Alberta Judgment A Strong Reminder To Exercise Caution When Claiming Litigation Privilege Protection

The Alberta Court of Queen's Bench recently released its decision in TransAlta Corporation v. Market Surveillance Administrator (TransAlta v. MSA), ordering TransAlta Corporation (TransAlta) to produce hundreds of documents over which it claimed litigation privilege to the Market Surveillance Administrator (MSA). Although the decision is under appeal to the Alberta Court of Appeal, the court's finding that the use of litigation privilege had been done capriciously in some cases, along with the large number of records ordered to be produced, acts as a strong reminder that prudence should be used from the outset of a dispute to ensure litigation privilege will protect the disclosure of records created for the dominant purpose of litigation.