Court File and Parties
MOTION HEARD: 20211220
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jean-Sébastien Leroux, Plaintiff
AND:
Proex Inc., Defendant
BEFORE: Associate Justice L. La Horey
COUNSEL: K. Sebag, Counsel for the Moving Party Plaintiff
D. Peregoudova, Counsel for the Responding Party Defendant
HEARD: December 20, 2021 by videoconference
REASONS FOR DECISION
1The plaintiff, Jean-Sébastien Leroux (the plaintiff or “Mr. Leroux”), has sued the defendant, Proex Inc. (the defendant or “Proex”), for wrongful dismissal. He brings this motion for an order that a series of emails between himself and his former lawyer, sent from or to his Proex work email account, be removed from the defendant’s affidavit of documents on the basis that they are solicitor-client privileged. The plaintiff also asks for an order requiring the defendant to return the emails and destroy any copies.
2For the reasons that follow, I find the emails in question are solicitor-client privileged and should not be included in the defendant’s affidavit of documents.
Background
3Mr. Leroux founded Proex in 1998 and was its President and Chief Executive Officer. In 2016, Alten Canada Inc. (“Alten”) acquired the defendant. As part of the transaction, the plaintiff continued on as CEO of the defendant, now a subsidiary of Alten, pursuant to an employment agreement dated July 1, 2016.
4In or around December 2018, the parties entered into negotiations for an amendment to the plaintiff’s employment agreement with the defendant. The defendant provided the plaintiff with a draft addendum to his existing employment agreement on January 18, 2019. After some back and forth on terms, the plaintiff executed the version of the addendum provided to him on January 28, 2019, on January 31, 2019. The addendum is dated as of January 28, 2019.
5One of the terms of the addendum was that Mr. Leroux’s position changed from CEO to Executive Vice-President. Whereas he formerly reported only to the board of directors, he now reported to the Chief Operating Officer of the Company, Benoit Creneau. The plaintiff remained as a director of Proex.
6The plaintiff was terminated on December 9, 2019 and commenced this action on April 22, 2020.
7The emails that the plaintiff seeks to exclude from the defendant’s affidavit of documents are emails between the plaintiff and his former lawyers (the “Lawyers”) regarding the plaintiff’s employment with the defendant (the “Emails”). The Emails were sent to and from the plaintiff’s Proex company email account, together with attachments. The attachments are emails from the defendant to the plaintiff which the plaintiff forwarded to his lawyer. The plaintiff is not seeking to exclude these emails.
8The defendant discovered the Emails during the discovery process in connection with this litigation. The defendant served its affidavit of documents on March 18, 2021. On the same day the defendant served a “Supplementary Affidavit of Documents” consisting only of the Emails together with attachments to the Emails.
9The plaintiff’s evidence is that throughout the whole time of his employment with the defendant, from its founding in 1998 to his termination in December 2019, he used his Proex email address for both professional and personal purposes.
Law and Analysis
Solicitor-Client Privilege
10The Supreme Court of Canada has explained that solicitor-client privilege “is part of and fundamental to the Canadian legal system. While its historical roots are a rule of evidence, it has evolved into a fundamental and substantive rule of law.”1
11The Supreme Court has reiterated on a number of occasions that:2
… 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.
12Solicitor-client privilege applies to “(i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and (iii) which is intended to be confidential by the parties.”3
13Both parties referred to [Narusis v Bullion Management Group Inc.]4, in which the court considered whether the plaintiff’s correspondence with his own lawyer, using a corporate email account, was solicitor-client privileged. In that case Justice Lederer upheld the decision of Master Dash who had found that the plaintiff’s emails to his lawyer were protected by solicitor-client privilege.
14In Narusis, the plaintiff provided services to the defendant through his management company. In order to provide his services, the plaintiff required access to email. He was permitted access to a corporate server and was assigned a corporate email account. The defendant had an employee policy in place that stated that emails transmitted through a corporate account were not “guaranteed to be private” and could be subject to inspection and control by the company. The policy required that all employees sign an acknowledgement that they understood and would abide by the terms of the policy. The plaintiff did not sign the acknowledgement. In his view, he was not an employee but an independent contractor. The defendant terminated the relationship with the plaintiff and the plaintiff launched the action against the defendant. During the discovery process the defendant searched the corporate email account used by the plaintiff and found emails between the plaintiff and his lawyers.
