Former chief commercial at TerraFarma not entitled to documents detailing legal advice amidst workplace investigation: Ontario court

A worker checks plants at a cannabis farm. Photo: S. Salman/Canva

The Ontario Superior Court of Justice has ruled that the former chief commercial officer at cannabis company TerraFarma cannot access documents detailing the legal advice received by the company amidst a workplace investigation that led to his dismissal for cause.

The former employee, TM, sought documents and answers related to his alleged wrongful dismissal, claiming the company waived its right to keep certain legal advice confidential.

TM argued that TerraFarma (which was acquired by Aurora Cannabis in 2022) had waived its solicitor-client privilege, a claim rooted in the disclosure of legal advice within the 755-page investigation report. The report was issued on Feb. 11, 2021, and TM was fired on March 4, 2021.

This report, which included a summary of an interview with a board member, hinted at prior legal counsel suggesting the possibility of termination without cause. The plaintiff’s legal team contended that this, among other instances, constituted a waiver of privilege, potentially affecting the legality of the termination and justifying claims for damages.

However, the court concluded that TerraFarma had not waived its privilege. It highlighted several key points:

  • the board member did not have the authority to waive privilege,
  • the disclosure of advice did not inherently suggest an intent to waive privilege, and
  • the defendant had not relied on the disclosed advice in any subsequent legal or procedural steps.

The court also emphasized the sacred nature of solicitor-client privilege, which can only be set aside in clear and distinct circumstances.

“It bears repeating that the defendant did not rely on the legal advice in question and does not intend to rely upon it in these proceedings,” the Court said. “On the contrary, the defendant relies on the conclusions of the investigator as set out in the report that the plaintiff engaged in misconduct and that these conclusions justified termination of the plaintiff’s employment with the defendant for cause.”

Ultimately, the judge denied the plaintiff’s request for further document disclosure related to the legal advice, maintaining the confidentiality of the solicitor-client communication.

The court ordered the plaintiff to make amendments to their filing and awarded costs of $3,000 to the defendant, inclusive of taxes.

For more information, see Masse v. TerraFarma Inc, 2024 ONSC 789 (CanLII).

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