CITATION: Jacobson v. Atlas Copco Canada Inc., 2015 ONSC 4
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DONALD JACOBSON, in his personal capacity, and in his corporate capacity o/a JAKE’S INNOVATIVE TECHNOLOGIES
Robert B. Lilly, for the Plaintiff
Plaintiff/Moving Party
- and -
ATLAS COPCO CANADA INC. o/a ATLAS COPCO EXPLORATION PRODUCTS
Joseph N. Blinick, for the Defendant
Defendant/Responding Party
HEARD: December 19, 2014
ellies j.
REASONS FOR DECISION
1The plaintiff in this wrongful dismissal action (“Jacobson”) moves for an order compelling the defendant (“Atlas Copco”) to produce an e-mail sent by one human resources employee to another before Jacobson’s employment was terminated. A copy was also sent to Atlas Copco’s lawyer. Atlas Copco claims solicitor-client privilege over the message.
2The central issue is whether Atlas Copco has established that the communication entailed the seeking or giving of legal advice. In my view, it has not. Atlas Copco has inexplicably failed to introduce any direct evidence of the writer’s intentions and neither the circumstances in which the communication was made nor the contents of the message itself are sufficient to establish that the message was sent for the purpose of obtaining legal advice.
Background Facts
3On January 14, 2014, Jacobson was allegedly involved in a physical altercation with a fellow employee while they were both living in housing provided by Atlas Copco. The matter was subsequently investigated by a local human resources (“HR”) employee named Sorel Harrison. Jacobson alleged that Harrison was biased against him. As a result, Harrison wrote to Jacobson via e-mail on January 20, 2014, advising Jacobson that she had “asked a third party, John Skakie, who is the HR Manager in the Atlas Copco MR office in Mississauga to review the information pertaining to the investigation”. Harrison sent this information to Skakie at 12:36 p.m. on January 20, just before writing to Jacobson at 12:41 p.m. to tell him that Skakie would be involved. The e-mail to which Harrison attached the information was copied by her to Geoff Jeffery, a lawyer practicing employment law with the Weaver, Simmons law firm in Sudbury. The e-mail was also copied to Geert VanLeemput, the general manager of Atlas Copco Exploration Products, a division of Atlas Copco.
4In an affidavit sworn in opposition to the plaintiff’s motion, VanLeemput deposes that he led Atlas Copco’s investigation into the allegations against Jacobson, along with Harrison. He also deposes that Jeffery had been retained on January 16, 2014, in connection with the investigation and that Jeffery’s “exclusive function as outside counsel was to provide legal advice to Atlas Copco in respect of Mr. Jacobson’s misconduct”.
5In response to Harrison’s 12:36 p.m. message and attachment, Skakie sent back an electronic version of the notes that Harrison had sent him with respect to her investigation, with questions inserted by Skakie in various places. Harrison replied with answers typed in near the questions.
6After reviewing Harrison’s answers to his questions, Skakie sent an e-mail to Harrison at 2:44 p.m. on January 20, in which, according to VanLeemput, Skakie “provided his thoughts about a potential course of action” regarding the allegations against Jacobson. A copy of Skakie’s message was also sent to Jeffery and VanLeemput. This is the document over which Atlas Copco claims solicitor-client privilege.
7Atlas Copco resisted producing a copy of Skakie’s e-mail even for the purposes of this motion. It argued that the document should only be produced for inspection by the court if necessary and that it was not necessary to do so in order for the court to uphold its claim of privilege.
8In reasons delivered orally following the argument of the motion, I ordered that the document be produced for the court’s inspection, pursuant to rule 30.04(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides that the court may inspect a document over which a party claims privilege to determine the validity of the claim. I also ordered that the copy so produced be sealed pending the release of these reasons, pursuant to s. 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
9In addition to providing a copy of Skakie’s message as ordered, counsel for Atlas Copco also produced another document consisting of a string of e-mail messages. This string includes a message from Jeffery, sent at 4:20 p.m. on January 20 to Skakie and Harrison, with a copy to VanLeemput. In his message, Jeffery provides legal advice with respect to the comments made by Skakie in his earlier message. I am advised that this string of e-mails was produced so as to ensure that the court had the full context in which Skakie’s earlier message was generated. No request for production of this document has been made on behalf of Jacobson. Clearly, it is subject to solicitor-client privilege. Therefore, the document shall also be sealed pursuant to s. 137(2) of the Courts of Justice Act and shall not be unsealed, except upon further order of this court.
