Auditor General of Ontario takes on Laurentian University in court of appeal | Crisis at Laurentian University
Ontario Auditor General Bonnie Lysyk has long faced resistance from Laurentian University during her investigation into the post-secondary institution's financial crisis.
The Auditor General General of Ontario have the right to demand privileged documents from an entity it is investigating? In court on Tuesday, Bonnie Lysyk's lawyer argues that the Auditor General Act gives him the authority to do so, even though the Chief Justice of the Superior Court of Justice ruled otherwise last January .
The case dates back to the investigation by Ms. Lysyk, in April 2021, into the finances of Laurentian University, which had taken shelter from its creditors two months earlier.
Wanting to have access to documents subject to professional secrecy, including correspondence between Laurentian University, Bonnie Lysyk had encountered resistance from the post-secondary institution.
She then turned to the courts but was dismissed last January.
In his decision, Chief Justice of the Superior Court of Justice, Geoffrey Morawetz, has ruled that the Auditor General Act does not require the entities under audit to provide the Auditor General with documents subject to solicitor-client privilege, litigation privilege or negotiation privilege. view of a settlement.
The Auditor General of Ontario, Bonnie Lysyk, investigates Laurentian University's financial crisis.
The Auditor General immediately signaled her intention to appeal the decision. His lawyer Richard Dearden finally pleaded Tuesday morning before Justices Michael Tulloch, Julie Thorburn and Jonathon George of the Ontario Court of Appeal.
He believes that Justice Morawetz has erred in his interpretation of section 10 of the Auditor General Act, which indicates in its section 2 that the holder of this title has the right to have free access to the documents he considers necessary to perform his duties .
Section 3 of the said section, which resulted from an amendment to the Act in 2003, indicates that a disclosure made to the Auditor General […] does not constitute a waiver of privilege.
This is a guarantee that demonstrates the clear, explicit and unambiguous intention of the legislator to abrogate the privilege of an entity under audit, pleaded Me Dearden.
In her preliminary report on the crisis at Laurentian University, the Auditor General of Ontario, Bonnie Lysyk, concluded that the institution had “planned strategically” to protect itself from its creditors.
In addition, he pointed out, another amendment was made to the Act in 2003 to guarantee the confidentiality of personal information obtained by the Auditor General in the course of his investigations.
In other words, according to Mr. Dearden, by adopting the amendments, the members of the day wanted to ensure that the entities investigated by the Auditor General could not invoke the privilege of refusing to hand over documents to him, while putting in place restrictions preventing the Auditor General from disclosing the information contained in these documents.
However, in his January decision, the Chief Justice of the Superior Court rather interpreted the amendment to section 10 as guaranteeing the protection of privileged information that could be contained in documents transmitted to the Auditor General, sometimes by inadvertently.
It is this latter interpretation that Laurentian University lawyer Fredrick Schumann defended in court on Tuesday.
What Mr. Dearden is asking us to do is infer that the legislature intended to transform sections of the law that do not abrogate the privilege into sections that abrogate the privilege, he pointed out.
“Section 10, in its vocabulary, does not suggest that the privilege be revoked. It certainly does not do so clearly, expressly and unequivocally.
— Laurentian University Lawyer Fredrick Schumann
The Auditor General of Ontario Act nowhere specifically states that the title holder has the right to demand documents from an entity they are investigating even when they are privileged.
In Nova Scotia, for example, the equivalent legislation clearly states that the Auditor General has the right to require them despite the Freedom of Information and Protection of Privacy Act or any other law, and despite all other rights of privacy, confidentiality and privilege, including solicitor-client privilege, litigation privilege or negotiation privilege.
Gilles LeVasseur is a professor of law and management at the University of Ottawa.
According to University of Ottawa law and management professor Gilles LeVasseur, the Superior Court judge, in his decision, reaffirmed that since it is not clearly stated, one cannot force [ …] instances that have a privilege to waive this privilege.
You can waive the privilege but you cannot force to waive [the privilege], explains- he.
But the judges of the Court of Appeal will have to consider a very specific issue, he adds.
“Yes the privilege exists, yes it is defined in such a way, but in certain circumstances, when it is for the interest and the necessity of society, it should not be surprising if the Court of Appeal says that in this case, you have to be able to waive that privilege by the authority expressed by the auditor. »
— Gilles LeVasseur, Professor of Law and Management at the University of Ottawa
The Auditor General finally obtained the vast majority of the documents she requested from Laurentian University.
His final investigation report should be published shortly.
But Tuesday's appeal has an importance that goes far beyond Laurentian, said Nickel Belt MP France Gélinas, who fears that the case of the x27;Laurentian University does not become a precedent, especially if Ms. Lysyk does not win her case.
France Gélinas NDP MLA for Nickel Belt
This is super important because we know that there are already other government payment transfer organizations looking at what Laurentian has done with the intention of x27;use the same process as Laurentian to block the access of the Auditor General and that, usually, these are organizations that have either done something dishonest or really have serious problems that they do not do not want to share, explains the MP.
“The Auditor General is there to make sure taxpayers' money is well spent. [If Ms. Lysyk is unsuccessful again], other organizations will use that precedent and say "we don't want you to look at certain documents. Whether these documents are really shared by the court, we will never know because the Auditor General will not be able to see them.
—France Gélinas, MP for Nickel Belt
The three judges who heard the appeal did not specify when exactly they will issue their decision.