Under the rules that govern civil procedure in most provinces and territories of Canada, during the initial stages of the litigation process, the parties must produce an affidavit of documents, which is a list of all documents relevant to a given proceeding that are or have been in a party's possession, control or power. The listing is contained in an affidavit made under oath or solemnly affirmed. Following the exchange of the parties' affidavit of documents, the listed non-privileged documents are exchanged, and each party will have an opportunity to conduct oral examinations in respect of them.

While the parties are generally not required to turn over privileged documents to one another, they are required to list in a schedule to their affidavit of documents the documents that are relevant to the proceeding but which are not being produced because of their privileged status. All documents for which privilege is claimed must be listed separately, setting out the nature and date of the document and other particulars sufficient to identify it. The grounds for claiming privilege must also be set out for each document. The purpose of this degree of description of the privileged documents is to enable the other parties to the litigation to test, if necessary, the claim of privilege. If one party claims privilege over a document and another party wishes to dispute that claim, a motion can be brought to the court to decide whether a claim of privilege may have been improperly made, and the court may order any of the following:

• Cross-examination on the affidavit of documents
• Service of a further and better or more specific affidavit of documents
• Disclosure or production for inspection of the document, if it is not privileged
• Inspection of the document to determine the document's relevance or the validity of the claim of privilege

The purpose of claiming privilege is to prevent the document from being used at trial. However, there are two circumstances in which a party may be able to use a document for which privilege has been claimed:

• A party may, by written notice, abandon a claim for privilege by disclosing the document or producing it for inspection within 90 days before the start of the trial.
• If the claim for privilege is not abandoned, the document may be used only to impeach (dispute, deny or contradict) the testimony of a witness or with leave (permission) of the court.

In a motion for leave of the court to use a privileged document, the court must grant leave on whatever terms and conditions are appropriate, including an adjournment, unless permitting the document to be used at trial would cause prejudice or unduly delay the trial.

While the above sets out the general law in Canada on the use of privileged documents in civil proceedings, every province and territory has its own civil procedure legislation, each with its own particularities. For the specific requirements in each of Canada's provinces and territories, reference must be made to the governing legislation in the relevant jurisdiction.