Emera and Nova Scotia Power must disclose seven emails to a former employee after the Supreme Court of Nova Scotia found they had not supplied the evidence needed to establish solicitor-client or litigation privilege.
In McKinnon v. Emera Incorporated, 2026 NSSC 311, released October 8, 2026, Chief Justice Deborah K. Smith allowed that part of Pamela McKinnon’s document-production motion but rejected her demands for six separate disclosure affidavits and a transcript the companies said did not exist. The ruling concerns the evidence available for the lawsuit, not whether her employment claims succeed.
McKinnon sued her former employers in May 2023. Her original claim against Emera included constructive dismissal and alleged bad faith in the handling of concerns she raised about wind development at Nova Scotia Power and what she viewed as attempts to demote her. Her claim against Nova Scotia Power concerned an unpaid long-service award. After a contested amendment process, her pleadings also included allegations of retaliation, discrimination, inducing breach of contract and civil conspiracy. The companies filed defences.
Privilege required supporting evidence
The companies claimed both solicitor-client privilege and litigation privilege over the same seven documents. Their disclosure affidavits contained general privilege assertions and indexes with limited information, including document dates and email participants.
The judge explained that solicitor-client privilege protects confidential communications between lawyer and client for the purpose of seeking or giving legal advice. It can protect advice from an in-house lawyer, but a lawyer’s involvement or job title does not automatically shield business communications. Litigation privilege is a different protection: the party claiming it must establish that litigation was reasonably contemplated when the document was created and that its dominant purpose was obtaining legal advice or conducting or assisting the litigation.
Here, the missing element was evidence about the circumstances in which the emails were created. Smith had no evidence that the lawyers involved were retained to give legal advice, that the emails contained legal advice, or that confidentiality was intended. Nor was there evidence establishing the necessary prospect of litigation and dominant purpose for litigation privilege. The affidavits responding to the motion were silent on those issues.
The companies’ lawyer offered to let the judge examine the documents privately. Smith declined: the evidence supporting privilege was wholly insufficient. She ordered disclosure of the seven emails without inspecting their contents. The decision therefore does not establish that every communication involving these lawyers, or every workplace-investigation record, is unprotected.
Broader disclosure demands refused
McKinnon also wanted six people directly involved in the dispute, including employees and outside investigators, to swear their own disclosure affidavits. She argued that comparing what each person disclosed would help address concerns about missing records and the existing affiants’ lack of first-hand knowledge.
The court shared some concerns about production. Emera’s list of documents claimed as privileged had fallen from 87 in one supplemental affidavit to seven in the next. Although McKinnon had expanded her allegations between those affidavits, Smith questioned how that change could turn privileged documents into non-privileged ones. Further documents also continued to emerge as the motion proceeded.
Nevertheless, the rules require a corporate disclosure affidavit from an officer or employee, not necessarily someone with first-hand knowledge of the underlying events. Requiring six separate affidavits would not reflect those rules or the proportionality needed for a just, speedy and inexpensive proceeding. McKinnon could question the companies’ representatives at discovery about records she believed were still missing.
The judge stressed both sides of the disclosure obligation: parties must search for and produce relevant, non-privileged material, including evidence that may hurt their case, but requests must be grounded in evidence and relevance. Mere allegations do not justify an unrestricted search through an opponent’s records.
No order to create a transcript
The remaining request concerned McKinnon’s recorded telephone conversation with an outside investigator. An investigation plan contemplated typed interview notes and a typed transcript of those notes for the interviewee’s sign-off. McKinnon sought any existing transcript of the call or, if none existed, a certified transcript prepared at the companies’ expense.
The companies said no transcript had been prepared. Smith was not satisfied that they had one and refused to require them to create it on this motion. Document production is a means of obtaining relevant records that exist, rather than compelling the creation of new ones.
The decision also flagged practical problems with document-production software: identification numbers changed between affidavits, software time-zone settings changed displayed times, and recipient lists were truncated. Steps had been required to align the affidavits and disclose the relevant information. Smith said software used for production must meet the needs of the parties and the court.
The order is limited to the seven emails argued on the motion. Nine additional documents identified later, over which the companies also claimed privilege, were expressly left out of the decision. The companies must address those in a further supplemental affidavit, and McKinnon may bring another motion challenging the new privilege claims.
Because success was mixed, no costs amount was fixed. The judge will hear from the parties if they cannot agree. The underlying employment allegations remain unresolved.