15Master Dash heard a motion brought by the defendant for an order that the disputed emails were not subject to solicitor-client privilege. Master Dash identified the appropriate test as follows:5
For a communication to be protected by solicitor-client privilege the communication must be made for the purpose of receiving legal advice and there must be a subjective expectation of confidentiality which is reasonably objective in the circumstances.
16After applying this test, Master Dash concluded:6
Notwithstanding the company policy...to which the plaintiff never agreed, I accept the plaintiff subjectively intended that emails to his lawyer, especially those talking about the defendant, would be confidential and, in my view, it was reasonable from an objective perspective to expect that such communication with his lawyers would also be confidential.
17Justice Lederer upheld the Master’s decision after an extensive review of the case law on solicitor-client privilege and waiver of privilege. He concluded:
31 In the present circumstances, the Master did not err when he found, based on the facts as he determined them, that Nathan Narusis had a reasonable expectation of privacy. He had used the computer in respect of personal matters for four years before any policy conditioning or limiting its use for this purpose was put in place. When the policy came into effect (January 11, 2011), Nathan Narusis refused to sign it. The Master noted that Nathan Narusis advised the company that, as he saw it, the policy, at least parts of it, did not apply to him. It was on December 1, 2011 that the parties agreed that the services of Nathan Narusis were to be provided through his corporation, Nathan Narusis Consulting Services Inc. This serves to establish that at the time Nathan Narusis and Bullion Management parted, the former was not an employee of the latter. The policy did not forbid the use of the e-mail account for personal matters. As the Master noted, the policy stated there was "no guarantee" [that e-mails would remain private]. There was no indication that, at any time or in any circumstance, the private e-mails of Nathan Narusis had been viewed, examined, reviewed or inadvertently opened or discovered. The Master did not err when he found that Nathan Narusis had a reasonable expectation of privacy.
32 The understanding that the Master did not err is underscored by his recognition that there is a distinction to be drawn when the issue at hand involves solicitor-client privilege. The case law supports what the Master determined. Solicitor-client privilege is not just a rule of evidence, it is a fundamental and substantive principle. The privilege must be as close to absolute as possible. In this case, the equities stand in favour of solicitor-client privilege being maintained despite the inadvertence of their release. Finally, the privilege has not been waived.
18The defendant concedes that the first two parts of the test enunciated by the Supreme Court of Canada for solicitor-client privilege are satisfied in this case. Namely, that the emails are: (i) communications between solicitor and client, and (ii) which entailed the seeking or giving of legal advice. The defendant however argues that the third part of the test – that of confidentiality – is not made in out in this case and therefore the privilege does not attach. The defendant also argues, in the alternative, that the plaintiff waived any privilege, although this argument was not pressed.
Were the Emails intended to be confidential?
19The plaintiff says that the emails were intended to be confidential. He argues that he had a clear and confirmed subjective expectation of confidentiality with respect to his emails with the Lawyers and says that the factual circumstances in this case for confidentiality are at least as compelling as the facts in Narusis, if not more compelling.
20The defendant contends that there are a number of factors that distinguish this case from Narusis and that the confidentiality aspect of the test for solicitor-client privilege is not met in this case.
21Given the dearth of authority and the similarity of the facts in Narusis to the case at bar, it is useful to set out Master Dash’s findings at the outset as both parties related the facts in this case to the findings by Master Dash. Master Dash’s findings as reproduced in Justice Lederer’s decision are as follows:7
(i) Solicitor-client privilege is a substantive right and a doctrine of fundamental importance to the operation of our legal system. ... The privilege must be as close to absolute as possible unless the privilege is waived.
(ii) [I]t would set a dangerous precedent to circumvent this privilege whenever an individual happens to use his corporate e-mail account to communicate with his lawyer for the purpose of obtaining legal advice...;
(iii) While [the Master] appreciate[d] [that] other personal e-mails on a work e-mail account may be disclosed as relevant in the circumstances, [he did] not believe that this goes so far as to breach solicitor-clients communications. It would be especially egregious in this case where:
(A) The policy was put in place four years into [Nathan Narusis's] relationship with the company...and where, during that time, he used the business account for personal e-mail without complaint... There is also no evidence that the business e-mail account was ever monitored to ensure compliance.
(B) When the policy was announced, Nathan Narusis did not agree to it or sign the acknowledgement although requested to do so, and where he expressly told the employer that the policy, or at least parts of it, did not apply to him.
(C) Where the [disputed e-mails were] sent in haste, contrary to his usual practice, to communicate with counsel, which he would normally do through his personal computer and where... there was no intention to deliberately use the corporate email account for this purpose or to waive any confidentiality.