Issue
10The parties agree that, in order to establish a claim of solicitor-client privilege over Skakie’s e-mail message, Atlas Copco must establish that the message:
(1) was a communication between a solicitor and a client;
(2) entailed the seeking or giving of legal advice; and
(3) was intended to be confidential between the parties.
See Solosky v. R., 1979 9 (SCC), [1980] 1 S.C.R. 821, at p. 837.
11On behalf of Jacobson, counsel concedes that Atlas Copco has established the first and third prerequisites set out above. However, counsel submits that Atlas Copco has failed to establish that the message was sent for the purpose of seeking legal advice.
12In his factum, counsel for Jacobson also argued, in the alternative, that Atlas Copco waived its solicitor-client privilege over the Skakie e-mail by producing e-mails sent before and after, which formed part of an “e-mail chain”. Given my conclusion that Atlas Copco has failed to establish its claim of solicitor-client privilege over the Skakie e-mail, I need not consider this alternative argument.
13Therefore, the sole issue to which these reasons are addressed is whether Atlas Copco has established that the Skakie e-mail entailed the seeking or giving of legal advice.
Analysis
14In determining whether a communication entailed the seeking or giving of legal advice, both the circumstances in which the communication was made and the content of the communication itself are relevant. As Atlas Copco correctly submits, it may not be necessary to consider the content of a communication where the privileged nature of the communication is established solely by evidence of the circumstances surrounding it: see Blood Tribe v. Canada (Attorney General), 2010 ABCA 112, 487 A.R. 71, at para. 17; Ansell Canada Inc. v. Ions World Corp. (1998), 28 C.P.C. (4th) 60 (Ont. Ct. (Gen. Div.)), at para. 20; and Falconbridge Ltd. v. Hawker Siddeley Diesels & Electronics Ltd. (1985), 50 C.P.C. 307 (Ont. S.C.), at para. 3, aff’d 1985 1932 (ON SC), 50 O.R. (2d) 794 (H.C.J.).
Circumstances Surrounding the Communication
15Atlas Copco argues that the privileged nature of the Skakie message is obvious from the evidence surrounding Jeffery’s involvement in this matter. VanLeemput deposes that Jeffery was retained only for the purpose of advising Atlas Copco with respect to this matter. Atlas Copco points to VanLeemput’s affidavit evidence that Jeffery was retained two days after the alleged altercation and one day after Atlas Copco’s investigation into that altercation began. Atlas Copco also relies on the fact that Jeffery’s opinion with respect to the appropriate disciplinary action was sent via e-mail within two hours of receiving Skakie’s message and was addressed directly to Skakie and Harrison, with copies to VanLeemput and an assistant at Jeffery’s law firm. Atlas Copco also points out that Skakie replied to Jeffery and Harrison 23 minutes later.
16Atlas Copco submits that Skakie’s message was part of a “continuum of communication” through which Jeffery’s legal advice was sought. It relies on the following passage from Ferrier J.’s decision in Currie v. Symcor Inc. (2008), 2008 37901 (ON SCDC), 244 O.A.C. 3 (Div. Ct.), at para. 46:
[T]he application of solicitor-client privilege is very broad and includes not just a provision of “legal advice” but also the protection of factual, financial and administrative information provided to legal counsel, for the purpose of allowing legal counsel to give legal advice (so long as the advice is not purely business advice). It is not necessary that the communication specifically request or offer advice, as long as it can be placed within the continuum of communications in which the solicitor tenders advice.
See also 578115 Ontario Inc. v. Sears Canada Inc., 2013 ONSC 4135, [2013] O.J. No. 2785, at paras. 29-30.
17In my view, the circumstantial evidence adduced by Atlas Copco falls short of establishing the privilege claimed over the Skakie message. Before I explain my reasoning, I wish to deal with one argument advanced on behalf of Jacobson.
18Counsel for Jacobson maintains that a message sent for review both by employees of Atlas Copco and by its lawyer cannot be privileged. In support of this argument, counsel relies on the decision in Humberplex Developments Inc. v. TransCanada Pipelines Ltd., 2011 ONSC 4815, [2011] O.J. No. 5876. In Humberplex, Master Short held that a document that was prepared for the purposes of review simultaneously by legal and non-legal personnel cannot be for the primary purpose of seeking legal advice. Relying on the American decision in In re Buspirone Antitrust Litigation, 211 F.R.D. 249 (U.S. Dist. Ct. S.D. N.Y. 2002), Master Short held, at para. 53:
If the document was prepared for purposes of simultaneous review by legal and non-legal personnel, it cannot be said that the primary purpose of the document is to secure legal advice and no privilege may be maintained at this stage.
