Laurentian wins court fight over confidential documents

A panel of judges has dismissed an appeal launched by Ontario’s auditor general of a 2022 decision in which a judge sided with Laurentian University’s position that it did not have to provide privileged documents to the AG’s office.

Ontario Auditor General Bonnie Lysyk was tasked in 2021 with a value-for-money audit of the insolvent Laurentian University’s finances by the legislature’s Standing Committee on Public Accounts. 

That report was released in November, and said Laurentian did not have to file for creditor protection under the Companies’ Creditors Arrangement Act in response to its financial troubles.

During the course of Lysyk’s audit, Laurentian refused to provide privileged (confidential) information to the audit team, saying they did not have to do so under provincial legislation.

Due to this dispute, Lysyk asked the courts for an interpretation of what is allowed for under the Auditor General Act. In January 2022, a judge ruled that the act does not give AG the right to see privileged documents.

Chief Justice Geoffrey Morawetz said the Auditor General Act does not “demonstrate a clear and unambiguous intent to abrogate solicitor-client privilege.”

However, Laurentian did end up later having to hand over most of the requested documents after the legislature issued a rare Speaker’s Warrant.

Lysyk appealed the court’s interpretation of the Auditor General’s Act, and the case went before the Ontario Court of Appeal in November.

The case was heard by a panel of judges: Justice Michael Tulloch, Justice Julie Thorburn and Justice Jonathan George. Following submissions by counsel for the Auditor General’s office and for Laurentian University, the panel reserved its decision on the matter.

The appeal court judges’ decision was released on May 1. 

At issue in the case are a couple of sections of the Auditor General Act, most notably Section 10, which deals with the “duty to furnish information” to the auditor general, and how that information must be treated.

“The Auditor General raises several grounds of appeal, all of which can be distilled into the following overarching question: does s. 10 of the Act allow the Auditor General to abrogate privilege?” said the appeal judges’ decision.

“In my view, the application judge did not err in finding that the Act fails to evince the clear, explicit, and unequivocal legislative intention necessary to abrogate privilege. Accordingly, I would dismiss the appeal.”

At the appeal hearing last November, Richard Dearden, counsel for Ontario’s AG, argued that Chief Justice Morawetz had “erred in law” in his ruling.

“When Section 10 of the Auditor General Act is read in its entirety and in the context of the Act as a whole, it is clear that the Legislature provided the Auditor General with access to an auditee’s privileged documents,” said a factum provided by the AG’s office.

Laurentian argued Chief Justice Morawetz was correct in his assessment of the Auditor General Act. 

University counsel Fredrick Schumann said the question that needs to be grappled with is whether the “abrogation of privilege of the entire government and the broader public sector” is what the Ontario legislature intended.

“I mean, really, in a way, for Mr. Dearden’s argument to succeed, you should be able to stand up, read Section 10 (of the Auditor General Act) and sit down,” Schumann said. “That's how obvious it should be, in my submission.”

In a May 1 press release, the auditor general expressed disappointment in the turn of events following the Ontario Court of Appeal ruling.

“I am disappointed that the long-standing wording in the Auditor General Act is no longer considered sufficient to allow us to access all information we require to do our work,” said Lysyk.

“An updated Auditor General Act with clear, unambiguous language would once again provide the Office with this necessary access to continue to effectively do its work for the Legislative Assembly and the people of Ontario.”

Lysyk referenced a bill introduced in 2022 by local MPPs Jamie West (Sudbury) and France Gélinas (Nickel Belt) to eliminate any future challenges to the role or powers of Ontario’s auditor general.

“Such language is present in the current Bill 19 – Auditor General Amendment Act, 2022, with wording derived from the January 12, 2022 ruling from Chief Justice Geoffrey B. Morawetz of the Ontario Superior Court of Justice,” she said.

“For decades, the Office has had access to all auditees’ information and records (including privileged information and records). This has been, and remains essential for my Office’s ability to work effectively on behalf of the Legislative Assembly and the people of Ontario to ensure accountability, transparency and valuefor-money in the management and use of public funds. 

“Auditor General Offices in Canada typically operate with this access. This is important so that the use of privilege cannot be a means for auditees to withhold information.”

“The passing of Bill 19 would convey to Ontarians the strong support of the Legislative Assembly of Ontario of the importance of accountability, transparency and value-for-money in our democratic system, and the continuing support of the independent Office of the Auditor General.”

West and Gélinas also put out a press release, saying it’s essential to pass their bill amending the Auditor General Act.

“This decision prevents the Auditor General and her office from conducting a comprehensive analysis and providing the oversight Ontarians rely on,” said West. 

“The Auditor General has always had access to these kinds of records, and there is a long-standing practice of protecting privacy while ensuring transparency and accountability. In every other province and territory, the Auditor General has access to privileged information. Ontario must meet the same standard."  

“Ford’s Conservatives have the power to close this loophole,” Gélinas said. “Their failure to do so raises further questions about their commitment to transparency. We ask the government to pass our bill immediately to ensure the Auditor General can do their job effectively – in this matter and as we investigate the questionable dealings of other government boards and agencies, including Metrolinx and Ontario Place.” 

Heidi Ulrichsen is Sudbury.com’s associate content editor. She also covers education and the arts scene.