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Laurentian continues to try to delay order requiring it to turn over privileged documents

University asking courts to provide the stay ‘pending a determination of whether their issuance fell within the scope and extent of the Legislative Assembly’s parliamentary privilege’
Laurentian University campus (winter)
Laurentian University. (NorthernOntarioBusiness.com)

Counsel for Laurentian University is asking the court for a stay of the Speaker’s warrant issued against the university earlier this month.

That 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.

Laurentian University, which declared insolvency this past winter, continues to undergo restructuring under the Companies Creditors’ Arrangement Act (or CCAA for short).

The stay Laurentian is asking for is “pending a determination of whether their issuance fell within the scope and extent of the Legislative Assembly’s parliamentary privilege, or further order of the Court.”

Alternatively, Laurentian is asking for “advice and directions from the Court on how the University should comply with the Speaker’s warrants, given the existing court orders and the CCAA restructuring process.”

While the motion record on the matter is dated Dec. 17, it just appeared on the website dedicated to Laurentian’s CCAA process over the week. A date for a hearing on the matter has not yet been set.

The Speaker of the Ontario legislature has also filed a “responding record” to Laurentian, but it mostly just features a recap of what’s happened to date that led to the Speaker’s warrant.

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 in the wake of Laurentian’s insolvency.
The matter was heard by the courts earlier this month, 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 Dec. 9 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.

“The very strong advice that we have received is if we get into the sharing of privilege within the CCAA process, the CCAA process will fail,” said Haché at the December Laurentian senate meeting.

The court documents filed by Laurentian Dec. 17 in relation to the request for the stay mirror Haché’s statement, saying the Speaker’s warrant, if enforced, would “cause irreparable harm” to the LU’s restructuring.

If LU refuses to comply with the Speaker’s warrant and fails to produce privileged documents as well as documents protected by court sealing orders, that refusal could result in, among other things, “the punishment, including potentially the imprisonment, of its President and the Chair of its Board of Governors,” an action that would impede the progress of the CCAA process, the university argues.

Laurentian says in its court filing that there are serious questions to be tried as to the validity of the Speaker’s warrant, on at least three grounds.

The university says the legislature does not have the right to compel privileged information from an entity that is “not part of the government.”

Laurentian contends it is not part of government as universities in Ontario are “legally independent entities,” despite receiving government funding.

The university also says that parliamentary privilege of a legislature does not extend to compelling privileged information that a federal statute “prohibits a person or entity from disclosing.”

The federal statute that applies here is the CCAA law, Laurentian said, and as a federal statute, it is “paramount over provincial legislation to the extent the two come into conflict.”

Laurentian also argues that the legislature limited its own power “to audit the expenditure of public funds and the power to obtain documents and information for that purpose” by “enacting the Auditor General Act, which devolved on the Auditor General.”

The university said that the result is that the legislature’s Standing Committee on Public Accounts itself “no longer has the power to obtain documents for the purpose of an audit. Its remaining role is to receive and comment on the Auditor General’s report.”