Laurentian fires back at auditor general, says her demands violate Canadian constitution
Laurentian University has fired the latest shot in its ongoing court battle with Ontario's auditor general.
The sides are involved in a dispute centred on whether LU has an obligation to give the auditor general documents covered by solicitor-client privilege. A hearing is expected to be held in the first two weeks of December.
Auditor General Bonnie Lysyk is conducting a value-for-money audit of Laurentian's books following the university's declaration of insolvency in February. Lysyk argues Section 10 of Ontario's Auditor General Act gives her the right to access to confidential information. Lawyers for LU argue they have the option, but not obligation, to hand over the documents.
In her court filing, Lysyk accused the university of creating a "culture of fear" among staff at the university when it comes to speaking with her staff. And she argued language in the act referring to confidential documents clearly means she has a right to the information.
In response, lawyers for Laurentian took issue with the "culture of fear" comment, saying it rejects the allegation "in the strongest possible terms."
"The auditor general’s allegation was incorrect," Laurentian said in its factum to the Superior Court of Justice.
"The university has provided access to all staff for interviews with the auditor general. The allegation that it has created a 'culture of fear' … appears to be based purely on the university’s direction to its staff that they not disclose privileged information. That direction was entirely appropriate."
Lawyers for Laurentian reject the idea that Lysyk needs access to all privileged information to conduct her audit. They point out that after initially pursuing the information last summer, she then told the university she had changed her mind.
"On Aug. 15, 2021, she formally decided 'not to legally pursue the production of privileged documents,' stating that she would 'conduct her audit using information and documents that she voluntarily receives from Laurentian University,'" the court transcript said.
And they said there is a previous case where she was denied access to privileged documents. When auditing the Attorney General's office in 2019, Lysyk was denied access to files about criminal prosecutions.
"She did not insist on access, and instead used her 'discretion' to deal with the situation with 'a scope limitation,'" the transcript said.
Further, lawyers for Laurentian argued that to force organizations to surrender privileged documents is a major step, and if that was what the province intended, it would have said so explicitly in the legislation.
Instead, they argued the act gives organizations the option to voluntarily surrender those documents, as some provincial organizations have done.
Supreme Court of Canada decisions
To support their arguments, Laurentian points to Supreme Court of Canada decisions that characterize solicitor-client confidentiality as a pillar of the justice system.
"It is indisputable that solicitor-client privilege is fundamental to the proper functioning of our legal system and a cornerstone of access to justice,” one SCC ruling said.
"As a substantive rule, solicitor-client privilege must remain as close to absolute as possible and should not be interfered with unless absolutely necessary,” said another.
In order for it to be lifted, the SCC ruled that language in the legislation "must be explicit and evidence a clear and unambiguous legislative intent to do so."
Language in Section 10 of the Auditor General Act says that if an organization hands over privileged documents, it doesn't constitute a waiver of privilege. Lysyk argues that section means she has the right to that information.
But Laurentian argues there are three pieces of legislation in Ontario in which privileged documents must be handed over; in each case, LU argues the language is explicit.
If that was the intention with the Auditor General Act, the language would be explicit, as well.
"Such language could have been introduced in (Section) 10 of the Auditor General Act, if the Legislature’s intention had truly been to abrogate privilege," the transcript said.
"The auditor general will still have access to all an audit subject’s non-privileged information, including all financial information. This will provide abundant information by which to judge whether public money was properly spent. She will also have access to any privileged information that an audit subject voluntarily provides."
'Flagrant violation'
And Laurentian argues if the act did compel them to surrender privileged documents, it would amount to a "flagrant violation of the Charter of Rights."
Laurentian -- and everyone else -- communicates with lawyers with an expectation of privacy, LU argued. There must be a compelling reason and explicit language in legislation for that right to be removed, something that is not present in this case.
"That expectation of privacy is not diminished by the regulatory context of (Section) 10," the transcript said.
"The reasonable expectation of privacy in information protected by privilege is always high, even though the infringement of privilege arises in a civil, administrative, or regulatory context."
Finally, Laurentian argued the Supreme Court of Canada has ruled that legislation "that interferes with professional secrecy more than is absolutely necessary will be labelled unreasonable."
In this case, Lysyk has demanded confidential information because she has a right to all documents "to inform her work," not because she has proven it is "absolutely necessary."
"In sum, if the auditor general’s interpretation of (Section) 10 is correct, the provision suffers from serious constitutional defects," the transcript said.
"Since the Legislature is presumed to enact constitutional legislation, courts should prefer an interpretation of Section 10 that does not result in a constitutional infringement. This is another reason to prefer the interpretation of (Section) 10 that does not compel the disclosure of privileged information."
Read the entire court filing here.
CTVNews.ca Top Stories
Most of Canada to receive emergency alert test today
The federal government will test its capacity to issue emergency alerts today, with the exception of Ontario, where the test will take place on May 15.
OPINION What King Charles' schedule being too 'full' to accommodate son suggests about relationship with Prince Harry
Prince Harry, the Duke of Sussex, has made headlines with his recent arrival in the U.K., this time to celebrate all things Invictus. But upon the prince landing in the U.K., we have already had confirmation that King Charles III won't have time to see his youngest son during his brief visit.
Ontario man devastated to learn $150,000 line of credit isn't insured after wife dies
An Ontario man found out that a line of credit he thought was insured actually isn't after his wife of 50 years died.
Boy Scouts of America is rebranding. Here's why they're now named Scouting America
After more than a century, Boy Scouts of America is rebranding as Scouting America, another major shakeup for an organization that once proudly resisted change.
New Canadian study could be a lifesaver for thousands suffering from CTE
A first-of-its-kind Canadian research study is working towards a major medical breakthrough for a brain disorder, believed to be caused by repeated head injuries, that can only be detected after death.
Rape, terror and death at sea: How a boat carrying Rohingya children, women and men capsized
In March, Indonesian officials and local fishermen rescued 75 people from the overturned hull of a boat off the coast of Indonesia. Until now, little was known about why the boat capsized.
Stormy Daniels describes meeting Trump during occasionally graphic testimony in hush money trial
With Donald Trump sitting just feet away, Stormy Daniels testified Tuesday at the former president's hush money trial about a sexual encounter the porn actor says they had in 2006 that resulted in her being paid to keep silent during the presidential race 10 years later.
These adults born in the '90s partnered with their parents to buy homes in Ontario
An Ontario woman said it would have been impossible to buy a house without her mother – an anecdote that animates the fact that over 17 per cent of Canadian homeowners born in the ‘90s own their property with their parents, according to a new report.
For their protection, immigrants critical of China and India call for speedy passage of Canada's foreign interference legislation
Canadian immigrants threatened by hostile regimes are urging parliamentarians to quickly pass the 'Countering Foreign Interference Act' so they can feel safe living in their adopted home.