(D) Even if the policy applied, [it] simply said that there was "no guarantee" [that e-mails would remain private]... [A]t best, this would show that there would be diminished expectation of privacy but not an extinguishment of it.
(iv) In [the Master's] view, the plaintiff objectively intended to keep the communication to his lawyer as confidential and, in all the circumstances, [the] intention was objectively reasonable.
22The plaintiff’s evidence is that he used his Proex email address for both professional and personal purposes since founding Proex in 1998. After Alten acquired Proex, he continued to use the Proex email address for both professional and personal purposes. He has always believed that his correspondence with his lawyers is protected by solicitor-client privilege.
23Similar to Mr. Narusis, the plaintiff used his company email for personal emails without complaint from Proex. The plaintiff had used his Proex email account for 21 years since he founded the company in 1998, longer than Mr. Narusis’s four years usage of his company email account. The plaintiff never received any type of warning or disciplinary action in connection with his use of his company email account for personal purposes.
24The Emails span the period from January 3, 2019 to November 22, 2019. There are two distinct timeframes: (1) the period when Mr. Leroux was CEO, from January 3, 2019 until January 28, 2019; and, (2) from January 28, 2019 to November 22, 2019 when he was reporting to Mr. Creneau.
25Mr. Creaneu filed an affidavit on behalf of the defendant on the motion and was cross-examined on it. On cross-examination Mr. Creaneu agreed that while the plaintiff was CEO, no one within Proex would have had the authority to access and read the plaintiff’s emails without his consent. The only other person who had access to Mr. Leroux’s email account was the third-party IT provider, who reported to Mr. Leroux.
26On cross-examination, Mr. Creneau agreed that while Mr. Leroux was CEO, “he would have had a reasonable expectation of privacy with respect to his company email address”. Given this concession is it hard accept the defendant’s position that Mr. Leroux did not have a reasonable and objective expectation that his emails were confidential, at least for the period that he was CEO.
27At a time when Mr. Leroux was Executive Vice-President and reported to Mr. Creneau, Mr. Creneau required Mr. Leroux to share his Outlook calendar with him. Given that Mr. Creneau was insisting only on access to the calendar function of Outlook, it was reasonable for Mr. Leroux to continue to believe that his emails remained confidential.
28The court in Narusis looked to whether or not there was an email policy in place. It is significant that at no time until after the plaintiff was terminated, was there any written policy regarding the use of company email accounts at Proex. Proex only put in a written policy regarding the use of emails more than a year after the plaintiff’s termination. That policy provided that it was imperative to mark all private emails with “Private” in the subject line and that use of the internet for personal use during work hours was prohibited.
29Although the defendant acknowledges that there were no written policies, it relies on the fact that the plaintiff acknowledged that “there were rules in place that he was expected to follow, and that following his transition to Vice President, he was subject to more scrutiny and oversight. There is no evidence that the Plaintiff ever refused, or complained about these terms or added scrutiny and the additional monitoring of his activities.”
30Given the fundamental importance of solicitor-client privilege, the vague suggestion that the plaintiff was subject to more scrutiny after the acquisition is not enough to put the plaintiff on notice that his emails with his lawyers were not confidential or that in order to keep them confidential he was required to put “Private” in the subject line.
31The Emails from the Lawyers to Mr. Leroux contained confidentiality warnings at the bottom indicating that the emails were “lawyer client privileged” or state that the communication is “privileged and confidential”, although the subject lines do not indicate that the emails are private and confidential. The explicit confidentiality warnings support the plaintiff’s expectation of confidentiality even though none of the subject lines of the email indicate that they are private, confidential or privileged. The emails from Mr. Leroux to his lawyers did not contain any confidentiality warning or indicate in the subject line that they were private or confidential. Nonetheless, it was conceded that these emails were sent for the purposes of obtaining legal advice. The lack of confidentiality warning on the plaintiff’s emails to his lawyer does not, by itself, negate an expectation of confidentiality.
32The defendant says that the Emails were not made in a confidential setting and that at best, the plaintiff had an unreasonable assumption as to confidentiality and the plaintiff did not take proper steps to ensure confidentiality. The defendant argues that “reasonable does not equal careless” and that where the Emails were made on the assumption of confidentiality, but the plaintiff did not take proper care to ensure privacy, solicitor-client privilege should not attach. The defendant says that it is significant that the plaintiff had access to two other email accounts and that he sometimes used one of his personal emails accounts to communicate with his lawyers. The plaintiff’s evidence was that he used the Proex email address as a matter of convenience because he was forwarding communications to his Lawyers which had come to his Proex account from the defendant. On cross-examination, the plaintiff agreed that by using his Proex email account, there was more risk that his emails with his lawyer would be seen.
