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...