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.  


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

2. Ibid at para 64.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.