The Ontario Superior Court of Justice has recently provided a helpful reminder that advice given by human resource (“HR”) managers is not, by itself, protected from disclosure in litigation by privilege. This was the conclusion of the Court in Guthrie v. St. Joseph Print Group Inc., 2018 ONSC 1411.
In that case, the Plaintiff alleged he was constructively dismissed after the Defendant employer reduced his salary by 10% when he failed to complete a performance improvement plan. In the course of litigation, the Plaintiff learned that there were five undisclosed emails between the Defendant’s senior management and its HR department. The Plaintiff sought production of those emails. The Defendant claimed privilege over the emails and refused to produce them. In response to the Plaintiff’s motion, the Defendant put in evidence from its management that it relied on its HR department as trusted advisors for full and frank “without prejudice” discussions and expected the HR department’s communications to be confidential.
The Defendant first argued the emails were protected by litigation privilege, which will apply to a communication or document arising in circumstances where litigation is reasonably anticipated and the dominant purpose of the communication is connected to the litigation. In this particular case, however, the Court held that litigation privilege did not apply to the emails because they were sent a year before the Plaintiff resigned and claimed wrongful dismissal and the emails themselves related to performance management of the Plaintiff.
The Defendant next tried to argue that the emails were protected by a common law privilege, often called “Wigmore privilege”. A document will be subject to common law privilege when (1) the information or communications originates in confidence; (2) the element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties; (3) the relationship must be one which in the opinion of the community ought to be sedulously fostered; and (4) the injury that would inure to the relationship by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
The Court held that common law privilege did not apply to HR communications. While the authors may have expected their emails to be confidential, more was required for common law privilege.
In considering the second and third elements of the test, the Court made the observation that confidentiality between management and the HR department was not exclusive – HR helped both management and other employees. Accordingly, it could not be said that, absent any threat of litigation, the usual relationship between HR and management was not one in which confidentiality was critical or one in which the community would expect to be fostered.
Lastly, the Court concluded that prejudice caused by the disclosure of the email would not be outweighed by the normal disclosure process in litigation, which itself was a significant right of parties in litigation.
While this case is not a British Columbia authority, it nonetheless provides a useful reminder to employers that the communications of HR managers are not protected, unless they are prepared for the purposes of litigation which was reasonably anticipated. The key take away from this case was summarized by the Court as follows: “If management seeks confidentiality in dealing with an employee, it should consult with counsel and not its HR department.”