Ontario Auditor General Bonnie Lysyk said she will be appealing a court ruling that says Laurentian University is not required to provide her office with privileged information as it conducts a value-for-money audit of the insolvent university.
She said her response to the Jan. 12 ruling is “surprise and disappointment.”
Laurentian declared insolvency last winter, and is undergoing court-supervised restructuring under the Companies’ Creditors Arrangement Act (CCAA).
It is also undergoing a value-for-money audit by the auditor general’s office, but has refused to provide privileged (confidential) information to the audit team.
Due to this dispute, Lysyk has asked the courts for an interpretation of what is allowed for under the Auditor General Act.
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 his decision, Chief Justice Geoffrey Morawetz said the Auditor General Act does not “demonstrate a clear and unambiguous intent to abrogate solicitor-client privilege.”
“In my view, s. 10 falls short of evincing an intention to abrogate privilege in a clear and unambiguous manner,” he said.
Laurentian University issued a statement Jan. 12 regarding Morawetz’s ruling.
“The decision released today by Chief Justice Morawetz of the Superior Court of Justice provides welcome clarification regarding what information and documents the Auditor General is entitled to receive,” the statement said, in part.
“The Chief Justice confirmed that the Auditor General is not entitled to obtain privileged information.”
Asked by Sudbury.com what she thinks of Morawetz’s interpretation of the Auditor General Act, Lysyk said the matter will be addressed in the appeal of his ruling.
Lysyk said while she “respects the judge,” the process for years has been that her office has received unfettered access to information, both privileged and non-privileged.
That privileged information is kept confidential. The audit team prepares the final report, which is shared with the audit subject before it is made public.
It’s not just privileged information that’s been a problem as her office has attempted to conduct an audit of Laurentian, Lysyk said.
She said in some cases, Laurentian has refused to provide access to certain emails because it would take too long to remove privileged information from those emails.
The AG office’s concern is that it receives complete enough information “to be able to ensure that the report we reproduce is reflective of what happened at Laurentian.”
“Laurentian keeps saying they co-operated,” Lysyk said. “But all of these actions are not demonstrating co-operation.”
Chief Justice Morawetz’s ruling this week on the scope of the Auditor General Act is not to be confused with the Speaker’s warrant issued by the Ontario legislature last month.
“It’s a separate process,” Lysyk said.
The Speaker’s warrant was requested by the Standing Committee on Public Accounts, the body that tasked Lysyk with the audit of Laurentian last spring in the first place.
It orders Laurentian president Robert Haché and Claude Lacroix, now the former chair of the university’s board of governors, to release a long list of documents, including privileged documents, by Feb. 1.
Laurentian had offered to release some privileged documents to the legislature, but not everything that was asked for, a situation MPPs say is unacceptable.
The university is asking the courts for a stay of the Speaker’s warrant that orders them to release the aforementioned documents.
Documents filed before the courts this week show that a hearing on the matter is scheduled to take place Tuesday, Jan. 18.
Lysyk, along with the Speaker of the Ontario legislature and the Attorney General of Ontario, filed factums related to that matter this week.
The Speaker and the Attorney General ask that the request for the stay of the Speaker’s warrant be dismissed, while Lysyk said she supports the positions taken by the aforementioned two parties.
Lysyk said the only reason her office provided a factum in this case is because in Laurentian’s submission to the courts “they challenged my integrity and the integrity of our office. And I, you know, I still sit here and go, ‘Why was that necessary?’”
For example, Laurentian’s factum said Lysyk was “secretly working” with the Standing Committee on Public Accounts to “circumvent” the court process surrounding the interpretation of the Auditor General Act and her right to access privileged information.
“This allegation is unfounded and troubling,” said the auditor general in her factum.
