Guthrie v St. Joseph Printing- what we have not known over the years may have been hurting us
INTRODUCTION
My introduction to employment law happened 26 years ago via a great constructive dismissal case called Lerch v Cableshare. It took the trial judge 12 months to write his lengthy but interesting reasons for decision. Like many in the litigation bar, my career followed a path shaped by one case.
Thus, what followed was years and years of employment cases, mostly plaintiff based as I am a sole practitioner, but not labour law (union) cases.
THE DISCOVERY OF THE GUTHRIE DECISION
Like many of you, Simplified Rules cases make up the bulk of my practice.
I had one a year or two ago where the regular (Bardal) damages were quite low because of early mitigation, short service etc but human rights non pecuniary damages and possible punitive damages were possibly in the picture to make a case in the 40-60k range. My client had been a difficult employee because of his human rights issue.
The defence produced what appeared to be a decent sworn AOD that had various emails to and from my client from bosses, sometimes copied to HR and the occasional email to my client from HR over the appropriate periods of time. The defence deponent was a decent chap, as was the defence lawyer doing the discovery- altogether nothing remarkable and the discoveries were done quickly, as they should be for a case of that size.
The matter made its way surprisingly to trial. We served the plaintiff side trial affidavits and then received the defence trial affidavits.
During the scrutiny of the defence trial affidavits, it became apparent that there were many times when bosses had emailed HR about my client and received emails back about my client, and these emails were not in the defence AOD.
It was then, during my musings about how to handle this late development in a small pending Simplified Rules trial, with the inherent difficulties of proving human rights damages by inference, that I came across the Guthrie decision.
THE GUTHRIE DECISION
Guthrie v St. Joseph Print Group is a 2018 motion decision reported at 29 C.P.C. (8th) 226, decided by Master Champagne.
It was a constructive dismissal case.
I doubt it was a Simplified Rules case because the plaintiff had been with the defendant 34 years.
During the examinations for discovery, plaintiff’s counsel found out about five undisclosed email chains between management and the HR department about the plaintiff that seemed to him to have relevance and thus he brought the subject motion to compel the defendant to produce those undisclosed emails.
The defence/employer resisted production of the emails. It gave the emails to the Master.
The defence position relied on the Wigmore criteria.
Wigmore’s four criteria are:
1. The information or communication must originate in a confidence that they will not be disclosed
2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties
3. The relation must be one which in the opinion of the community ought to be sedulously fostered
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 defence argued that the relationship between management and the HR department satisfied the Wigmore criteria and cited several labour arbitration case precedents for that proposition.
Master Champagne in paragraph 18 of her decision stated that an HR department in a non- unionized environment serves both management and the employees, as compared to a unionized environment where it only serves management.
She thus found that factors three and four from the Wigmore criteria were not fulfilled.
She went on to state in paragraph 23 “if management seeks confidentiality in dealing with an employee, it should consult with counsel and not its HR department.”
She ordered the defendant employer to produce the subject emails.
THE CONSEQUENCES OF THE GUTHRIE DECISION
At discovery, as plaintiff’s counsel, ask if there are any emails/texts to and from HR to management seeking/giving advice re the subject employee.
Many of our leading defence/management side lawyers and their staff have their main training/experience from labour law and it looks like the labour law decisions have held that such emails/texts are privileged and do not need to be produced.
FOR DISCUSSION ANOTHER TIME/ANOTHER PAPER, by the group over drinks?
I decided (per the general tenor of Rule 76) not to bring a motion before trial about the emails to and from HR and management in my case that appeared to exist, given the defence trial affidavits. Instead, I cross examined the defence affiants extensively to prove their existence and non- disclosure in the defence sworn AOD and then asked the trial judge in my written submissions to make an adverse inference to prove the dismissal was for grounds outlawed by the Human Rights Code. Defence trial counsel made the good argument that I could have asked the defence to produce the documents to the trial judge and then if they were ordered produced we could have come back at a later time to finish the trial. I made the better (in my humble view) argument in my Reply written submissions that the defendant could have offered at trial or in its written submissions to simply tender the subject emails to the trial judge for a decision on whether they should be produced. The failure of the defence to make that offer to the trial judge, in my submission, should give rise a great inference that the subject emails contained comment that contravened the Human Rights Code.
The defence firm and defence counsel at trial and discovery are very ethical and competent and thus I will never know if the impugned emails were simply missed in the AOD creation by a clerk, or if the firm’s view, or client employer’s view, was that they were privileged as per the labour law line of cases.
Unfortunately for the Bar, the trial judge reserved and when his decision was released six months later, did not deal with these issues.
Jonathan Pitblado of J Pitblado Law Office, London
August 31, 2022
