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The Ontario Superior Court of Justice has held that human resources advice is not necessarily legally privileged in Guthrie v. St. Joseph Print Group Inc., 2018 ONSC 1411 (CanLII).
Two years ago, Mr. Guthrie brought a claim for constructive dismissal against his former employer, the St. Joseph Print Group. The case is ongoing. Earlier this year, Mr. Guthrie sought the disclosure of email correspondence between his managers and the company’s human resources department. The company argued that the emails in question are protected by both litigation privilege and common law privilege.
Litigation privilege applies to any communication that originated “in reasonable anticipation” of litigation, provided that the communication’s “dominant purpose” was the anticipated litigation. Common law privilege applies to any communication that meets the following four criteria, known as the Wigmore test:
1. The parties must have understood themselves to be communicating in confidence.
2. The ability to communicate in confidence must be essential to the relationship between the parties.
3. The relationship between the parties must be in the public interest. For example, the journalist-source relationship is in the public interest.
4. The public interest in preserving the relationship between the parties must outweigh the public interest in barrier-free litigation.
The court held that the emails are protected by neither litigation privilege nor common law privilege. They are not protected by litigation privilege because the “dominant purpose” of the correspondence was Mr. Guthrie’s job performance. Moreover, some of the emails were sent a full year before Mr. Guthrie’s departure, and there is no evidence that litigation was reasonably anticipated at the time.
The emails are not protected by common law privilege because management does not have a confidential relationship with the HR department. In non-unionized workplaces, the HR department generally serves non-managers as well as managers. The court acknowledged that common law privilege has been found to apply to HR advice in unionized workplaces, which suggests that the common law privilege claim would have succeeded if the St. Joseph Print Group had been unionized.
Employers in non-unionized workplaces can no longer assume that HR advice is legally privileged, and should strive be aware of the requirements of both litigation privilege and common law privilege.
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