ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-610
DATE: 2012-01-11
BETWEEN:
SANDRA POTTRUFF
C. De Leon-Culp, for the Plaintiff
Plaintiff
- and -
DON BERRY HOLDINGS INC.
P. Quinlan, for the Defendant
Defendant
HEARD: December 2, 2011
The Hon. Mr. Justice Arrell
JUDGMENT
Introduction:
[ 1 ] The defendant brings this motion to have two documents, and any copies in the possession of the plaintiff, returned to it. As well it seeks a declaration that the documents cannot be referred to in this litigation because of solicitor and client privilege.
[ 2 ] The plaintiff brings a cross motion seeking a declaration that the documents are not privileged and can be utilized as the plaintiff sees fit.
Facts:
[ 3 ] The plaintiff worked for the defendant which owns several Tim Horton Restaurants. She claims she was constructively dismissed by the defendant and as a result has commenced this law suit.
[ 4 ] Bruce Beacham was a consultant hired by the defendant to assist it in managing its’ expenses. He arranged for Don Berry, the principle of the defendant, and himself to meet with the defendant’s counsel to seek legal advice regarding certain employees. In advance of the meeting Mr. Beacham sent an e-mail to this counsel, with a copy to Mr. Berry, setting out the scenarios they would be seeking advice on.
[ 5 ] Subsequent to the meeting Mr. Beacham sent an e-mail to Mr. Berry summarizing the legal advice received.
[ 6 ] The husband of the plaintiff, who is knowledgeable about computers, would from time to time assist Mr. Berry with his computer issues.
[ 7 ] On or about May 15, 2010, approximately one week after Mr. Berry received the e-mails from Mr. Beacham, the husband of the plaintiff had been asked by Mr. Berry to assist in training a SPAM filter on his business computer. Mr. Berry swears, and it is not contradicted, that he did not give the plaintiff’s husband open access to his computer, and certainly did not give him access to any documents regarding his wife.
[ 8 ] The husband of the plaintiff swears, and it is not contradicted, that the documents accidently popped up on the screen. He admits when he saw his wife’s name on the documents he read them and given the content felt he owed an obligation to his wife to show them to her. He therefore immediately copied them to his computer, printed them and passed them on to her.
[ 9 ] A year and a half later, being September 2011, the defendant heard from a manager that these e-mails were being shown to employees by the plaintiff’s husband.
[ 10 ] The plaintiff was on maternity leave at the time these e-mails were generated. She returned to work in February 2011. Her lawsuit alleges her job description changed shortly thereafter and in September 2011, prior to the defendant becoming aware that the documents were in her possession, she commenced legal proceedings for constructive dismissal.
[ 11 ] Defence counsel subsequently demanded return of the documents which plaintiff counsel has refused to do.
Position of the Parties:
[ 12 ] The defence argues that the e-mails were generated as a result of advice being sought and given by counsel to his client on a potential legal issue and were therefore protected by solicitor/client privilege. In any event the documents were clearly taken without any authority or colour of right and cannot now be used for the benefit of the person whose husband stole the documents.
[ 13 ] The plaintiff argues that Mr. Berry was so reckless in allowing the plaintiff’s husband access to his computer that he effectively waived any privilege attached to the documents. The court was also urged to find that Mr. Berry had no right to privacy regarding the contents of his computer when being maintained by the plaintiff’s husband. She further argues that disclosure of the communication to Mr. Beacham, a third party, waives any potential privilege. Finally she argues that fairness, relevance, probative value and the administration of justice demands that these documents be admissible in this law suit.
Analysis:
[ 14 ] The facts are clear that the only conclusion this court can arrive at is that the plaintiff’s husband stole the documents from Mr. Berry’s computer. There is no suggestion he had authority to take them. It is certainly understandable as to why he stole them but that does not change the fact that he took something that he knew did not belong to him without any colour of right or authority to do so. These were not documents that were immediately recognizable as illegal, such as the nude photographs of an underage student, as in R. v. Cole , [2011] ONCA 218. On this basis alone I would conclude that the administration of justice would be brought into disrepute if those who wrongfully and intentionally obtained documents could then use them to their advantage in civil law suits.
