With the increasing use of email during the recruitment process, it is possible that certain terms of an employment relationship will be first discussed, if not finalized, over email before they are ever (ideally!) put into an employment contract. So, can the items discussed over email constitute terms of employment if they do not make it into an employment contract?

This was the key question in a recent Ontario case.

The facts are brief: the plaintiff was appointed to a position that was understood by the company to be for a temporary period. Three months into the appointment, another individual was appointed to the position on a permanent basis and the plaintiff’s appointment was terminated. The plaintiff sued for, among other things, wrongful dismissal. During the trial, the plaintiff sought to present email evidence setting out pre-contract discussions leading up to the appointment in order to suggest that the contract between him and the company was for a fixed three-year term.  Specifically, he sought to enter into evidence emails in which he committed to a three-year engagement with the company. The company called into question the authenticity of the emails, and their witness, from whom the emails were purportedly sent, denied ever sending the emails to the plaintiff.

Faced with a “he said/she said” situation, the Court’s conclusions were based on credibility. The Court found the plaintiff’s late disclosure of these emails troubling and, coupled with the company’s evidence challenging inconsistencies and errors in the emails, held that the emails were inaccurate. Without the email evidence, the Court concluded that there was no discussion regarding a fixed-term for the contract and thus none existed.

The Court went on to assess the nature of the plaintiff’s services, which it found were contemplated and discussed to be of a temporary nature. The Court went further and held that, based on the fact that the plaintiff invoiced the company for his services, the relationship was that of an independent contractor, disentitling the plaintiff to any reasonable notice of termination.

Had the emails in this case been found to be accurate, they could have been read in as terms of the contract and provided the plaintiff with damages of $262,800 representing the three-year term the plaintiff was claiming. The Court was clear that “correspondence exchanged between parties is admissible in evidence regarding the issue of formation of a contract” even where the correspondence is contrary to the employment terms set out in a subsequent contract.

While email correspondence can speed up the recruitment process, it can just as quickly be utilized as a written record against the interests of a company. For this reason, recruiters, human resources professionals and employers in general should exercise caution when relaying proposed terms of a contract to a potential employee online. It should not be assumed that discussions (verbal or via email) prior to the provision of a written employment or independent contractor agreement do not count in defining the relationship between the parties.

Parisa Nikfarjam