The Auditor General of Ontario does not have the power to compel confidential documents, court rules
A court has ruled that the Auditor General of Ontario Act does not give the auditor the power to require access to documents covered by solicitor-client privilege.
Since last summer, Auditor General Bonnie Lysyk has been embroiled in a dispute with Laurentian University over access to privileged information as she conducts a value-for-money audit of the insolvent institution.
Lysyk went to court to argue that the wording of the legislation required audit subjects to turn over all documents and allowed her to interview anyone she wanted, including LU’s former attorney.
Laurentian responded by saying that the law gives them the opportunity to hand over the documents, but does not oblige them.
While this is a victory for the university, the same court has yet to rule on a Presidential Warrant issued by the Ontario Legislature requiring LU to turn over all the information Lysyk seeks.
But in the decision released Tuesday, Superior Court Chief Justice GB Morawetz ruled that while legislation can compel audit subjects to hand over inside information, the legislation must be clear and unambiguous.
Morawetz wrote that previous court decisions have declared solicitor-client privilege to be one of the pillars of the Canadian justice system.
“Furthermore, to remain effective, it ‘should remain as close to absolute as possible and should not be disturbed unless absolutely necessary,'” he wrote in his ruling.
Although the law contains language that covers how the Auditor General should handle confidential documents, it does not explicitly give her the power to compel the information.
“The question to be determined is whether … the act demonstrates a clear, explicit and unambiguous intention to abrogate solicitor-client privilege, litigation privilege and settlement privilege,” Morawetz wrote.
“To state the obvious, the Legislature could have followed the course taken by the Province of Nova Scotia and passed legislation clearly expressing an unequivocal intention to abrogate solicitor-client privilege. It did not do so. .”
The way the law’s language is drafted covers how attorney-client information should be handled, the judge said, but does not discuss the auditor general’s power to require that information.
Accepting the arguments of the auditor general’s office “requires reading something into the law that is not expressly stated,” Morawetz said.
While denying the motion, the judge said he was not ruling on Laurentian’s arguments that a law requiring them to hand over the information would violate Canada’s constitution.
“There is no need for me to address this issue,” Morawetz said, adding that Laurentian had failed to take the necessary steps to render a decision on a constitutional issue.
In a statement, Laurentian welcomed the decision.
“We will continue to provide the Auditor General with the documentation and non-inside information that she needs and is entitled to receive to complete her audit,” the statement said.
The school also refuted Lysyk’s suggestions that it had created “a culture of fear” when it comes to dealing with the audit.
“Laurentian has permitted and encouraged all staff to participate in interviews with the Auditor General of Ontario, provided that no inside information is passed on,” the school said.
“We also granted his office direct access to our entire financial database, our registration system, as well as a substantial volume of other non-privileged documents spanning several decades.”
Messages seeking comment from Lysyk’s office have yet to be returned.
In addition to siding with LU, Morawetz also awarded the university $25,000 in legal fees. Read the full decision here.