19I am unable to agree with this blanket statement. In my view, it should be restricted to the facts in Humberplex, in which Master Short held, at para. 52, that “[o]perational reports and documents containing relevant and discoverable factual information” were not privileged simply because they were copied to a lawyer.
20Outside of the circumstances in Humberplex, there are many situations that come to mind in which a communication may be made simultaneously to a lawyer and to a non-lawyer for the purpose of seeking legal advice. This case could be one of those situations. If the evidence in this case established, for example, that Skakie had been asked by Harrison to provide both Harrison and Jeffery with information regarding Atlas Copco’s progressive disciplinary process so that Jeffery could advise Harrison as to the legal consequences of terminating Jacobson’s employment in light of that disciplinary process, it seems clear to me that the information provided by Skakie to Jeffery would be for the purpose of seeking legal advice, even though Skakie also sent a copy to Harrison.
21However, this scenario has not been established on the evidence before me.
22The evidence before me takes three forms: (1) VanLeemput’s affidavit, to which I will return shortly; (2) the e-mails to which I made reference earlier, in which Harrison advised Jacobson that Skakie had been asked to review the results of the investigation in response to allegations of bias; and (3) the evidence given by Harrison during her examination for discovery as a representative of Atlas Copco.
23At her examination for discovery, Harrison testified that the decision to terminate Jacobson’s employment was made by a committee consisting of Harrison and VanLeemput, with the advice and input of Skakie. She testified that Skakie’s role was to advise the committee as an unbiased individual. Her evidence was as follows:
Q. Okay. Whose decision was it? Was it part of – did Skakie make the decision?
A. There were recommendations from John Skakie, as well as our Counsel, Geoff Jeffrey (sic) and the Committee.
Q. Okay. What exactly was John – I don’t know if it is Skakie or Sakie, Skakie ---
A. Skakie.
Q. What was Mr. Skakie’s role?
A. He provided input on his recommendations, and his thoughts on what the next step should be and ---
Q. And the reason for ---
A. And what type of progressive discipline, I guess, is the ---
Q. And the reason for Mr. Skakie’s involvement was what?
A. To have another opinion.
Q. An unbiased opinion; right?
A. Correct.
Q. Was there any correspondence or notes generated by Mr. Skakie as a function of his role in the investigation?
A. He did not have a role in the investigation, he reviewed notes.
Q. Okay. He was part of the Panel, I thought? He was part of the Committee? I asked you earlier, I said, Who was on it? You said Mr. Skakie was involved as well. He was on the Committee. Was he not on the Committee?
A. No, and I apologize, I shouldn’t have said that. I guess he was not on the Committee formally. He was an advisor to help with the determination.
Q. You told me earlier what John Skakie’s role was, and his role was to provide an outside opinion on whether there should be what, cause, or what? What was his opinion? What was his role at first?
A. As an advisor. His role was as an advisor.
Q. What did he review?
A. He reviewed the investigative notes.
Q. What weight, if any, did his opinion have?
A. What weight? How do I gauge the weight?
Q. It might be a legal term. Why did you -- why did you have him look at it? So he could give his opinion and you do what with it? Would the Committee consider it?
A. We would take his advice into consideration.
Q. Okay. Would you follow it?
A. We would consider it, and as a Committee determine what his recommendations were.
Q. All right. So as a Committee, that is just you and Geert who are determining ---
A. Reviewing it, as well as our lawyer, Geoff [Jeffery].
24Both from the contents of the e-mail messages that preceded Skakies message and from Harrisons discovery evidence, the most reasonable inference is that Skakie’s message was generated for the purpose of providing his unbiased opinion to Harrison, not for the purpose of providing Jeffery with information upon which Jeffery’s legal advice could be based.
25Atlas Copco relies on VanLeemput`s evidence that Jeffery was retained to provide legal advice prior to the Skakie message and provided an opinion via e-mail a few hours after the message was sent. 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. 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. 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.
26Atlas Copco also relies on VanLeemput’s affidavit evidence about Skakie’s intentions. At para. 15 of his affidavit, VanLeemput deposes:
I am advised by Mr. Skakie that his emails were addressed to Mr. Jeffery so that Mr. Jeffery could provide legal advice with respect to the content of those emails. I am also advised by Mr. Skakie that he did not copy Mr. Jeffery just for the sake of copying him, nor did he copy him for the sole purpose of cloaking his communication in privilege.
27In 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.
