Court of Appeal Provides 'Modern Approach' to Privileged Documents

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. 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:

The Rules require it - Rule 5.6(1)(b) clearly states that an...