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A Virtual Horror Story: Improperly Sent Email Proves Costly for Employer

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Getting Ready for Bill C-65
27 Feb at
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The legal requirements on how to prevent and address workplace harassment and violence will change for employers in federally-regulated industries after Bill C-65 comes into force later this year. Are you ready? To prepare, you will want to ensure that your policies, employee training, incident prevention protocol, resolution procedure and investigation process all comply with the new requirements.

With the frequent use of email in the workplace, it is not surprising that the occasional embarrassing message has been sent to the wrong user. A recent decision of the Divisional Court, however, should caution all employers that an inadvertent email may not only be embarrassing but can also have significant legal consequences.

In Fernandes v. Marketforce Communications, the employer drafted an email to its lawyer seeking advice on terminating the plaintiff’s employment. In an unfortunate error, the employer included the plaintiff as the recipient of the email. Once the employer realized that the plaintiff had been copied on the email, it immediately sent three recall notices. The employer requested that the plaintiff delete the email without reading or copying its contents, as they were confidential.

Despite these requests and perhaps not surprisingly, the plaintiff read the email, copied it and forwarded it to a lawyer to review. The plaintiff then refused to return to work arguing that her employment had been terminated by way of this email. The plaintiff subsequently commenced a claim for wrongful dismissal and relied on the email as evidence of her dismissal.

The employer tried to restrict the use of the email at trial, arguing that it was protected by solicitor-client privilege (as it was between the employer and its lawyer) and, therefore, confidential.  The motion judge, however, found that despite any argument for confidentiality, it would be unfair to the plaintiff if she could not be allowed to rely on the email that had made her believe her employment was at an end. The employer appealed the motion judge’s decision but was equally unsuccessful at the Divisional Court.

The Divisional Court agreed with the motion judge that when determining whether confidentiality and privilege should be waived after an inadvertent disclosure, fairness to the parties is a key consideration.  The Divisional Court agreed that, without the use of the email, the plaintiff would be at a significant disadvantage in establishing that her actions and conclusions with respect to her employment were reasonable since the email was the catalyst for her decisions. The Divisional Court, therefore, ordered that the email could be relied upon for the purposes of the wrongful dismissal claim.

This decision shows that a court will carefully consider the context in which an inadvertent disclosure is made and solicitor-client privilege will not always protect confidential information.  This case serves as a warning to employers to review the list of recipients on confidential emails so that they may avoid bolstering the wrongful dismissal claim of terminated employees.  While the sheer speed of email communication is often seen as an advantage, this decision demonstrates that it can also prove costly for employers who are not diligent in reviewing emails before clicking “send”.

Parisa Nikfarjam