Reminder: HR Advice To Management Is Not Privileged

Guthrie v. St. Joseph Print Group Inc., 2018 ONSC 1411

In a decision released February 9, 2018, an Ontario Master rejected the claim by an employer that communications between management and its human resources advisors were privileged. Two forms of privilege were claimed: litigation privilege and common law privilege, sometimes referred to as "Wigmore" privilege.

The Facts

After more than 30 years of employment, the plaintiff ("Guthrie") was placed on a performance improvement plan in which he was required to meet sales targets, and later failed to do. After his salary was cut back, he left his employment and sued for constructive dismissal.

In the course of examinations for discovery of the defendant employer ("St. Joseph Print"), Guthrie became aware of the existence of five undisclosed email chains between senior management and the human resources department ("HR"). St. Joseph Print claimed privilege over those emails and refused to produce them. Guthrie