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Ontario's legal community keeping a close eye on Laurentian University court battle

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The ugly dispute between Laurentian University and Ontario's auditor general over the disclosure of privileged documents has the close attention of the legal community, says a Toronto-based lawyer.

Ranjan Das is a partner at BYLD Barristers who has tried several cases in Sudbury. He told CTV News on Friday he couldn't comment on the specifics of the Laurentian case, but said broadly, it has big implications for lawyers.

"Yes, certainly it is of great importance to, I think not just the legal profession, but for Canadians at large," Das said.

"Certainly for members of the bar, indeed, this will be an important case."

Laurentian University is resisting attempts by Auditor General Bonnie Lysyk to access documents and information covered by lawyer-client privilege. Lysyk says Ontario's Auditor General Act grants her access to any documents while she is conducting an audit.

She is conducting a value-for-money audit of LU after the school declared insolvency Feb. 1, 2021, under the Companies' Creditors Arrangement Act.

Laurentian refused to hand over the documents and the matter ended up before Ontario Superior Court Chief Justice Geoffrey B. Morawetz in early December. Before Morawetz made a ruling, however, the province's Standing Committee on Public Accounts passed a motion for a Speaker's warrant, requiring LU to hand over all the documents Lysyk wants.

Now the university is fighting the Speaker's warrant in court and Das said the decision will have much bigger implications beyond the situation at Laurentian.

"I think all members of the bar, and certainly members of the public, would be extremely interested to see what is going to occur," he said.

"In this particular case, certainly the broader principle is for the protection of the ability of lawyers to do their job. And for clients to obtain … full and frank legal advice."

Das said the right to have confidential consultations with a lawyer is protected by Canada's constitution.

"Privilege is really one of the core legal principles of our Canadian justice system," he said.

"That is really the crux of our legal system (and is key for) any lawyer to be able to do her job."

The right to have confidential communications with lawyers is almost absolute, Das said, with the Supreme Court of Canada setting an extremely high bar for setting it aside.

"The stated intention and purpose of lawyer-client privilege is that there must be freestanding dialogue between the lawyer and their client," he said.

"And the client must be able to speak freely and without any risk of having that communication disclosed to a third party or to someone else."

The right to that confidentiality belongs to the client, he said, not to lawyers. There are some broad exceptions – such as if a lawyer recommends a good restaurant, that sort of advice would not be privileged. Or if a client tells their lawyer they are planning to murder someone or commit a major crime.

"And if a client says, 'hey lawyer, can you help me undertake a process to break the law or to commit a criminal act?' In those circumstances, some courts have said … it's not a privileged communication in the first place. So there are some narrow exceptions."

And in legal terms, he said the right to lawyer-client privilege is the same for an individual as it is for companies.

"There's no distinction," Das said. "It is the highest form of privilege, or one of the highest and most important rules of law in Canada."

Ontario Auditor General Bonnie Lysyk listens to questions on her special report on the Ontario Lottery and Gaming Corp.'s Modernization Plan during a news conference on it at the Ontario Legislature in Toronto on Monday, April 28, 2014. (Frank Gunn / THE CANADIAN PRESS)

Issues of national security, for example, could be grounds for setting aside privilege, but governments would have to convince the courts first.

"The starting point is that the lawyer-client privilege is going to be upheld," Das said. "Meaning, if there is a way to interpret that legislation to not mandate disclosure of lawyer-client information or documentation, it will be interpreted in that manner."

At its root, Das said lawyer-client privilege is a key right for clients to ensure they are treated fairly in the court system. Clients must be able to tell their lawyers anything.

If clients hold back information out of fear of it becoming public, he said it directly affects the lawyer's ability to defend them. You could end up with information coming out at trial that the defence had no clue about.

"Usually you tell the client in a civil context, tell me the good, bad and the ugly -- I have to know everything in order to protect your interests," Das said.

"If there's a fear or a risk that those communications are going to be disclosed to a third party or to the opponent, that will just make it more difficult, if not impossible, for the lawyer to provide legal advice or for the client to feel comfortable in those situations."

Groups like Laurentian that receive public funding are subject to increased scrutiny from the public. But Das said receiving money from government doesn't mean an organization no longer has the right to confidential communication with lawyers.

"Privilege cannot be just abrogated merely by (receiving) funding," he said.

"I don't think that in and of itself, it has really ever been found by the court or the Supreme Court to say 'we're going to permit disclosure of client privilege documentation, merely because of funding.'"

No date has yet been released when the court will deal with the case. But Das said he and other lawyers will be watching closely.

"In this particular case, the broader principle is the protection of the ability of lawyers to do their job," he said.

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