Employment & Labour

Not a privilege between management and HR

By Barry B. Fisher

In this case, Master Champagne had to decide whether a series of emails between senior management and the human resources department had to be produced in an Affidavit of Documents.

The plaintiff alleged that he was constructively dismissed when after 34 years as a salesman his compensation was reduced by 10 per cent after being placed on a Performance Improvement Plan.

The defendant claimed privilege on two grounds:

Litigation privilege: Because the emails in question were about a year before the constructive dismissal, the Master held that it is not plausible that the defendant contemplated litigation that far in advance and that because the predominant purpose of the emails was performance issues, no privilege applied.

Wigmore test: There are four required parts to the common law test as to whether or not a non-statutory privilege should exist.

  1. The information or communications 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 Master held that items one and two of the test applied.

Regarding item three, the Master found that there was not convincing evidence that in the community there was an opinion that the relationship between management and HR required confidentiality in order.

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