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Laurentian objects ‘in the strongest possible terms’ to AG’s ‘culture of fear’ allegations

University says AG’s demands related to privileged information would violate Charter of Rights
2020-10-02 Bonnie Lysyk 1
Bonnie Lysyk. Photo supplied

Lawyers for Laurentian University have responded to claims by the Office of the Auditor General of Ontario that LU has “created a culture of fear” among its staff to discourage them from talking to the auditor general’s office.

The auditor general’s office is undertaking a value-for-money audit of Laurentian, which declared insolvency last winter, and is currently undergoing court-supervised restructuring.

There is a dispute between Laurentian and the auditor general’s office. 

Laurentian contends it is not compelled under the Auditor General Act to provide the auditor general with privileged information, and has refused to do so. 

The auditor general’s office says it is entitled to this information under section 10 of the Act, and has sought a court ruling on the issue. 

A factum from Laurentian, filed with the courts Nov. 29, said the university objects “in the strongest possible terms” to the allegation in the auditor general’s Nov. 12 factum regarding the aforementioned “culture of fear.”

“The auditor general’s allegation was incorrect,” said the Laurentian factum.

“The university has provided access to all staff for interviews with the auditor general. The allegation that it has created a ‘culture of fear’ appears to be based purely on the university’s direction to its staff that they not disclose privileged information. That direction was entirely appropriate.”

Regarding the dispute about whether Laurentian is required to provide privileged information to the auditor general’s office, LU has requested a few orders from the courts.

The university asks that the court declare that the Auditor General Act does not require audit subjects to give the auditor general information and records that are subject to solicitor-client privilege, litigation privilege, or settlement privilege.

It also asks that the courts declare that the Auditor General Act does not give the auditor general a right to free and unfettered access to information and records that are subject to solicitor-client privilege, litigation privilege, or settlement privilege.

It also asks that the courts “award the respondent the costs of this application.”

Laurentian’s factum said the auditor general’s office has requested numerous categories of documents that would contain privileged information.

That includes all in-camera briefing packages for the board of governors and its committees from 2010 to present; all emails from 2013 to present of various university staff, including its former general counsel (until July 2021), its current president, and its former presidents; the entire electronic storage areas of various university departments, including legal/general counsel, corporate secretary, and board of governors; and all emails between Laurentian personnel and with the domain sudburylaw.com, which is a law firm that has clients who are employed at the university.

Laurentian’s factum also said the auditor general’s position is that she is entitled to see the communications between Laurentian personnel and the lawyers at Thornton Grout Finnigan LLP, who are representing Laurentian in the CCAA proceeding. 

She also asserts that she is entitled to see communications between Laurentian personnel and the lawyers at Stockwoods LLP who are advising the University in relation to her value-for-money audit, and representing it in this very application.

“There is no evidence that the auditor general needs privileged information to perform this, or any other value-for-money audit,” said the university’s factum.

Further, Laurentian’s factum goes on to state, the auditor general takes the position that she is entitled to compel privileged information outside the time period stipulated by the standing subcomittee (2010-2020).

“She has requested emails and other information up to the present, because of the alleged ‘pushback’ she received from Laurentian,” said the university’s factum.

“In her view, it seems, not providing privileged information, while Laurentian was in the midst of litigation over its very survival, was a suspicious act that warranted expanding the temporal scope of the audit.”

Laurentian says in the court document that if section 10 of the Auditor General Act “did abrogate privilege as the auditor general contends, it would be unconstitutional.

“As further reassurance that s. 10, correctly interpreted, does not compel audit subjects to provide privileged information, consider the constitutional implications if it did.”

If section 10 abrogated privilege, it would be “in flagrant violation of the Charter of Rights ...

“The Auditor General’s interpretation of s. 10 would infringe two Charter rights, the right to be free from unreasonable search and seizure under s. 8, and the right not to be deprived of life, liberty and security of the person unless in accordance with the principles of fundamental justice, under s. 7.”