Reminder: HR Advice To Management Is Not Privileged

Guthrie v. St. Joseph Print Group Inc., 2018 ONSC 1411

In a decision released February 9, 2018, an Ontario Master rejected the claim by an employer that communications between management and its human resources advisors were privileged. Two forms of privilege were claimed: litigation privilege and common law privilege, sometimes referred to as "Wigmore" privilege.

The Facts

After more than 30 years of employment, the plaintiff ("Guthrie") was placed on a performance improvement plan in which he was required to meet sales targets, and later failed to do. After his salary was cut back, he left his employment and sued for constructive dismissal.

In the course of examinations for discovery of the defendant employer ("St. Joseph Print"), Guthrie became aware of the existence of five undisclosed email chains between senior management and the human resources department ("HR"). St. Joseph Print claimed privilege over those emails and refused to produce them. Guthrie brought a motion seeking their production.

St. Joseph Print conceded that the emails were relevant but argued that they should not be disclosed because they either met the test for litigation privilege or the Wigmore test for a privileged document at common law.

St. Joseph Print led evidence that senior management relies on its HR department as trusted advisors for full and frank "without prejudice" discussions. The HR department provided opinions and advice on how to cautiously proceed while minimizing legal risks. St. Joseph Print contended that the emails between senior management and HR and were confidential and exchanged in a zone of complete privacy where the parties to the emails could share full and frank opinions on the strategy and management of Guthrie's poor performance. Otherwise, the HR department's usefulness would be diminished and its role would be limited to an administrative function rather than an advisory one.

St. Joseph Print also contended that the communications' dominant purpose was the discussion of anticipated litigation and legal strategy. It argued that the solicitation of advice from its senior HR professionals on legal considerations was evidence that litigation was foreseen as a real possibility and it wanted to minimize that risk.

Decision

The Master ordered that the email chains be produced.

The Master rejected the argument that litigation privilege applied: in order for litigation privilege to apply to a communication or document, it must have arisen...