This blog is written by our law summer student, Ira Marcovitch.
For any of us whose job or life involves a healthy amount of e-mailing, it’s the button we love to hate: the sometimes-useful-but-more-often-mistakenly-used “reply all” button. More often than not, the result is harmless; we mistakenly send a personal email to a co-worker, or mistakenly receive something similar. But what happens when you receive an email from your boss that was not only not meant for your eyes, but discussed whether or not you should be fired? Enter Maria Fernandes.
In March 2011, Ms. Fernandes, then Director of Client Services at Marketforce Inc., received an e-mail that her boss had intended for the company’s lawyers. The contents of the email were pretty straightforward, and damaging. It was a request for advice from the lawyers as to how Ms. Fernandes could be let go from the company. Documents filed in the Ontario Superior Court allege that Linda Guerin, Ms. Fernandes’ boss, immediately realized her mistake and, like many of us, immediately tried to rectify it. She sent three recall notices and finally sent Fernandes an email asking her to delete the unintended delivery without reading it. However, Ms. Fernandes did read the e-mail, and treated its contents as a constructive dismissal. Like anyone would, Ms. Fernandes copied the email and contacted a lawyer. And like anyone would, she went on vacation. Upon her return, she informed the company that she considered herself fired by email, and shortly after commenced a wrongful dismissal claim.
While the case has yet to be decided, the company brought a motion for a declaration that the email was protected by solicitor-client privilege and that Ms. Fernandes could not rely on it in her claim. The motions judge, with whom an appeals judge agreed, found that the email was privileged and that its inadvertent disclosure did not amount to a waiver of that privilege.
Nonetheless, the judge decided that it would be unfair, both to Ms. Fernandes and to the judge who would eventually hear the case, to exclude the e-mail. He determined that the trial judge would have to determine whether Ms. Fernandes acted reasonably in treating the email as constructive dismissal and that, without the email, he could only rely on second-hand inferences from Ms. Fernandes’ behaviour. The interests of justice and fairness, he determined, would be best served by having the judge have access to the email. While the judge realized the unfairness that may befall the company by allowing the email in, he noted that while unfortunate, it was their own mistake that created the whole mess.
While the eventual decision will have implications as to what can constitute constructive dismissal, and whether Ms. Fernandes was right to treat the errant email as akin to a pink slip, the story so far contains some equally important lessons. Foremost, as we all know, the “reply all” button can have serious consequences; while they range from the mildly embarrassing email you mistakenly sent your boss about your weekend, to the devastating e-mail he or she mistakenly sent to you about your termination, we should all take an extra second before we click ‘send’ on our next email. Secondly, this case raises an important point about privilege.
Should an email be excluded from protection because the party mistakenly sent it and the recipient party relied on it in commencing litigation against the former? The judge had noted that the boss had taken all reasonable steps to preserve the confidentiality of the email and that the privilege itself remained intact; so why should they be penalized because the steps taken were for naught? Further he determined that the contents of the email could be introduced into court without introducing the email itself, namely by questioning witnesses, which makes the disclosure seems more convenient for the interests of justice rather than necessary. Regardless, I’m sure we will wait with bated breath for the determination of the case; but in the mean time I know I will check twice before I next hit ‘send.’
For the appeal decision of the motion: click here.