Whether we like it or not, most of us find ourselves spending a significant part of our work week receiving and responding to e-mails. It might be to set up an appointment with a client, ordering stock from a supplier, or even sharing a joke with a colleague. However, sometimes in an attempt to be efficient in the midst of this digital mayhem, we make the mistake of hitting the ‘reply-all’ or ‘send’ button too quickly and this can have real consequences. In Maria Fernandes’ case, it lead to an action against her employer for wrongful dismissal.
In March 2011, the Director of Operations of Marketforce Communications Inc. inadvertently copied Ms. Fernandes on an email that was intended to be read only by the company’s lawyers. The contents of that email contained references to the termination of Maria’s employment. Realizing what had transpired, the Director tried to quickly recall the email by sending out three recall notices. She then sent an email directly to Maria demanding her to delete the message without reading it as the email was privileged and confidential. However, Ms. Fernandes did read the email and provided a copy to her lawyer. Upon returning from vacation, Ms. Fernandes told Marketforce that she interpreted the email as constructive dismissal and commenced a wrongful dismissal action.
Although the outcome of this case has yet to be determined, Marketforce brought a motion for a declaration that the email is protected by solicitor-client privilege so that Ms. Fernandes should not be able rely on it. The court agreed that the email was part of privileged solicitor-client communication and that the disclosure itself does not waive privilege. Even so, the judge ruled that excluding the email would be unfair to both Ms. Fernandes and the trial judge who would hear this case at trial. Without this evidence, the trial judge would not have a complete picture as to what really transpired and it would be difficult for Ms. Fernandes to show how the email affected her state of mind and to show that she had acted reasonably in the situation.
While we will have to wait to find out whether Ms. Ferndandes was right in her interpretation of this email as a constructive dismissal, there are a couple overarching lessons that we can learn. First, situations like Ms. Fernandes’ are very easy to avoid by simply paying attention to whom the email is being sent to. Second, in some situations, in the interest of justice the courts are inclined to allow parties to rely on privileged information, even where the sending party has taken all reasonable steps to preserve the integrity of the privileged communication. The ultimate message here? Watch who you’re sending your emails to, otherwise they could be used against you!
Colleen Hoey is an Ottawa-based lawyers practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.
Thanks to Mehran Wancho (summer student at Mann & Partners, LLP) for contributing this article.