Solicitor-client privilege is one of the most important aspects of litigation, because it protects communications between a client and their counsel regarding legal advice, litigation strategies, and other private information. Keeping these records privileged helps all parties develop a strong case without fear of interference or an imbalance of information. However, sometimes, whether accidentally or otherwise, using legal or illicit means, one party gains access to the other side’s communications. Even when dealing with privileged emails, there might not be legal repercussions if the court finds no genuine prejudice was caused. “Prejudice” occurs where some incompetence or wrongdoing on the counsel’s part may have significantly altered the verdict, or otherwise compromised the accused’s right to a fair trial.
Accessing Private Communications Using Legitimate Authority
In Gojkovich v Buhbli Organics Inc. (“Gojkovich”)[1], the Court decided that accessing the opposing party’s privileged information was not fatal to the Applicant’s motion. In Gojkovich, the Applicant (Gojkovich) sought to add a new Respondent (Buhbli Brands Inc.) to her prior oppression remedy application against John Rody and his companies. As the co-owner of one of these companies, Buhbli Organics, she used her administrative privileges to access Rody’s work email and uncover evidence that Rody set up Buhbli Brands to discreetly continue his activities. In the process, she also obtained emails between Rody and his lawyers, which she then sent to her own lawyers. Gojkovich’s lawyers did not read these emails.
The Respondents sought to dismiss Gojkovich’s motion on the grounds that her access to privileged communications was not only disqualifying, but warranted her counsel being dismissed. The Court disagreed, finding that Gojkovich did not betray anyone’s reasonable expectation of privacy and that no privileged information was used in her affidavit.
[1] Gojkovich v Buhbli Organics Inc., 2023 ONSC 7254.
Unlike in other cases where plaintiffs hacked into computers to access emails – an illegal action that warranted the court dismissing their lawyers – in Gojkovich, the Applicant used her authority as an owner of the company to view the emails. Furthermore, the Court stated that there is “no reasonable expectation of privacy, absent an express policy” for emails used to facilitate misconduct, as was the case with Rody.[2]
Three-Step Test for Determining a Privileged Information Remedy
The general laws of disqualification may still apply where privileged information is obtained legitimately. A law firm can be disqualified for obtaining the confidential information of an opposing client, especially when the other side is unavoidably prejudiced as a result.[3]
In 2177546 Ontario Inc. v. 2177545 Ontario Inc.[4], the party who obtained privileged information read and retained copies of the emails, which included legal advice and strategy. As a result, their application was dismissed. However, in Gojkovich, Gojkovich did not use the privileged information to support her motion, nor did her lawyers ever read it.
There is a three-step test for determining whether obtaining privileged information warrants a remedy to the other party:
- Did the party obtain access to relevant privileged material?
- If so, the party has the onus of rebutting the presumption of prejudice.
- If they fail to rebut the presumption, the Court will decide an appropriate remedy.
Gojkovich easily failed the first step, as she admitted to reading privileged documents, including ones capable of prejudicing the other side. At the second step, however, the presumption of prejudice requires a reasonable belief that the documents were used to influence the result. Given that Gojkovich kept the privileged emails separate from the non-privileged ones, that her lawyers never read the privileged emails, and that the Respondents’ lawyers were informed that the documents were obtained, Gojkovich was able to rebut the presumption on a “reasonably informed person” standard.,
[4] 2177546 Ontario Inc v 2177545 Ontario Inc, 2023 ONSC 7254 at paras 37-40.
What Happens If You Obtain Privileged Information?
If you are involved in litigation and have come into possession of the other party’s private emails, you haven’t necessarily sunk your case. Gojkovich shows that taking measures to avoid using this information, and proving that it was obtained legally, is an effective defence if the other party tries to claim a remedy from you.
This issue often arises in shareholder disputes. At Walker Law, our experienced litigation team can provide representation if you or your company are attempting to resolve a commercial or employment case. If so, we highly encourage you to contact us for a consultation.