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Ontario AG appeal of Laurentian decision goes before courts

The case was heard by the Ontario Court of Appeal on Nov. 15
130422-bonnie lysyk auditor general
Ontario Auditor General Bonnie Lysyk.

Counsel for Ontario’s auditor general went before the courts Nov. 15 to appeal a decision handed down in early 2022 in which a judge sided with Laurentian University’s position that it did not have to provide privileged documents to the AG’s office.

Ontario Auditor General Bonnie Lysyk was tasked with a value-for-money audit of Laurentian University’s finances by the legislature’s Standing Committee on Public Accounts last year.

The full report coming out of that audit is to be released on Thursday as Laurentian prepares to finally exit insolvency, something that’s expected to happen by the end of November.

In the course of Lysyk’s audit, Laurentian refused to provide privileged (confidential) information to the audit team, saying they did not have to do so under provincial legislation.

Due to this dispute, Lysyk asked the courts for an interpretation of what is allowed for under the Auditor General Act. In January, a judge ruled that the act does not give AG the right to see privileged documents.

However, Laurentian did end up later having to hand over most of the requested documents after the legislature issued a rare Speaker’s Warrant.

Lysyk said last January she was planning to appeal the court’s interpretation of the Auditor General’s Act, something that came to pass this week.

The case was heard by a panel of judges: Justice Michael Tulloch, Justice Julie Thorburn and Justice Jonathan George. Following submissions by counsel for the Auditor General’s office and for Laurentian University, the panel reserved its decision on the matter.

At issue in the case are a couple of sections of the Auditor General Act, most notably Section 10, which deals with the “duty to furnish information” to the auditor general, and how that information must be treated.

In the original decision released last winter, Chief Justice Geoffrey Morawetz said the Auditor General Act does not “demonstrate a clear and unambiguous intent to abrogate solicitor-client privilege.”

At Tuesday’s hearing, Richard Dearden, counsel for Ontario’s AG, argued that Morawetz “erred in law” in coming to this conclusion.

“When Section 10 of the Auditor General Act is read in its entirety and in the context of the Act as a whole, it is clear that the Legislature provided the Auditor General with access to an auditee’s privileged documents,” said a factum provided by the AG’s office.

Dearden said Section 10 of the act outlines the “mandatory obligations” of those undergoing audits.

That includes that the Auditor General is “entitled to have free access to all books, accounts, financial records, electronic data processing records, reports, files and all other papers, things or property.”

He said those disclosures would “have to cover” privileged information. 

A factum from Laurentian said that Chief Justice Morawetz was correct in his assessment of the Auditor General Act. Section 10 “does not evidence a clear, explicit and unequivocal intention to abrogate privilege,” the document said.

Laurentian counsel Fredrick Schumann said the question that needs to be grappled with is whether the “abrogation of privilege of the entire government and the broader public sector” is what the Ontario legislature intended.

“I mean, really, in a way, for Mr. Dearden’s argument to succeed, you should be able to stand up, read Section 10 (of the Auditor General Act) and sit down,” Schumann said. “That's how obvious it should be, in my submission.”

Schumann also brought up a bill that has been brought forward in the legislature this year to amend the Auditor General Act so that future challenges to the act such as that brought forward by Laurentian would be eliminated.

The lawyer referred to when the Auditor General Act was last amended, back in 2004. 

“It certainly shows you that it is no secret to the legislature on how to write a statue that abrogates privilege,” Schumann said, adding that they knew how to do it in 2004, and “they know how to do it in 2022.”

Heidi Ulrichsen is Sudbury.com’s associate content editor. She also covers education and the arts scene.