In Canadian Natural Resources Limited v. ShawCor Ltd., 2014 ABCA 289, the Alberta Court of Appeal has again revisited a party’s obligation to sufficiently describe privileged documents in its affidavit of records in civil litigation proceedings.
While perhaps evident to most civil litigators, the use of a colon following individual grounds of privilege included in Schedule 2 of the standard form of affidavit of records (Form 26) is deliberate, intended to introduce a list of specific documents meeting a particular ground of privilege as a result of which otherwise producible documents have not been disclosed. Grounds of privilege in the standard form include:
- without prejudice communications:
- communications and copies of communications between solicitor and client:
- solicitors work product, including all interoffice memoranda, correspondence, notes, memoranda and other records prepared by the solicitors or their assistants:
- records made or created for the dominant purpose of litigation, existing or anticipated:
- other: (provide particulars of objection relied upon)
- records that fall into 2 or more of the categories described above:
The colon is a punctuation mark used to explain or start an enumeration, to be contrasted with its cousin the semicolon which separates independent clauses in a sentence or items in a list. The grounds of privilege in Schedule 2 of the affidavit of records are not a list in and of themselves; rather, they are intended to introduce an enumerated list of producible but privileged records in the possession or control of a party to a civil action.
The common practice of treating grounds enumerated in Schedule 2 as a comprehensive list of otherwise unidentified documents – often with an all‑inclusive reference to counsel’s complete file – is no longer adequate, if it ever was. This practice fails to meet the requirements to disclose all relevant and material records in accordance with Rule 5.6 of the Alberta Rules of Court.
Privileged records must “provide sufficient description of a record claimed to be privileged to assist other parties in assessing the validity of that claim”.
Relevant and material documents are prima facie producible. So, yes, you do have to identify with some specificity any relevant and material but otherwise privileged records in possession of a party. Identifying information, including names or other specific information protected by the privilege need not be disclosed.
Interestingly, there will be very few instances where the entire contents of a solicitor’s file will be relevant and material as to be producible in any event. A record, question or information is relevant within the meaning of the Rules (R. 5.2) when it could reasonably be expected “to significantly help determine one or more of the issues raised in the pleadings, or to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleading”.
Most of the records or information included in the typical solicitor’s file will not meet this description. For example, as much as I would like my opinion of law provided to a client to determine the issues in the action, regretfully that opinion in fact has no bearing on a court’s determination of the issues as to be producible absent some material admission of a relevant fact in the document.
The same can be said for many of the items described in Schedule 2 of Form 26, including without prejudice communications, solicitor’s work product and the like. Again, unless facts relevant to the case are admitted in the document, settlement communications, inter-office memoranda or records prepared by legal assistants will rarely be relevant and material as to be producible.
More commonly, it is subparagraph (d) that will apply in most cases, requiring a party to identify records “made or created for the dominant purpose of litigation”, usually in the form of factual recitations from a client to her or his counsel or the fruits of expert investigation.
The Alberta Court of Appeal’s treatment of these issues in CNRL v. ShawCor Ltd. is not new law, but a reminder of a party’s obligations of disclosure and the fallacy of relying on precedents or standard forms in lieu of independently assessing the purpose and function of a legal document.