In the latest document filed by Laurentian University before the courts, the university’s counsel lays out its case that the Ontario Superior Court of Justice has the jurisdiction to grant a stay of a Speaker’s warrant issued by the Ontario legislature against LU last month.
Laurentian requested the courts for the stay of the Speaker’s warrant just before Christmas. A date for a hearing on the matter has not yet been set.
The Speaker’s warrant orders Laurentian president Robert Haché and Claude Lacroix, who’s now the former president of the university’s board of governors, to release a long list of documents, including privileged documents, by Feb. 1.
If the documents are not handed over, Haché and Lacroix could possibly face punishment, including imprisonment.
Laurentian University, which declared insolvency more than 11 months ago, continues to undergo restructuring under the Companies Creditors’ Arrangement Act (or CCAA for short).
Counsel for Laurentian argue that the stay should be granted, as they don’t believe the legislature has the right to compel LU to produce certain documents.
A factum filed by Laurentian said the Speaker’s warrant was issued under the legal authority of the legislature’s “constitutionally protected parliamentary privileges, including the right to institute inquiries and to require production of documents.”
The privilege of the legislature is “an exemption from ordinary law,” said Laurentian’s factum.
However, the courts have the right to determine whether parliamentary privilege exists in this case, counsel for the university argue.
“Courts determine whether a category of parliamentary privilege exists and delimit its scope; actions within the scope of the privilege are not subject to judicial review,” said the document.
“If the claimed privilege does not cover the Speaker’s warrants, the ordinary law will operate, and the court will grant relief.”
Laurentian said the courts also have jurisdiction to grant an “interlocutory stay,” meaning a temporary or provisional stay (in this case, of the Speaker’s warrant).
“Since the Court has jurisdiction to determine the scope of parliamentary privilege and whether the Speaker’s warrants fall within that scope, it must also have the jurisdiction to grant interlocutory remedies to preserve the rights of the parties pending its determination,” said Laurentian’s factum.
The court document submitted by the university said the issue meets the test for a stay.
A preliminary assessment “must be made of the merits of the case to ensure that there is a serious question to be tried” (Laurentian said there are several serious questions surrounding the matter - you can read their arguments in this previous Sudbury.com story).
It must also “be determined whether the applicant would suffer irreparable harm if the application were refused.”
“If the documents were disclosed … the harm to Laurentian would be irreparable and great,” said Laurentian’s factum.
“Disclosing Laurentian’s privileged communications would betray the confidence it placed in its lawyers and undermine their ongoing relationships.”
Finally, “an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.”
Earlier this week, Nickel Belt MPP France Gélinas said she was “dismayed” that Laurentian is choosing to fight the Speaker’s warrant in court.
Gélinas said there is no doubt that Laurentian “has no choice but to comply” with the Speaker’s warrant — only the third issued in the history of Ontario’s legislature — “and we will win, and they will lose.”
“This is the full power of a legislative assembly against a tiny weeny little transfer payment agency called ‘a university’,” she said. “Like this is David and Goliath, except that David is not going to win, for Goliath will win.”
Laurentian’s latest request of the courts has its roots in a dispute between Laurentian and Ontario Auditor General Bonnie Lysyk.
Laurentian is refusing to provide Lysyk with privileged documents as she conducts a value-for-money audit of the university.
She was tasked with the value-for-money audit this past spring by the Ontario legislature’s Standing Committee of Public Accounts (of which Gélinas is a member) in the wake of Laurentian’s insolvency.
The matter was heard by the courts in December, and Chief Justice Geoffrey Morawetz reserved his decision, which as of this article’s publication, has yet to be released.
The Ontario legislature then issued a rare Speaker’s warrant last month at the behest of the Standing Committee of Public Accounts. As stated above, it requires Laurentian to release the list of requested documents by Feb. 1.
Laurentian had offered to release some privileged documents to the legislature, but not everything that was asked for, a situation Public Accounts committee members say is unacceptable.
