In Jean-Sébastien Leroux v. Proex Inc., 2022 ONSC 319, an employee made a mistake that no employee should make: they used their work email address to communicate with their wrongful dismissal lawyer. This is dangerous. If your employer is able to access your work email, then you run the risk of them discovering the confidential legal advice you received from your lawyer.

In this case, the employer went further than simply discovering the emails – they attempted to rely on them in a wrongful dismissal proceeding. The employer included emails between employee and lawyer in their affidavit of documents. The employee, in response, brought a motion to the Ontario Superior Court seeking an order that the emails be removed from the affidavit of documents on the basis that they are protected by solicitor-client privilege. Further, the employee sought an order requiring the employer to return the emails and destroy any copies.

The Law: Solicitor-Client Privilege

Whether the employer would be able to use the emails depended largely on whether they fell within the category of solicitor-client privilege. According to the Supreme Court of Canada, solicitor-client privilege is “fundamental” to the Canadian legal system and has “evolved into a fundamental and substantive rule of law.” They have said that solicitor-client privilege must be “as close to absolute as possible to ensure public confidence and retain relevance.” Clearly, the importance of solicitor-client privilege will not be easily overcome.

What does solicitor-client privilege apply to? According to the Supreme Court, the privilege applies to:

  • a communication between solicitor and client;
  • which entails the seeking or giving of legal advice; and
  • which is intended to be confidential by the parties.

The privilege covers any consultation for legal advice, whether litigious or not. To be privileged, there must be a subjective expectation of confidentiality which is reasonably objective in the circumstances.

Application to the Case

In this case, the employer admitted that the first two branches of the test were met. However, they argued the emails were not protected by solicitor-client privilege because they were not “intended to be confidential by the parties.” On the other hand, the employee argued that the emails were intended to be confidential and that he had a clear and confirmed subjective expectation of confidentiality with respect to the emails.

The employee had been using his business email for both professional and personal purposes ever since the founding of the employer company. He had been doing this for 21 years. The employer never complained about this practice. Furthermore, it was admitted on cross-examination that nobody within the employer’s organization would have had the authority to access and read the employee’s emails without his consent. For that reason, the employee would have had a reasonable expectation of privacy when it came to his business email.

The employer also never had a policy concerning the use of company email accounts. There was accordingly nothing to put the employee on notice that his emails with his lawyers were not confidential. In any event, the emails the employee received from his lawyers contained confidentiality warnings at the bottom. As such, there were explicit confidentiality warnings contained within the emails.

Given all of the above, the trial judge concluded that the employee expected his emails to be confidential and that this expectation was objectively reasonable. As a result, the emails contained all three elements of solicitor-client privilege and were consequently protected. The trial judge concluded that the emails should not be included in the employer’s affidavit of documents.

This was a costly decision for the employer. The trial judge found the employee to have been “entirely successful”, and ordered the employer to pay the employee $12,000 to cover his legal costs. Employers should be aware of the near absolute nature of solicitor-client privilege and should be very careful to not act contrary to it.