree to costs, I will accept written submissions in that regard of no more than four pages in length, to be received within 30 days of the release of this endorsement.