33The defendant also points to the fact that the plaintiff, as an information technology professional, understands how emails and servers work and how email can be accessed.
34The defendant contrasted the facts of this case with the situation in Narusis, in which the court found that the emails in question were “sent in haste, contrary to his usual practice, to communicate with counsel, which he would normally do through his personal computer and where... there was no intention to deliberately use the corporate email account for this purpose or to waive any confidentiality.”
35However, in Narusis, the plaintiff was either an independent contractor or an “ordinary” employee (his status was an issue in the case) of relatively short duration, whereas in this case, the plaintiff was the CEO and founder who had used his Proex account for two decades for both business and personal use. While a litigant’s “carelessness” may play a role in determining confidentiality, it needs to be considered in the entire factual context.
36The defendant acknowledges that the plaintiff’s Proex account was never monitored while he was employed. However, it notes that the plaintiff conceded it was important for others at Proex to monitor an employee’s emails while the employee was on vacation or leave, or after an employee was terminated. The defendant then goes on to argue, that while the plaintiff may have believed himself to be exempt, “there is no reasonable basis for such a view”. I disagree. The plaintiff was not in the position of an ordinary employee. He was the founder of the company and CEO and during that time no one had authority to access his Proex email account that he had used for business and personal reasons for two decades. And while he had in the past allowed a subordinate access to his emails while he was away, the important point is that he controlled access to his account. After Mr. Leroux ceased being CEO, he reported only to Mr. Creneau and Mr. Creneau asked for access only to the plaintiff’s Outlook calendar, not email. As earlier noted, the defendant did not put into place a written email policy until after the plaintiff’s termination.
37Given the foregoing, I conclude that the plaintiff expected that the Emails would be confidential and that this expectation was objectively reasonable.
Did the plaintiff waive solicitor-client privilege?
38As I have earlier noted, the defendant did not press the waiver argument. However, I will address it very briefly for the sake of completeness.
39Ordinarily a waiver of privilege requires a “conscious, deliberate decision on the part of the client”.8 Mr. Leroux did not make any conscious decision to waive privilege.
40Nor has there been any implied waiver. A party may waive privilege by implication where the client has put reliance of legal advice in issue.9 Mr. Leroux’s pleadings do not put reliance of legal advice in issue.
Disposition and Costs
41I conclude that the Emails are solicitor-client privileged and should not be included in the defendant’s affidavit of documents. I invite the parties to confer on the appropriate form of order that should flow from this conclusion. The parties should submit an agreed upon form of order to my Assistant Trial Coordinator, Mr. Marco Magnante, for my review. If the parties cannot agree they should contact Mr. Magnante to request a case conference to settle the form of order.
42At the conclusion of the hearing the parties agreed that that an appropriate cost award would be $12,000 (all inclusive) to the successful party on a partial indemnity basis, provided that one party was entirely successful. If I ruled that only some of the Emails were privileged, the parties asked for the opportunity to make costs submission. However, as the plaintiff has been entirely successful, further submissions are not necessary. Therefore, the order in this matter should include a term that the costs of the motion in the sum of $12,000 (all inclusive) be paid by the defendant to the plaintiff thirty days from the date of the order.
L. La Horey, A.J.
Date: January 13, 2022
Footnotes
- R v McLure, 2001 SCC 14 at para 17
- This statement originates in R v McLure, 2001 SCC 14 at para 35 and has been quoted with approval on a number of occasions including in Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 44 at para 9 and Pritchard v Ontario (Human Rights Commission), 2004 SCC 31 at para 18
- Pritchard v Ontario (Human Rights Commission), 2004 SCC 31 at para 15 quoting from Solosky v The Queen (1979), 1979 SCC 9, [1980] 1 SCR 821 at p. 837
- Narusis v Bullion Management Group Inc., 2016 ONSC 4731
- Ibid at para 6 quoting from the unreported decision of Master Dash
- Ibid at para 7 quoting from the unreported decision of Master Dash
- Ibid at para 8 quoting from the unreported decision of Master Dash
- Leggat v Jennings, 2015 ONSC 237 at para 31
- Ibid at para 32