In a document filed before the courts, the Office of the Auditor General of Ontario claims Laurentian has “created a culture of fear” among its staff to discourage them from talking to its office as the auditor general conducts a value-for-money audit of Laurentian University’s finances.
Laurentian, which continues to undergo court-supervised insolvency restructuring, says it has co-operated with this audit, but has not provided the auditor general’s staff with privileged (meaning confidential) documents.
Robert Haché, president of Laurentian, said in a statement on the subject earlier this fall that no Ontario court has ever ruled on whether the Auditor General can compel audit subjects to provide privileged information between lawyers and their clients.
Regarding the auditor general’s statements about what it calls the “culture of fear” at the university, Laurentian issued the following written statement Friday.
“Laurentian has been co-operating with the Auditor General’s audit. The university has authorized and encouraged all staff to participate in interviews with the Auditor General. We have also granted her office direct access to our entire financial database, enrollment system, as well as all requested, non-privileged documents.”
Auditor General Bonnie Lysyk has sought a ruling on the issue, and Haché said the university will abide by that ruling.
Her office sets out its case in a factum filed with the Ontario Superior Court of Justice on Nov. 12.
The factum said the Office of the Auditor General is working to make things better for the people of Ontario, and the Laurentian University situation is important to everybody.
“The value-for-money audit is not to impede Laurentian University, it is to help the University,” said the factum.
“As well, as stated by MPP Toby Barrett before the Standing Committee on Public Accounts, ‘we also want to look forward and we want to ensure that something like this doesn’t happen in another academic institution elsewhere.’”
The auditor general’s office says it is entitled to view privileged documents under Section 10 of the Auditor General Act.
The court document says there is a safeguard in the Act that requires the Auditor General to maintain the secrecy of information and documents disclosed “that are subject to solicitor-client privilege, litigation privilege or settlement privilege.”
It says the auditor general has “communicated very clearly to Laurentian University that draft reports are discussed with auditees and the OAGO (Office of the Auditor General) respects privilege. The review of the draft report is an opportunity for the auditee to tell the OAGO whether anything is privileged. If there is no waiver of privilege, privileged information is not included in the report.The OAGO respects the issue of privilege, handles it appropriately and works closely with the auditee.The OAGO gets a sign off in a letter of representation from the auditee. The OAGO has never had a letter of representation not signed.”
The Auditor General of Ontario is requesting that the courts issue a declaration that every grant recipient is required to give the Auditor General the information and records described in subsection 10(1) of the Auditor General Act, including information and records that are subject to solicitor-client privilege, litigation privilege or settlement privilege.
The office also asks that the courts issue a declaration that the Auditor General has a right to free and unfettered access to the information and records described in subsection 10(2) of the Auditor General Act that are subject to solicitor-client privilege, litigation privilege or settlement privilege.
Due to this dispute, the two parties attended a Sept. 27 case conference with Chief Justice Geoffrey Morawetz, the judge who has heard most matters related to Laurentian’s insolvency.
Morawetz endorsed a timetable for the courts to hear an application for an interpretation of the Auditor General Act in relation to this matter.
That timetable says the hearing date is to be set Dec. 6.