In Canadian Natural Resources Limited v. ShawCor Ltd., 2014
ABCA 289, the Court of Appeal outlined a new approach to claims
of privilege over documents. The Court held that a party preparing
an affidavit of records must, short of revealing information that
is privileged, provide a sufficient description of each record for
which privilege is claimed. In sum, this decision suggests that
records over which privilege is asserted must now be individually
dealt with by:
Being numbered in a convenient order;
Providing a brief description of the document, without
disclosing the privileged information; and
Identifying the grounds of privilege relied upon.
Following a well blow out Canadian Natural Resources Ltd.,
("CNRL") had to replace a 32 km pipeline between two of
its facilities. CNRL sued ShawCor Ltd, ("ShawCor"), and
others for damages relating to the alleged improper design and
construction of the pipeline.
ShawCor argued CNRL failed to disclose all records in its
possession and applied for an order requiring CNRL to provide a
further and better affidavit of records. Specifically, ShawCor
contested CNRL's position that testing and investigation
records created after the well blow out were privileged from the
date CNRL contacted its legal counsel. CNRL claimed
solicitor-client and litigation privilege over the records. ShawCor
argued this "blanket" claim of privilege and
corresponding failure to describe the records in question was
"improper". Furthermore, ShawCor contended that any
privilege was waived by CNRL referring to the documents in its
Statement of Claim.
The Case Management Judge dismissed ShawCor's
The "Modern Approach" In overruling the Case Management Judge, the Court of
Appeal expressly acknowledged the recent Supreme Court of Canada
decision in Hryniak v. Mauldin, and the resulting "culture
shift" towards increasing access to justice through efficient
litigation processes. Through this lens the Court of Appeal
examined the issue at play in this case: the tension between
discovery and privilege.
The Court of Appeal resolved this tension in favour of
discovery, holding that all relevant and material documents must be
listed in the affidavit of records, including those for which
privilege is claimed. The Court termed this the "Modern
Approach". The Court offered four reasons in support of the
The Rules require it - Rule 5.6(1)(b) clearly states
that an affidavit of records shall "disclose all
records… relevant and material to the issue in the
action". This creates a prima facie produceabiltiy of
all documents including those records a party objects to
The context of the new rules demands it - Rule 5.6 was
created in response to concerns from the bar regarding the
production of documents and claims of privilege. The consensus from
the bar was in favour of greater disclosure.
Policy reasons support the Modern Approach - Early and
proper disclosure allows parties to consider and address claims of
privilege without having to resort to the courts. Where recourse to
the courts is needed, a proper listing of the records facilitates a
quicker review and decision.
The Modern Approach is consistent with the evolving law on
privilege - Other Canadian jurisdictions have faced similar
concerns from the bar regarding production and have responded in
ways that favour greater disclosure of information to support
claims of privilege. The Modern Approach is in line with this
Ultimately, the Court of Appeal found that CNRL's affidavit
of records did not comply with the rules or the Modern Approach and
ordered CNRL to prepare a supplemental affidavit in accordance with
the decision. This required, as outlined above, that CNRL's
records over which privilege was asserted be individually dealt
being numbered in a convenient order;
by including a brief description of the document, without
disclosing the privileged information; and
by identifying the grounds of privilege relied upon.
This decision is yet another which demonstrates to litigants and
the bar that the Courts view access to justice through improved
procedures in the litigation process as an important consideration.
Litigants, and counsel, should be mindful that actions taken
against this overarching direction are likely to attract the ire of
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