Auditor General seeking court hearing on access to information Laurentian University deems "privileged"

Ontario's Auditor General is taking Laurentian University to court in a dispute over how to define free and unfettered access to the university's accounts.

The Standing Committee on Public Accounts passed a motion last April 28 to ask the Auditor General to conduct a value-for-money audit of Laurentian's operations for the period of 2010-2020.

Nickel Belt MPP France Gelinas introduced the motion, saying someone needed to find out what happened to put the university into a financial crisis.

In court documents filed publicly on Wednesday, Sept. 29, the Auditor General defined her role in the matter:

"The Office of the Auditor General is an independent, non-partisan Office of the Legislative Assembly of Ontario that serves the Members of Provincial Parliament and the people of Ontario. One of the roles of the Auditor General is to hold Public Sector and Broader Public Sector organizations (such as universities) accountable for financial responsibility and transparency." 

The university declared insolvency February 1st, 2021 saying it didn't have the money to meet payroll that month.

Since then it has been restructuring under court supervision.

Dozens of programs have been cut and more than a hundred employees terminated.

Interpretation of the Auditor General Act at centre of issue

The university is looking at monetizing its real estate assets and a governance and operational review is underway to seek further savings.

Lysyk says in court documents that she notified Laurentian of the audit last May and the process is ongoing.

She says while some information has been forthcoming, there has been a disagreement over what Section 10 of the Auditor General Act means.

Lysyk says it "imposes a mandatory duty" on Laurentian to give information and records to the Auditor General, and entitles the Auditor General to have "free access" to Laurentian's information and records, and that includes privileged information.

In the court documents, Lysyk says Laurentian disagrees with her interpretation of Section 10 and "has consistently denied the Auditor General access to its privileged information and records."

Laurentian's President and Vice-Chancellor Robert Haché issued a statement on the matter.

"Laurentian respects the Auditor General's mandate, and has granted her office direct access to our entire financial database, enrollment system, and all non-privileged documents requested. No Ontario court has ever ruled on whether the Auditor General can compel audit subjects to provide privileged information between lawyers and their clients. After agreeing not to seek privileged information, the Auditor General now seeks a ruling on that issue, and we will abide by that ruling. Until then, we will continue to provide any other non-privileged information."

In her application, Lysyk describes Laurentian's stance in an email from Haché sent to Assistant Auditor General Gus Chagani on August 4, 2021:

 "… the Auditor General does not have the right to access privileged information. The Auditor General Act allows, but does not require, an entity under audit to disclose privileged information to the Auditor General. The Act provides that, if such disclosure occurs, it is not a waiver of privilege, but, again, does not entitle the Auditor General to such disclosure. Of course, the University may choose to disclose privileged information to the Auditor General, but that decision is the University's to make."

Laurentian says it's not bound to provide privileged information

Lysyk includes more documentation in her application in the form of another letter that Haché sent to her on August 31.

"While it (the Auditor General Act) does contemplate that the Ontario government will provide privileged documents to the Auditor General, that is not the case for entities outside the government. Nothing in the document contemplates that grant recipients such as the University will provide privileged documents to the Auditor General."

The Auditor General is asking the Superior Court to hear the matter and to issue a declaration that she has a right to free and unfettered access to information and records that are subject to solicitor-client privilege, litigation privilege or settlement privilege as defined in subsection 10(2) of the Auditor General Act.

No date has been set for the hearing.