On September 15, 2014, the Alberta Court of Appeal released its decision in Canadian Natural Resources Limited v. ShawCor Ltd. (CNRL), a case that will change how litigants are required to describe records over which they claim privilege in their affidavits of records. In CNRL, the Alberta Court of Appeal held that litigants must provide descriptions of their otherwise privileged records "to assist other parties in assessing the validity of the claimed privilege" (paragraph 8).
CASE LAW PRE-CNRL
Before CNRL, the leading case on how litigants must describe privileged records was Dorchak v. Krupka. In Dorchak, Justice J.E.L. Côté explained that litigants need only "list and describe privileged documents merely as numbered bundles" and identify the types of privilege claimed in respect of each bundle (paragraphs 59 and 67). Justice Côté explicitly rejected the suggestion that litigants must provide detailed descriptions of their privileged records sufficient to permit other parties to determine whether privilege has been properly claimed over a given record. Justice Côté reasoned that, in certain cases, even a brief description of a record could reveal privileged information. Justice Côté gave the following example:
Consider this hypothetical individual description of a
privileged document in a motor vehicle torts suit:
"Memorandum dated July 7, 1997 from the defendant to E. Marshall Hall"
Very likely everyone in town knows that E. Marshall Hall practises solely as a criminal defence lawyer. Clearly that defendant retained a criminal defence lawyer on or before July 7. So by that date the defendant thought that he might be charged with a criminal offence. If the police were not alerted until some later date, then the defendant had a knowledge of possible prosecution by July 7. That may be the only significant secret in the whole lawsuit, and the document description has effectively revealed it. (paragraph 38)
The Court of Queen's Bench of Alberta continued to follow Dorchak after the Alberta Rules of Court were revised in 2010, reasoning that there had been no significant change to the applicable Rule (formerly Rule 187.1(2), now Rule 5.8) (see Attila Dogan Construction v. AMEC Americas Limited).
In CNRL, the Alberta Court of Appeal had its first opportunity to consider whether Dorchak should continue to apply after the amendments to the Rules of Court.
Queen's Bench Decision
Three of the defendants applied to Chief Justice N.C. Wittmann for an order directing CNRL to provide a further and better affidavit of records. The defendants asserted, among other things, that CNRL had failed to properly describe its privileged records in its Affidavit of Records. CNRL had described its privileged records as follows in Schedule 2 of its Affidavit of Records:
Relevant and material records under the Plaintiff's control
for which there is an objection to produce:
(a) without prejudice communications;
(b) communications and copies of communications between solicitor and client;
(c) solicitor's work product, including all interoffice memoranda, correspondence, notes, memoranda and other records prepared by the solicitor or their assistants;
(d) records made or created for the dominant purpose of litigation, existing or anticipated;
(e) other: NIL
(f) records that fall into 2 or more of the categories described above.
Chief Justice Wittmann relied on Dorchak to dismiss the defendants' application.
Court of Appeal Decision
The defendants appealed, arguing that the new Rules of Court require litigants to provide a more fulsome description of privileged records in their Affidavit of Records. The Court of Appeal agreed, although with an important caveat. In so deciding, the Court of Appeal held that in the Rules of Court, the phrase "producible records" includes privileged records. As such, Rule 5.7 provides the requirements for describing both privileged and non-privileged records as follows:
5.7(1) Each producible record in an affidavit of records
(a) be numbered in a convenient order, and
(b) be briefly described.
(2) A group of records may be bundled and treated as a single
(a) the records are all of the same nature, and
(b) the bundle is described in sufficient detail to enable another party to understand what it contains.
Accordingly, Rule 5.8, which states that privileged records "must be numbered in a convenient order, and the affidavit must identify the grounds for the objection in respect of each record," merely provides additional guidance for describing privileged records. Further, the Court of Appeal held that the requirement in Rule 5.8 to "identify the grounds for the objection in respect of each record" means that litigants must "provide a sufficient description about that record to assist other parties in assessing the validity of the claimed privilege."
The Court of Appeal acknowledged the concern voiced in Dorchak about the potential for privilege to be "frittered away" in the description of records: ". . . the obligation to provide sufficient information to indicate how a record fits within the claimed privilege does not require a degree of particularity that would itself defeat the privilege. No doubt best practices by counsel for parties will develop over time to accommodate to the new realities."
The Court of Appeal held that CNRL had failed to describe its privileged documents adequately and directed CNRL to produce a further and better affidavit of records.
The Court of Appeal took care to note that privileged records may be bundled into groups of documents, just as non-privileged records may be bundled. As such, litigants may produce like or similar records covered by a particular type of privilege in a single bundle. But bundling may not relieve litigants of the obligation to provide other information about each privileged record "to assist other parties in assessing the validity of the claimed privilege." Subsequent case law will undoubtedly provide more detailed guidance on how privileged documents must be bundled and described to comply with the "new realities" for drafting affidavits of records.
ShawCor is one of several defendants in the underlying litigation.
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