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Digest of the Week | Discovery of documents

Digest of the Week | Discovery of documents

Plaintiff emails to counsel on corporate server were subject to solicitor client privilege.

Narusis v. Bullion Management Group Inc.
(2016), 2016 CarswellOnt 13835, 2016 ONSC 4731, Lederer J.
Ontario Superior Court of Justice

Discovery -- Discovery of documents -- Privileged document -- Solicitor-client privilege

Plaintiff provided consulting services to defendants -- While working in that capacity, plaintiff required access to email -- He was permitted entry to corporate server and assigned corporate email account -- Defendant's policy manual provided that email transmitted through corporate account was not guaranteed to be private and could be subject to inspection and control -- Defendants terminated plaintiff and he brought action for wrongful dismissal -- In discharging their discovery obligations, defendants searched corporate email account -- Counsel for defendants discovered seven emails that contained communications between plaintiff and his lawyers -- Defendants brought motion for, among other things, determination that emails were not subject to solicitor-client privilege -- Master found emails were subject to solicitor-client privilege and need not be produced -- Defendants appealed -- Appeal dismissed -- Master did not err when he found plaintiff had reasonable expectation of privacy -- Plaintiff had used computer in respect of personal matters for four years before policy conditioning or limiting its use for that purpose was put in place -- When policy came into effect, plaintiff refused to sign it -- Equities stood in favour of solicitor-client privilege being maintained despite inadvertence of their release -- Privilege was not waived.
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