[ 15 ] This is not a situation where one party’s confidential document innocently falls into the hands of the opposing party. This was a deliberate and planned act to remove a document from a person’s computer knowing full well it was confidential.
[ 16 ] I would also conclude that the document is protected by solicitor and client privilege.
“confidential communications to a lawyer represent an important exercise of the right to privacy, and they are central to the administration of justice in an adversarial system. Unjustified, or even accidental infringements of the privilege erode the public’s confidence in the fairness of the criminal justice system. This is why all efforts must be made to protect such confidence”
R. v. Lavallee, Rackel & Heintz (2002) SCC 61
[ 17 ] The Supreme Court stated further in R. v. McClure (2001) SCC 14 at para. 35:
“However, solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case by case basis.”
[ 18 ] I also reject the argument of the plaintiff that as Mr. Beachman was privy to the legal advice the privilege waived.
[ 19 ] Mr. Beachman was a consultant to the defendant, as such he was acting, in my view, as an agent for the defendant. I agree with Ground J. that where a consultant, acting as an agent for the client provides the clients information to a lawyer for the purpose of obtaining legal advice, solicitor-client privilege arises.
Canbook Distribution Corp. v. Borins [1999] O.J. No. 492 at para. 12
[ 20 ] Wildman J. dealt with this issue in a case very similar to the one at bar. A woman saw e-mails between her boyfriend and his solicitor about strategies to use in the divorce action with his wife. She made copies. When the woman and her boyfriend broke up she provided copies of these e-mails to her boyfriend’s wife.
Eizenshtein v. Eizenshtein 2008 Carswell Ont 3822
[ 21 ] The learned judge concluded the e-mails were privileged and it did not matter whether they were obtained by the girlfriend innocently, as she claimed, or stolen as Mr. Eizenshtein contended. He found the e-mails were not admissible under any of the exceptions to solicitor-client privilege and ordered that they be removed from the court record.
Eizenshtein, supra paras. 11 & 12
[ 22 ] I am not persuaded by the plaintiff’s arguments on the facts as I have found them that any of the exceptions to solicitor-client privilege apply. There is no allegation that Mr. Berry or the defendant was seeking legal advice about committing a crime. There is no allegation that the legal communication discloses that a fraud is about to be perpetrated on the court or others. I have already dealt with waiver of privilege through third party communication on the facts of this case.
[ 23 ] The plaintiff argues that the privilege is lost because Mr. Perry was so wantonly reckless as to allow the plaintiff to have access to his computer. I disagree.
[ 24 ] A person’s computer is a highly personal storage instrument. Many cases have concluded that an extremely high level of privacy is expected regarding the contents. There is no evidence in this case that suggests the plaintiff’s husband was given access to everything on Mr. Perry’s computer. He was asked to train a spam filter and nothing more. He was well aware that he did not have access to the documents he copied and that what he was doing was wrong. I do not find Mr. Perry was reckless in expecting that documents on his computer would not be accessed and certainly not copied. Certainly if there was any recklessness it was not sufficient to waive privilege. Clearly, Mr. Perry never intended to waive privilege regarding the documents in question relating to the plaintiff.
“Once a document has been shown to be a classic solicitor-client communication it is presumptively privileged. In deciding whether to admit it into court proceedings over the objection of the client, the onus should be on the person wishing to override the privilege to establish why the document should be admitted.”
Eizenshtein, supra at para. 44
Conclusion:
[ 25 ] The plaintiff has not rebutted the presumption of privilege regarding the e-mails in question and her cross motion is dismissed. The motion of the defendant is granted. The e-mails in question and all copies will be forthwith returned to defence counsel. All copies of the e-mails on the plaintiff or her husband’s computer will be deleted and plaintiff’s counsel will produce an affidavit to that effect. The e-mails are not to form any part of the record.
[ 26 ] I would expect costs to follow the cause but if the parties cannot agree they may make brief written submissions of no more than three double spaced pages in addition to any offers or bill of costs within 15 days of the release of this decision.
ARRELL J.
Released: January 11, 2012
COURT FILE NO.: CV-11-610
DATE: 2012-01-12
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SANDRA POTTRUFF
Plaintiff
- and -
DON BERRY HOLDINGS INC.
Defendant
REASONS FOR JUDGMENT
ARRELL, J.
Released: January 11, 2012