28Of course, hearsay evidence is permissible on a motion by virtue of rule 39.01(4) of the Rules of Civil Procedure which provides:
An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
29There are good reasons for this rule. The issues in many motions are collateral to those of the proceedings in which they arise. Allowing hearsay evidence on such collateral issues is in keeping with the proportionality principle expressed in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28, and recognized in rules such as rule 29.2 (proportionality in disclosure) of the Rules of Civil Procedure. However, this derogation from the usual rules of evidence comes at a cost. One of the prices paid relates to the truth-finding process.
30Hearsay evidence is not usually admissible in court because “its evidential value rests on the credibility of an out-of-court assertor who is not subject to the oath, cross-examination or a charge of perjury”: see Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 4th ed. (Markham, Ont.: LexisNexis, 2014) at § 6.9, at p. 239. As Dickson J. put it in R. v. Abbey, 1982 25 (SCC), [1982] 2 S.C.R. 24, at p. 41:
The main concern of the hearsay rule is the veracity of the statements made. The principal justification for the exclusion of hearsay evidence is the abhorrence of the common law to proof which is unsworn and has not been subjected to the trial by fire of cross-examination. Testimony under oath, and cross-examination, have been considered to be the best assurances of the truth of the statements of facts presented.
31Although rule 39.02(1) of the Rules of Civil Procedure permits cross-examination of an affiant, that right is largely illusory when it comes to hearsay evidence. About the best the cross-examiner can hope to do is to cross-examine on whether the affiant truthfully recounted what was said, not whether what was said was true. For this reason, courts have held that less weight and more scrutiny should be given the closer the hearsay evidence comes to the dispositive issue in the motion. I will give a few examples.
32In Barclays Private Bank & Trust (Cayman) Ltd. v. TD Securities Inc., 2003 CarswellOnt 4254 (Ont. Master), the plaintiffs made a motion to amend their statement of claim, in support of which they submitted an affidavit by one of the lawyers from the law firm representing the plaintiff. The affidavit was substantially based on information and belief. The amendments proposed would have removed an admission that the parties entered into an agreement, which was contentious, as the defendants intended to rely on the agreements for their defence. The plaintiff’s request was denied. In dismissing this part of the motion, Master Hawkins stated, at para. 5:
Subrule 39.01(4) does permit affidavits based on information and beliefs rather than on personal knowledge to be used on motions. However, an affidavit dealing with contentious matters which is based on information and belief, rather than personal knowledge may be of little evidentiary weight: York Condominium Corp. No. 335 v. Cadillac Fairview Corp. (1983), 1983 1734 (ON SC), 42 O.R. (2d) 219 (Ont. Master) per Peppiatt, M at p. 222g. [Emphasis added.]
33In Al Masri v. Baberakubona, 2010 ONSC 562, [2010] O.J. No. 4794, the defendant brought a motion for security for costs. The defendant’s motion was granted on the basis that, in filing an affidavit from one of the lawyers in the law firm representing the plaintiff, the plaintiff had failed to file the best evidence of her own impecuniosity. In arriving at his decision, Master Pope wrote the following, at para. 19:
The plaintiff claims that she is impecunious. This is one of the factors to be considered by the court when exercising its discretion. It is a significant factor because courts are always concerned about a plaintiff's financial ability to proceed with the action should security for costs be ordered. For that reason, a plaintiff must do more than simply adduce some evidence. The evidence should come from the plaintiff herself as she has the best knowledge of her financial circumstances.
34Finally, Isakhani v. Al-Saggaf, 2007 ONCA 539, 226 O.A.C. 184, was a case in which a father appealed a motion judge’s decision refusing to permit a child to be removed from the country. The motion judge relied on a report prepared by Amnesty International concerning discrimination and violence against women in countries, including the country to which the father sought to remove the child. On behalf of the majority, Moldaver J.A. (as he then was) wrote with respect to the use of the report, at paras. 38-39:
Given my conclusion that the report was otherwise inadmissible, I need not finally resolve the hearsay issue. I would simply point out that where a document like the Amnesty International Report is being tendered for the truth of its contents in respect of contested facts (be they adjudicative, legislative or social) that are at the center of the controversy between the parties, the reliability and trustworthiness of the document takes on added importance. To that end, I believe that trial and motion judges should be guided by the principles set forth by Binnie J. in R. v. Spence (2005), 2005 SCC 71, 202 C.C.C. (3d) 1 at paras. 60-61. Although Binnie J.’s comments were directed to the issue of judicial notice, I believe that they are apposite to situations like the one at hand. Thus, in this case, the closer the Amnesty International Report came to the dispositive issue, namely, whether the wife and child would be adequately protected by the Dubai justice system, the closer scrutiny it deserved. [Emphasis added.]
