Canada: Alberta Court Of Appeal Clarifies Role Of Privilege In Affidavit Of Records

In Canadian Natural Resources Limited v ShawCor Ltd., the Alberta Court of Appeal analyzed the role privilege plays in an Affidavit of Records. The initial claim arose when the plaintiff, Canadian Natural Resources Limited ("CNRL"), sued ShawCor Ltd. ("ShawCor") for damages arising from the alleged improper construction of a 32-kilometre pipeline transporting bitumen for CNRL. The pipeline was designed, constructed and installed by ShawCor, and CNRL was required to replace it following a well blowout.

In the process of the litigation, ShawCor applied to the Court for an order that CNRL produce a more detailed Affidavit of Records, arguing that CNRL had not disclosed all of the records they possessed. Specifically, ShawCor argued CNRL refused to provide records in regards to the testing and investigation of the pipeline after February 4, 2009, soon after the well blowout, and the date that CNRL brought in their legal counsel and identified that they were preparing for litigation.

In response to the ShawCor application, CNRL argued that the records surrounding CNRL's investigation and testing of the pipeline created after February 4, 2009 were created to prepare for litigation and were therefore subject to either or both solicitor-client and litigation privilege. In total, there were 1,058 documents over which CNRL claimed privilege and refused to disclose.

The parties essentially argued over whether or not the Affidavit of Records needed to number and describe the records over which privilege was claimed, in addition to stating which particular privilege is being claimed for each document. Ultimately, the Alberta Court of Appeal agreed with ShawCor thereby allowing the appeal, and ordering that CNRL prepare a new Affidavit of Records. The overarching reasoning behind this decision stemmed from an evaluation of the Alberta Rules of Court Rules 5.6, 5.7 and 5.8, which taken together:  

[i]mposes on a party the obligation to number and briefly describe each record that is relevant and material, including those it claims are privileged. For records that a party claims are privileged, the party must, in accordance with Rule 5.8, identify the particular grounds of the objection to production for each record in order to assist other parties in assessing the validity of the claimed privilege. That means the party must state the actual privilege being relied upon with respect to that record and describe the record in a way that, without revealing information that is privileged, indicates how the record fits within the claimed privilege. These requirements apply equally to a bundled record over which a party claims privilege.¹

The Court further emphasized that because all relevant and material records are prima facie producible, even if a party objects to producing the documents, they must nevertheless be numbered and briefly described. Furthermore, relevant and material records of the same nature are eligible to be bundled together and treated as a single record; this would require that the description provided for the kind or privilege claimed would apply to the bundle as a whole, and would need to be clear enough so that another party would understand what the bundle contains and the validity of the claimed privilege. Lastly, the Court clarified that when describing how the document fits within the privilege claimed, the information does not need to be so specific as to defeat the privilege.

These directions help ensure that parties need not apply to the Court to assess the validity of their privilege claims, as the Court acknowledged that errors in claiming privilege occur and parties can have differing views on what substantiates privilege:

It is preferable that the Rules be interpreted in a way that minimizes the need to pursue these other various options, all of which come at additional cost and time to the litigants. Full and fair discovery of records also militates in favour of earlier dispute resolution and enhances the likelihood that opposing parties will make only appropriate challenges.... in this day of increasingly scarce judicial resources, judges should not be bogged down regularly by the need to examine volumes of records to assess privilege.²

In application, the Court found that CNRL had not described the documents in a way where ShawCor could assess the validity of the various privilege claims. The blanket claim of privilege over an undisclosed number of documents was not in line with the Rules, and therefore CNRL was required to provide ShawCor with a new Affidavit of Records which complied with the aforementioned Rules.

The Take-Home Message

When providing an Affidavit of Records to the opposing party, the following conditions are required, even when privilege is being asserted over the document:

1. Each record must be numbered in a convenient order;

2. Each and every relevant and material record must be briefly described;

3. When privilege is being claimed over the document, it must still be described so that the other party knows what form of privilege is being claimed, and how the record fits within the claimed privilege. This allows the other party to assess the validity of that claim; and

4. Documents may be bundled when they are similar in nature, however the bundle must be described in a manner that the other party would understand what privilege is being claimed over the bundle, and how the bundle fits within that form of privilege.  

 Footnotes

1. Canadian Natural Resources Limited v ShawCor Ltd., 2014 ABCA 289 at para 36.

2. Ibid at para 64.

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