Keywords: Affidavits of Documents/Records
Preface: When I (Eugene) was a younger laywer (Parlee Irving Henning Mustard and Rodney, as it then was, Edmonton; then Honeywell Wotherspoon as it also was, Ottawa) I did, to speak plainly, a crapola worth of Affidavits of Documents—came a time that’s what I thought all litigators did. Did hundreds of Affidavits of Documents for any trial I juniored on, though did tons of motions in Masters/Judges Chambers (because of who I articled to in Edmonton—Madam Justice Marguerite Trussler, now Chair of the Alberta Gaming and Liquor Commission).
It was always a tough call figuring out, again to speak plainly, what goes in what pile, what gets disclosed/revealed, what gets buried, what gets tangentially referenced so the other side may not notice, but tangentially enough so that if we get pointed at later (by the other side/a judge) we’re able to say “we told you, you guys should learn to read”. And all the while knowing that if any motion was brought, it would be me on my side, or the other poor junior sucker on the other side that’d be wearing it—I remember trials I’d have more eye contact with the no. 2 guy (was usually a guy then) on the other side than with even my own (then) wife—each of us wondering how the chess/poker/hide-and-seek game we’d been playing a year ago would play out.
Anyways, here’s a recent “By the Court” Court of Appeal (Alberta—but certainly quotable/applicable elsewhere) that makes the job of us then juniors way more bearable—much better guidance as to putting together Affidavits of Documents (called Affidavits of Records in some jurisdictions)—what’s in, what’s out, what’s only referenced but excluded.
Summary: Here’s the skinny:
CNRL (Canadian Natural Resources Ltd.) sues ShawCor Ltd. et al re a pipeline designed/constructed/installed by ShawCor Ltd. et al, asserted to be replaced after a blowout.
CNLR discloses investigation and testing records before it calls in legal counsel, and (naturally enough) nothing thereafter—either/both of solicitor-client and litigation privilege (not the same, of course)
ShawCor Ltd.: CNRL made an improper “blanket” claim of privilege; they’d waived privilege anyways by referring to records in their Statement of Claim (paras. 1-3).
Case management judge: dismissed ShawCor’s application (para. 4).
C.A.: appeal allowed, case management judge set aside, CNRL to do a new or supplementary affidavit “in compliance with the Rules and this judgment” (para. 4).
The court gives a series of helpful quotes/principles before moving on to a helpful summary, then a fun conclusion.
Helpful quotes/principles (for cases you’re currently working on—either to quote to the other side during a discovery, or include in your material for a motion):
“The Rules reflect the cultural shift identified in Hryniak v Mauldin, 2014 SCC 7 … to create an environment promoting timely and affordable access to the civil justice system.”
“Tension has always existed between discovery and privilege in the civil justice system… Discovery should not be used to undermine legitimate spheres of privilege. At the same time, privilege should not be used to turn litigation into a game of hide and seek – with the seeker blindfolded.”
“Reforms to the civil justice system have enhanced the role of case management judges as gatekeepers in the litigation process. But this more active judicial role was not designed to lighten the burden on the parties or the responsibilities of their counsel. Thus, the Rules should be interpreted in a manner that maximizes the ability of opposing counsel or parties to resolve disputes over privilege and minimizes the time and expense involved in further litigation steps or judicial intervention. Simply put, resort to the courts on privilege issues should not be the first stop on the litigation highway.”
“… 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 to assist other parties in assessing the validity of the claimed privilege.” (paras. 5-8)
“Without limiting what we have said, we summarize for convenience the requirements of the Rules discussed above relating to affidavits of records and privilege claims. We stress that this is not intended to be an exhaustive list of those requirements:
1. Every relevant and material record is prima facie producible and the minimum requirements and rights under Rule 5.7(1) and (2) apply to all such records, even where a party objects to production based on claimed privilege or some other legal ground.
2. Every relevant and material record must be numbered in a convenient order and briefly described. These should be set out in the separate Schedules applicable to each as contemplated in Form 26. Accordingly, a party claiming privilege over a number of records must number and briefly describe each record short of revealing information that is privileged. The description of those records should be set out in Schedule 2 of Form 26 in the separate categories contemplated therein.
3. A party is permitted to bundle and treat as a single record a group of records that are all of the same nature so long as the bundle is, in accordance with Rule 5.7(2)(b), described in sufficient detail to enable another party to understand what it contains. This bundling option also applies to records over which a party claims privilege.
4. If a party objects to the disclosure of otherwise relevant and material records, it shall, in addition to numbering the records in a convenient order and briefly describing them, set forth the grounds for objection in respect of each record to assist other parties in assessing the validity of the claimed privilege. In doing so, the party is required to (i) state the actual privilege being relied upon with respect to that record; and (ii) describe the record in a way that, without revealing privileged information, indicates how the record fits within the claimed privilege. These requirements also apply to a bundled record over which a party claims privilege.” (para. 92)
Fun conclusion—because it’s a ‘good-for-the-goose good-for-the-gander’ sign-off (it’s the last para. of a 93 para. judgment):
“We were advised in the course of this appeal that ShawCor filed an affidavit of records that took the same approach to disclosure of privileged documents as did CNRL. Disclosure is a two-way street. If CNRL is dissatisfied with the affidavit of records filed by ShawCor to date, it is also at liberty to pursue such steps as it considers necessary.” (para 93)
Counsel for Appellant: Colin Feasby and Melissa Burkett (Osler, Hoskin & Harcourt LLP, Calgary)
Counsel for Respondent: Jeff Sharpe and Robert Martz (Burnet, Duckworth & Palmer LLP, Calgary)
For IMV Projects Inc.: Munaf Mohamed (Bennett Jones LLP, Calgary) (noted as “not party to the appeal”)
For Flint Field Services Ltd.: Bill Kenny, Q.C. (Miller Thomson LLP, Edmonton) (noted as “not party to the appeal”)