Auditor general doesn’t have right to privileged documents, court rules

An Ontario Appeals Court has ruled that Ontario’s auditor general does not have the right to demand access to documents covered by solicitor-client privilege.

Auditor General Bonnie Lysyk went to court to obtain documents withheld as she did an audit of Laurentian University into why the university declared insolvency.

She was denied access to privileged documents and appealed the decision. Lysyk said Tuesday the decision is disappointing.

“We’ve never really had an access issue to the extent that we encountered with Laurentian,” she told CTV News.

“So I’m disappointed with the ruling says the wording isn’t clear enough because it has been something we’ve operated on for many years.”

However, Osgoode Hall Law School Prof. Trevor Farrow said the court was prioritizing the right to confer with a lawyer in confidence.

“I don’t think the court had concerns about the auditor’s goals, I don’t think the court had a concern about what the auditor was looking for in the abstract,” Farrow said.

“What I do think the court cared about was not pushing aside the protection of privilege, without that really clear, defined language.”

But Nickel Belt MPP France Gélinas said the legislation covering the auditor’s office needs to change to make the language clear that all organizations being audited must hand over privileged documents.

“If an agency does wrong, they will not be able to share all the documents that prove they have done wrong, share it with their lawyers, so that no one can look at them anymore,” Gélinas said.

“For people who do good, they don’t care.”

In a statement to CTV, Paul Calandra, Ontario’s minister of Legislative Affairs, said the government sees no reason to change legislation.

“The government is not considering legislative changes to provide the auditor general with new powers at this time,” Calandra said.

“In the Laurentian University matter, existing Parliamentary processes worked as intended and the Standing Committee on Public Accounts, with the assistance of the Auditor General, was able to conduct a fulsome inquiry holding Laurentian to account.”

“The significant power to access documents subject to solicitor-client and other legal privileges is rightly vested with elected Parliamentarians who are directly accountable to their constituents.”

For its part, Laurentian University said it is moving forward, not looking back.

“Our priorities are supporting the University's current transformation, strategic planning processes, and delivering an excellent experience for all current and future students."