The Saskatchewan Court of Appeal has ordered SaskTel to release customer information to help identify anonymous defendants in a defamation lawsuit involving alleged workplace sexual harassment claims, overturning a lower court’s decision that the documents were protected by solicitor-client privilege.
R.B. sued several anonymous defendants over allegedly defamatory posts on an Instagram account called “victimsvoicesregina.” He claimed one defendant created a false story alleging he sexually harassed her during her employment, then shared it with account administrators who published it without verification. B. sought $1 million in damages plus punitive and aggravated damages.
The case shows how workplace harassment allegations can spread through social media, creating legal challenges for employers and employees when anonymous accounts are involved.
Seeking anonymous defendants’ identities
To serve his lawsuit, B. needed to identify the anonymous defendants. He applied for court orders requiring three internet service providers — including SaskTel — to disclose customer information linked to specific IP addresses that accessed the Instagram account.
A cyber security investigator hired by B.’s lawyers reviewed information from Facebook and determined the anonymous defendants accessed the account through the three providers. The investigator created a chart showing login dates, times, IP addresses and service providers.
SaskTel opposed the disclosure request, arguing the documents were protected by solicitor-client privilege and B. had not proven the IP addresses were connected to his case.
Lower court blocks disclosure
The Court of King’s Bench dismissed B.’s application against SaskTel after the company argued any identifying documents were held in its legal department files related to separate litigation involving similar disclosure requests.
The chambers judge concluded that “any information contained in any legal files held by a lawyer for SaskTel is cloaked in solicitor-client privilege and confidentiality and not subject to Rule 5-15(1) or a Norwich application.”
The judge added that “the confidentiality principle clearly trumps the request for disclosure of these legal files in this application.”
Appeal court finds legal error
The Court of Appeal found the chambers judge made several legal errors in his analysis of solicitor-client privilege.
The appeal court emphasized that documents are not automatically privileged simply because they sit in a lawyer’s office. “A document, or information contained in a document, is not solicitor-client, or otherwise, privileged just because it is kept on a lawyer’s file, or kept in a file in a corporate legal department,” the court wrote.
The court explained that privilege requires three elements: communication between a solicitor and client, seeking or giving legal advice, and intention that the communication remain confidential.
“The nature or content of the communication must involve legal advice. A lawyer must be acting as a lawyer giving legal advice rather than in some other non-legal capacity,” the court stated, citing previous case law.
Company failed to prove privilege
The appeal court found SaskTel provided no evidence the documents were actually privileged beyond stating they were held in legal files.
“SaskTel did not provide any evidence that would allow a court to conclude that the electronic records, account holder documents, or information contained in documents it held in its legal files constituted a communication between a solicitor and a client that involved the seeking or giving of legal advice that was intended to be confidential,” the court wrote.
The court noted that “the burden of proof rests with the party asserting privilege to demonstrate that the documents sought are, in fact, privileged. A claim of privilege is not established merely by asserting it.”
Privileged documents can still be disclosed
The appeal court also corrected the lower court’s assumption that privileged documents cannot be subject to disclosure orders against non-parties.
The court cited several cases showing “a document that is protected by privilege can be subject to disclosure pursuant to an application for non-party disclosure, if certain conditions are met.”
In some cases, courts can order disclosure of information within privileged documents when portions can be redacted and requested information extracted from the rest of the document.
Disclosure order requirements met
The court found B. met the three requirements for compelling disclosure from a non-party under court rules: the documents were in SaskTel’s possession or control, they were relevant to the case, and they might be required at trial.
The court was satisfied that evidence from the cyber security investigator, combined with a previous court order involving SaskTel in similar litigation, was “relevant to the identity of at least one” of the anonymous defendants.
Strict confidentiality conditions
The Court of Appeal ordered SaskTel to immediately produce identifying documents including account holder names, addresses, billing information and email addresses associated with specific IP addresses and internet access times.
However, the court imposed strict confidentiality requirements. Any documents B. receives “are subject to the implied undertaking rule and shall be held by him and his solicitors in the strictest confidence and shall be used by them only for this specific litigation in which they were obtained.”
The court ordered no costs against SaskTel, noting “the nature of this application and the fact that SaskTel is a non-party.”
Broader implications for workplaces
The decision clarifies important principles about solicitor-client privilege and disclosure obligations for companies facing court orders for customer information, particularly in cases involving workplace harassment allegations that move into the public sphere.
The ruling demonstrates that companies cannot simply claim privilege by storing documents in legal department files without proving the communications actually meet privilege requirements.
For more information, see Boldt v Saskatchewan Telecommunications, 2025 SKCA 54 (CanLII).