Here, that could well have translated into a need to submit evidence from witnesses with firsthand knowledge of the Report who could be subject to meaningful cross-examination. No such witnesses were available here.
35Moldaver J.A. went on to conclude that, although the Amnesty International Report should not have been admitted into evidence, the motion judge came to the right conclusion in making the order that he did.
36In 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.
37The evidence adduced by Atlas Copco leaves many questions unanswered. For example, there is no evidence that Skakie even knew who Jeffery was at the time he wrote the message in question, apart from the inference contained in VanLeemput`s hearsay evidence of Skakie’s intentions. We know from VanLeemput’s affidavit that Jeffery was not in-house counsel, with whom Skakie might have been familiar because they had the same employer. Although VanLeemput deposes that Jeffery had been retained by Atlas Copco previously, there is no evidence that Skakie was involved on those occasions. Nor is there any reason to think that Skakie would know who Jeffery was just from the appearance of his e-mail address on the messages Harrison copied to both Skakie and Jeffery, which e-mail address included Jeffery’s firm’s name. Skakie was in Mississauga, Weaver Simmons is in Sudbury. Further, as I will point out when I turn to the contents of the messages that have now been produced for my inspection, there is reason to believe that Skakie may not have known who Jeffery was.
38The point is that on this crucial issue of Skakie`s intentions, Atlas Copco chose to introduce hearsay evidence upon which Skakie could not be cross-examined. No explanation has been offered for failing to provide the best evidence with respect to this important issue.
39It is no answer, as counsel for Atlas Copco submitted in argument, that Jacobson could have examined Skakie prior to the hearing of the motion, pursuant to rule 39.03. The onus of establishing the privileged nature of the communication at issue rests upon Atlas Copco: Davies v. American Home Assurance Co. (2002), 2002 62442 (ON SCDC), 60 O.R. (3d) 512 (Div. Ct.), at para. 18.
40Therefore, it is my view that little or no weight should be given to VanLeemput’s hearsay evidence regarding Skakie’s intentions.
41Having considered the circumstances in which Skakie’s message was sent and the quality of the evidence of his intentions, I turn briefly to the contents of the message itself.
Contents of the Communication
42I will not refer in detail to the contents of the messages that have been produced for my inspection, in order that Atlas Copco’s position may be preserved pending the outcome of any appeal it might wish to take from this decision. In a general way, however, I can indicate that there is nothing explicit or implicit in the message, nor in the message from Jeffery that followed it, supporting VanLeemput’s statement of Skakie’s intentions.
43In a more specific way, I note two things. First, in her reply to Skakie’s 2:44 p.m. message, which Harrison sent at 4:07 p.m., Harrison indicated that she would trust the advice of Jeffery, “our labour lawyer”. One is left to wonder why she would feel the need to write that if Skakie knew already who Jeffery was.
44Second, although Jeffery’s 4:20 p.m. message was sent to both Skakie and Harrison, it was addressed only to Harrison and was not, as VanLeemput deposed in his affidavit (at para. 16), sent “directly to Mr. Skakie with legal advice”.
Conclusion
45For these reasons, the motion is granted. An order shall issue compelling Atlas Copco to produce the e-mail from John Skakie to Sorel Harrison dated January 20, 2014, within 30 days of the release of these reasons.
Costs
46The plaintiff was successful in the motion. Therefore, he is entitled to costs. Written submissions with respect to the issue of costs may be made as follows:
(a) the plaintiff may make written submissions of no more than five typewritten pages, excluding attachments, within 20 days of the date of the release of these reasons; and
(b) the defendant may make written submissions, similarly limited in length, within 30 days of the date of the release of these reasons.
Ellies J.
Released: February 18, 2015
CITATION: Jacobson v. Atlas Copco Canada Inc., 2015 ONSC 4
COURT FILE NO.: CV-14-5978
DATE: 2015/02/18
ONTARIO
SUPERIOR COURT OF JUSTICE
DONALD JACOBSON, in his personal capacity, and in his corporate capacity o/a JAKE’S INNOVATIVE TECHNOLOGIES
Plaintiff/Moving Party
– and –
ATLAS COPCO CANADA INC. o/a ATLAS COPCO EXPLORATION PRODUCTS
Defendant/Responding Party
REASONS FOR DECISION
Ellies J.
Released: February 18, 2015