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Nearly all regular users of email have experienced it:  that sinking feeling that follows the delivery of an email that was accidentally copied to the wrong person.  Not to mention the profound disappointment that the “recall message” feature doesn’t actually recall the message in any meaningful way.  In one employment case currently before the Ontario Superior Court of Justice, that mistake has resulted in a former employee considering herself to have been fired and launching a wrongful dismissal claim. The claim has not yet been decided on its merits, but it has been judicially considered on a motion brought by the employer to exclude from evidence the email that triggered the claim.  The request for such exclusion was made on the basis that the email was protected by lawyer-client privilege.  That argument was rejected by the Motions Judge, whose decision wasupheld on appeal by the Divisional Court.  As a result, the claim will continue with the plaintiff permitted to rely upon the email at trial. The essential facts, as reported in the Divisional Court appeal decision, are as follow.  The plaintiff, Maria Fernandes, worked for the defendant company, Marketforce Communications Inc.  One fateful day, she was copied on an email her manager sent to the company’s lawyer.  In the email (which included earlier messages between the manager and another manager in the company) were references to the possible termination of Ms. Fernandes’ employment and a request that a conference call be arranged with the lawyer to discuss the matter. The manager promptly realized her error and tried to recall the message (three times).  She then sent another message to Ms. Fernandes saying the email was sent in error, was privileged and confidential and that she should delete it without reading it or making a copy.  Not surprisingly, Ms. Fernandes did read the message and sent a copy to her own lawyer. She then went on vacation.  On her return, she notified her employer that she considered herself to have been fired by the email and shortly thereafter commenced a wrongful dismissal claim. The employer brought a motion for a declaration that the email was protected by lawyer-client privilege and could not be relied upon in the litigation by the plaintiff.  Justice Sproat found that the email was in fact subject to lawyer-client privilege and that its inadvertent disclosure did not waive that privilege (because the mistake was excusable and an immediate effort was made to immediately retrieve the information).  Nonetheless, Justice Sproat held that it would be unfair to the plaintiff to not permit her to use the email at trial.  The “interests of justice”, in other words, trumped what would otherwise be a privileged lawyer-client communication. The Divisional Court agreed with Justice Sproat.  As a result, the litigation continues with the email playing the starring evidentiary role. What remains to be seen, of course, is whether Ms. Fernandes (presumably based on the advice of her lawyer) was right to have considered her employment terminated as a result of her receipt of the email.

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