Laurentian must hand over most privileged documents, court rules

With the exception of documents sealed under a court order, Laurentian University will have to hand over privileged information to the Ontario legislature.

Ontario's Superior Court of Justice issued the ruling Jan. 26 on the court fight between the insolvent university and Auditor General Bonnie Lysyk.

"I have concluded that, save and except for issues relating to the sealing order and the confidentiality order, the factum of the Speaker provides a complete answer to the arguments put forth by LU," Chief Justice Geoffrey B. Morawetz said in his ruling.

In December, the province's Standing Committee on Public Accounts approved a Speaker's warrant demanding Laurentian University hand over all documents requested by Auditor General Bonnie Lysyk. Lysyk is conducting a value-for-money audit to find out why LU declared insolvency.

The documents include information under a sealed order as part of the Companies' Creditors Arrangement Act (CCAA), under which Laurentian University's declared insolvency on Feb. 1, 2021.

Laurentian has resisted efforts by Lysyk to access confidential documents. An earlier court ruling said she doesn't have the power to demand the documents under existing provincial legislation.

The committee issued the warrant demanding the documents in early December using Parliamentary privilege, which gives the legislature the right to demand access to any document or witness it chooses.

Morawetz ruled that the authority of the elected assemblies goes beyond passing legislation and holding the government to account.

"This view of the legislative branch’s constitutional role entirely eschews the assembly’s deliberative role, as the 'grand inquest of the [province],' which the Supreme Court of Canada recognized as the third function of the legislative branch," he wrote.

"The assembly’s deliberative role encompasses more than simply debating legislative proposals from the government."

Elected assemblies in the province have traditionally had "the power to send for persons, papers and things,” Morawetz wrote.

"Parliament has the ability to institute its own inquiries, to require the attendance of witnesses, and to order production of documents that are fundamental to its proper functioning," he said in his ruling.

"These rights are as old as Parliament itself."

Once elected officials are in possession of confidential documents, it is their responsibility to ensure they are properly protected.

"Should the committee or the assembly give insufficient protections to these or other sensitive documents in its possession, it is for the electorate, not the courts, to pass judgment on their conduct," Morawetz wrote.

The committee has already promised to keep the documents confidential, he noted. And he rejected outright the argument that Parliamentary privilege does not extend to confidential documents.

 "I agree with the Speaker that Parliamentary privilege extends to compelling production of information and documents that are subject to a class privilege from a non-governmental entity," Morawetz wrote.

"LU’s argument on this point does not raise a serious issue to be tried."

However, he said whether Parliamentary privilege extends to releasing documents sealed under a court order is a different matter.

"The question as to whether the legislative assembly can compel the production of such information or whether this goes beyond the scope of Parliamentary privilege is a serious issue that has not been addressed in any reported decision," Morawetz wrote.

"It is a fundamental question that affects the relationship between the three independent branches of government – the executive, the legislative and the judicial."

Morawetz wrote his job was to strike a balance between the two competing priorities. While accepting most of the Speaker's arguments, he ruled that there has not been a ruling on whether Parliament can access documents ordered sealed by a court.

"It is on this point that I find that I am unable to accept the position of the Speaker and the Attorney General," he wrote.

"I have not been provided with any authority that stands for the proposition that a pre-existing court order which restricts the disclosure of specified information can be overridden by a legislative assembly’s demand for production."

In this case, unsealing the documents would do significant harm to the parties involved in the CCAA process, Morawetz ruled.

"I have no hesitation in concluding that the disclosure of the information referenced in the sealing order and the mediation order is likely to result in irreparable harm to LU," he wrote in his decision.

"The consequences of disclosing the information that is restricted by the sealing order and the mediation orders are significant. The CCAA proceedings have been ongoing for a year and LU is in the process of developing its restructuring plan. Disclosure of the positions of affected parties at this stage, including that of LU, would be problematic."

But he said a hearing could be scheduled in February or March to hear arguments on that point.

"There will only be a relatively short delay in enforcement of the Speaker’s warrant pending determination of the scope of the privilege," he wrote.

"It is a serious issue which should be determined before it becomes a moot point."

Lysyk told CTV News Thursday afternoon that her office is still studying the decision to determine exactly what it means in terms of her accessing documents. 

And in a news release, the Laurentian University Faculty Association said welcomes the decision, but "is disappointed about the exceptions currently granted to Laurentian regarding the mediation documents sealed under a court order."

“We believe that it is in the public interest and indeed of the entire Laurentian community that Laurentian University be transparent and accountable,” Fabrice Colin, president of LUFA, said in the release.

“We urge the administration to stop fighting against transparency.”

Laurentian University issued this statement Friday morning on the court decision:

"Laurentian University appreciates the clarity provided by the court’s decision on the preliminary issue of the stay of the Speaker’s warrants. The matters for which the stay was granted will be heard by the court on a date to be scheduled. With respect to those portions for which the stay does not apply, as Laurentian University has previously confirmed, it accepts the court’s guidance and will comply with all of its legal obligations, subject to any further direction of the court.

"The university will continue to cooperate with the Standing Committee’s request.

"Laurentian University is on a difficult and necessary journey of transformational change. As we continue the hard work of restructuring, we are working through a complex process involving many stakeholders with the assistance of a court-appointed monitor and under the direct supervision of the court. Especially in light of the province’s support, we remain confident that Laurentian will emerge as a fully restructured, financially viable, and renewed Laurentian University for the long-term."

And on Thursday, Laurentian was granted an extension to complete CCAA proceedings to May 31, The previous deadline was Jan. 31.

Read the full decisionon on privileged documents here.