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Laurentian lawyers argue Ontario legislature trying to do ‘end run’ in bid for documents

University has its day in court seeking stay of Speaker’s warrant issued last month
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Laurentian University. (File)

By issuing a Speaker’s warrant to attempt to gain access to Laurentian University’s privileged documents, the Ontario legislature has attempted to do an “end run” around statutes governing its function and that of Ontario Auditor General Bonnie Lysyk.

This is one of the claims made by lawyers for Laurentian during a Jan. 18 court hearing in which LU asked for a stay of the enforcement of a rare Speaker’s warrant issued by the Ontario legislature against the insolvent university last month.

The matter was heard by Chief Justice Geoffrey Morawetz, the judge who has heard most matters related to Laurentian’s insolvency.

“It is plain and obvious that the assembly seeks to do here and that is to obtain for the Auditor General documents to which she is not entitled,” said Laurentian lawyer Brian Gover.

The stay Laurentian is seeking would be pending determination of whether the Speaker’s warrant falls within the scope of parliamentary privilege.

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. 

This is the second time Laurentian’s refusal to hand over privileged documents has gone before the courts recently.

Earlier this month, Chief Justice Morawetz released a decision in favour of Laurentian, saying the university is not compelled under provincial legislation to hand over privileged documents to Ontario Auditor General Bonnie Lysyk.

Lysyk, who said she plans to appeal Morawetz’s decision, has been tasked by the Ontario legislature’s Standing Committee on Public Accounts with conducting a value-for-money audit of Laurentian.

The firm Ernst & Young, the court-appointed monitor of Laurentian’s insolvency restructuring, spoke at the Tuesday hearing in favour of the court granting the stay of the Speaker’s Warrant.

Counsel for a number of other parties, including the Speaker of the Ontario legislature and the Ontario Attorney General, the Ontario auditor general, as well as for the Laurentian University Faculty Association (LUFA) and the Canadian Association of University Teachers (CAUT), made submissions in opposition to Laurentian’s request for a stay.

Laurentian said in court filings that part of the test for whether a stay should be granted is if an applicant would “suffer irreparable harm if the application were refused.” 

Another lawyer representing Laurentian, Frederick Schumann, said there’s no question Laurentian will suffer “irreparable harm” if these documents were disclosed.

The Ontario legislature’s Standing Committee on Public Accounts has stated that they will not disclose these documents publicly, but there is nothing legally binding that would stop them from changing their minds, said Schumann.

“In fact, if the documents are delivered to the committee, it will have the sole and unreviewable authority to use them in any ways it sees fit,” he said, including publicly tabling the documents or providing them to the media.

David Taylor, counsel for the Speaker of the Ontario legislature, said there’s no indication that the Ontario legislature would release Laurentian’s privileged documents publicly if they received them.

The only place they’d go would be to the auditor general, “who has her own confidentiality strictures” (the auditor general has stated that the privileged information would be used to inform her audit, and would not be publicly disclosed).

Referring to his own recent decision on the auditor general not having a right to privileged documents, Chief Justice Morawetz asked Taylor, “Is that not doing an end-run around a decision that was rendered quite recently?” 

Taylor replied that the Auditor General Act refers to the kinds of information the auditor general can access, but “they're not about the kinds of information that the Public Accounts Committee can provide her with as part of its legislative and deliberative role.”

He said at issue in this proceeding is the legislative power to “send for persons, papers and things” that has been judicially recognized for nearly 200 years.

“And that's an ancient parliamentary right that's been exercised by legislators in Ontario since well before Confederation,” Taylor said.

Court documents filed by the Speaker of the Ontario legislature on this matter state that the court does not have jurisdiction to stay Speaker’s warrants in the first place, as it has no jurisdiction in matters of parliamentary privilege.

Limits on the court’s jurisdiction flow from the doctrine of the separation of powers of this country’s constitutional framework- - the executive, legislative and judicial branches, lawyers for the Speaker argue.

Laurentian, however, takes the position that the courts have the right to determine whether parliamentary privilege exists in this case.

“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 documents filed by Laurentian.

“If the claimed privilege does not cover the Speaker’s warrants, the ordinary law will operate, and the court will grant relief.”

Laurentian argues that they don’t believe the Ontario legislature has the right to compel LU to produce the documents, on at least three grounds.

One of those grounds is the legislature does not have the right to compel privileged information from an entity that is “not part of the government,” and LU contends it is not part of government as universities in Ontario are “legally independent entities.”

That’s despite the fact, as Taylor said, Laurentian “is a post-secondary education institution that's made by statute of the legislature, and that receives significant provincial funding.”

The lawyer representing the Ontario Attorney General, Josh Hunter, pegged the amount of provincial funding given to Laurentian over 10 years at almost $1 billion.

A number of lawyers speaking during the hearing made reference to the upcoming Ontario provincial election, which is currently set for June 2, and how this could affect the Speaker’s warrant.

Hunter said that when the election writ is dropped and the legislature dissolves, the Speaker’s warrant also lapses.  

Lawyers for Laurentian argue that the new legislature could issue another Speaker’s warrant against the university.

However, Hunter said if the matter is decided after the election, it will be “too late” for this legislature to receive the information it says it needs to “do its constitutional work.”

As the hearing wrapped up, Morawetz thanked all counsel for what he considered to be “exceptional” submissions. 

“It is not an easy issue,” he said. “I am very aware of the timelines that are affecting the parties. They also affect me. I will endeavour to get you a decision as soon as possible.”


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Heidi Ulrichsen

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