Regulatory Proceedings And Litigation Privilege: ‘Zone Of Privacy’ Bolstered In Alberta

Litigation privilege applies to regulatory proceedings where the consequences of the proceedings are significant, and the privilege cannot be excluded by statute without express and clear language, the Alberta Court of Appeal recently held in TransAlta Corporation v Market Surveillance Administrator, 2014 ABCA 196 [TransAlta].

Litigation privilege regularly applies to protect materials created or assembled in the context of litigation. Its purpose is to create a "zone of privacy" in relation to pending or apprehended litigation: Blank v Canada (Minister of Justice) , 2006 SCC 39 [Blank] at para. 39. In TransAlta, the respondent Market Surveillance Administrator (MSA), Alberta's independent electrical watchdog, sought production of certain records from TransAlta in the context of an investigation into whether TransAlta had artificially influenced the price of electricity. TransAlta refused to produce certain of the records on the basis of litigation