One thing I love about being a litigation lawyer, even a somewhat old and specialized one like me, is that there is always something new in the case law that can greatly impact Superior Court wrongful or constructive dismissal litigation.
In Superior Court litigation, each party has to produce a sworn affidavit of documents and send it to the opposing lawyer. This rule is designed to ensure fairness and encourage settlement before trial.
Typically, what one sees from the corporate defendant (the employer) are policies coming from the HR department or discipline notes to the employee coming from that department in the affidavit of documents.
What about emails from the HR department to management about the employee- should they be produced in the defendant’s affidavit of documents, or can the employer try to refuse to produce them by claiming “litigation privilege”?
Litigation privilege should be specifically claimed in Schedule B to an affidavit of documents and the name and date of the documents for which the employer is claiming this privilege need to be set out.
This litigation privilege applies to certain documents created when litigation is likely- the usual example is a train derailment where the railway investigators come out and interview the injured passengers and crew and write out witness statements and incident reports- the court would be given the documents by the railway who would claim litigation privilege and the court would heard arguments from both sides as to whether any lawyer had written a demand letter yet etc and then would decide whether the documents had to be produced.
The Superior Court of Justice in Ontario ruled on litigation privilege and Human Resource Department advice documents to management in the 2018 decision of Guthrie v St. Joseph Print Group.
The court ruled that in most cases, these Human Resource department memos to management or email exchanges with management have to be produced in the defence affidavit of documents.
This should be a real boon to plaintiff lawyers looking for the real reason something happened to their client.
I suspect most employment lawyers do not know of this important decision and should be on the lookout for such omissions in employer affidavits of documents.