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Ontario Court Bars Opposing Counsel from Utilizing Email Sent by Mistake
Justice George Czutrin of the Ontario Superior Court of Justice refused to grant leave in an application for filing of an affidavit by the applicant that includes an email received by mistake. The email in question is a part of the correspondence between the respondent’s counsel and the counsel of a non-party, in which an earlier appearance of the parties before Judge Czutrin is discussed. A printout of the email was inadvertently included in the materials intended for the applicant by the respondent.
The applicant’s counsel sought leave of the court to append the email in an affidavit on the grounds that it goes to the merits of a pending motion, in which the applicant is requesting to examine the non-party, the same non-party in the email, prior to trial.
Justice Czutrin refused to grant leave to admit the email into evidence; he held that as a general rule the court should discourage counsel from taking advantage of mistakes by opposing counsel. In discussing potential circumstances under which such mistakenly received correspondence may be used, Justice Czutrin remarked it would be only:
...where the probative value significantly and materially outweighs the prejudice and the civility and avoidance of sharp practice that counsel owe to each other and the administration of justice
He then listed some situations where this type of material might be admissible:
- the interest of justice requires admission because to do otherwise would result in miscarriage of justice; or
- not disclosing or admitting certain facts or information would hide a criminal act or endanger a person.
Justice Czutrin found that the email in question did not meet any of the above criteria and was therefore inadmissible; it was ordered that the email be struck from the record.
For a copy of the decision, visit:
Phyllis Boyd v. Brian Dennis Fields s