Lawyers for Laurentian, auditor general, get their day in court

Sudbury — Lawyers for Laurentian University and the auditor general of Ontario appeared before Superior Court Chief Justice Geoffrey Morawetz on Monday morning in an effort to resolve a dispute related to access to information.

The case centres on whether LU has to give Auditor General Bonnie Lysyk access to confidential documents and information normally covered by solicitor-client privilege.

Lysyk is conducting a value-for-money audit in the wake of the university declaring insolvency in February. She argues that Section 10.3 of the Auditor General Act of Ontario, amended in 2004, gives her the power to access those documents.

The section was amended to apply the auditor general's oversight to institutions in Ontario that receive funding from the province.

The amended section reads as follows: "A disclosure to the auditor general under subsection (1) or (2) does not constitute a waiver of solicitor-client privilege, litigation privilege or settlement privilege."

In response, lawyers for Laurentian argued that section gives them the option, not the obligation, to surrender those documents. If the Ontario Legislature meant to override solicitor-client privilege, they argue, the legislation would have said so explicitly.

On Monday, lawyer Richard Dearden, representing the auditor's office, argued that previous court decisions have ruled that the privilege is not absolute. And language in the act clearly shows the intent to allow the auditor to access any information needed to complete her work.

"Yes, it could have been clearer," Dearden said. "(But) it's clear the legislature intended solicitor-client information would be included … What else could they mean?"

He said there are safeguards in place to protect the information, further showing the legislature's intent. He said the idea that turning over that information is optional is "unreasonable."

Otherwise, he said "(Section) 10.3 would be deprived of functional meaning."

He said the first two parts of the section – granting access to information to "Auditor General believes to be necessary to perform his or her duties" – combined with section three shows the intent of the legislation.

"Section 10 read as a whole in my submission provides the auditor general right of access to a grant recipient's privileged information, documents read as a whole," Dearden said.

"So it's actually (Sections) one, two and three."

In response, Brian Gover, the lawyer representing Laurentian, said the only issue to be resolved is whether the act gives the auditor general the power to compel an organization being audited to hand over privileged documents.

Gover said that's one of the fundamental rights of the justice system.

"Everyone has the right to consult with their lawyers in private -- privilege is a fundamental civil and constitutional right," he said.

Must be absolutely necessary

"It is a principle of fundamental justice. Exceptions from that principle must be rare, narrow and justified by absolute necessity."

Such exceptions must be made explicit in any piece of legislation, he argued.

"And you've heard Mr. Dearden say in response to you, chief justice this morning, (the legislation) could have been clearer," Gover said.

"(The legislation) does not say that an audit subject must disclose privileged information to the auditor-general."

There are three other acts that do require parties to disclose privileged information, and do so explicitly. That's not the case here, he said.

Gover said should the court rule in favour of the auditor, the next step would be an appeal arguing the auditor general legislation violates the Canadian Charter of Rights and Freedoms.

"But we are not there yet," he said.

Forcing an organization to hand over privileged documents would increase the likelihood of it being made public, Gover said.

"There's more than a possibility of those things happening," he said.

"The auditor general uses the information to inform her report, even if she does not disclose it directly, even if she does not quote it directly. And staff will have access … It just takes one mistake for privileged information to be disclosed forever."

Many people are viewing this case as Laurentian trying to keep information secret, Gover said, and that is not what is at stake.

"Solicitor-client privilege is not a lawyer's trick to avoid proper scrutiny of her client's conduct," he said.

"It would be wrong to conclude that the result in this case, represents the triumph of secrecy over transparency and accountability. It rather represents the reaffirmation of a principle, which is a cornerstone value in our democracy and, which has been so for hundreds of years."

Morawetz said he would take some time to reach his decision, referencing a busy court docket, but added he would release his ruling as quickly as possible.