Auditor general argues legislation requires Laurentian to hand over privileged documents

According to court documents, Ontario Auditor General Bonnie Lysyk is arguing legislation compels Laurentian University to provide access to all documents when she requests them as part of her audit process.

Lysyk is seeking access to confidential documents as part of her audit of the university, which the province ordered in April of this year. Laurentian filed for insolvency in February under the Companies' Creditors Arrangement Act (CCAA).

In court filings ahead of a Dec. 6 hearing, she argues the Auditor General Act grants her office access to any document she requires to complete her work.

"The office of the Auditor General has consistently advised Laurentian University of Sudbury employees that section 10 of the Auditor General Act provides the Auditor General with a right of access to Laurentian University’s privileged information and records," Lysyk said in an affidavit to the court.

The AG cites, among other sources, the 2006 Handbook for Interaction with the Auditor General of Ontario -- a guide for government departments and other organizations that receive public funding -- on how they should handle requests.

"The protocol confirmed the Auditor General's right to access to privileged information, but more importantly it confirmed that the disclosure to the Auditor General does not constitute a waiver of the privilege by the privilege holder and it stated conditions for the treatment of this information by the Auditor General."

In response, lawyers for the university argue they have the option to turn over the documents, not an obligation. LU president Robert Haché said in an email Aug. 4 it is up to the university whether to release the documents.

"The Auditor General does not have the right to access privileged information," Haché wrote.

"The Auditor General Act allows, but does not require, an entity under audit to disclose privileged information to the Auditor General ... Of course, the university may choose to disclose privileged information to the Auditor General, but that decision is the university’s to make.”

And it a post on Laurentian's website, Haché released this statement:

"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. We remain committed to becoming a fully restructured, financially viable, and renewed Laurentian University."

Read the full court document here.