• Court of Appeal Provides "Modern Approach" to Privileged Documents
  • January 30, 2015 | Author: Michael C. Barbero
  • Law Firm: McLennan Ross LLP - Calgary Office
  • 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:

    1. Being numbered in a convenient order;
    2. Providing a brief description of the document, without disclosing the privileged information; and
    3. Identifying the grounds of privilege relied upon.

    Facts
    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 application.

    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 Modern Approach:

    1. 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 producing.
    2. 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.
    3. 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.
    4. 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 evolving law.

    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 with by:

    • 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.

    Conclusion
    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 the Courts.