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Auditor Basic of Ontario faces Laurentian College in Courtroom of Appeals | Disaster at Laurentian College

The case stems from an April 2021 investigation into Laurentian University’s finances by Ms Lysyk, who had placed herself under the protection of her creditors two months earlier.

Bonnie Lysyk, who wanted access to documents subject to professional secrecy, including correspondence between Laurentian University, had met opposition from the post-secondary institution.

She then appealed to the courts but was dismissed last January.

That’s what Chief Justice of the Supreme Court, Geoffrey Morawetz, decided in his verdict The Auditor General Act does not require audited entities to provide the Auditor General with documents subject to solicitor-client privilege, litigation privilege, or negotiation privilege.

Laurentian University building

Auditor General of Ontario Bonnie Lysyk examines the financial crisis at Laurentian University.

Photo: Radio Canada / Yvon Theriault

The Auditor General immediately signaled her intention to appeal the decision. His attorney, Richard Dearden, finally pleaded before Ontario Court of Appeals Judges Michael Tulloch, Julie Thorburn and Jonathon George on Tuesday morning.

He believes Judge Morawetz wrong in interpreting Section 10 of the Auditor General Act (New window)which states in its section 2 that the holder of this title has the right of free access on the documents that he considers necessary for the fulfillment of his duties.

Section 3 of said article, resulting from an amendment to the law in 2003, indicates thisa disclosure to the Auditor General […] does not constitute a waiver of privileges.

It’s aboutwarranty whoshows the clear, explicit and unequivocal intention of the legislator to remove the audit privilegepleaded Me Dearden.

Comptroller Bonnie Lysyk

In her preliminary report on the crisis at Laurentian University, Ontario Auditor General Bonnie Lysyk concluded that the institution had “planned strategically” to protect itself from its creditors.

Photo: The Canadian Press/Christopher Katsarov

In addition, he pointed out, another amendment to the law was made in 2003 to ensure the confidentiality of personal information obtained by the Auditor General in the course of his investigations.

In other words, Mr. Dearden said, by adopting the amendments, the members of the day wanted to ensure that the bodies investigated by the Auditor General could not invoke the privilege of refusing him the surrender of documents while imposing restrictions on the auditor Prevent General from disclosing the information contained in these documents.

However, in his decision last January, the Chief Justice of the Superior Court rather interpreted the Section 10 amendment as guaranteeing the protection of confidential information that might be contained in documents sent to the Auditor General, sometimes inadvertently.

It is this latter interpretation that Laurentian University attorney Fredrick Schumann defended in court on Tuesday.

Mr. Dearden asks us to conclude that the legislature intended to change sections of the law that do not abrogate privilege to sections that do abrogate privilegehe pointed out.

Section 10 does not suggest in its vocabulary that the privilege be revoked. Clearly, expressly and unequivocally she certainly does not do this. »

A quote from Frederick Schumann, attorney from Laurentian University

Privilege vs. Public Interest

The Auditor General of Ontario Act nowhere expressly states that the title holder has the right to request documents from an entity it is investigating, even if it is privileged.

In Nova Scotia, for example, the relevant law (New window) states clearly that the Auditor General has the right to request them notwithstanding the Freedom of Information and Privacy Protection Act or any other law and notwithstanding all other rights to privacy, confidentiality and privilege, including attorney’s and client’s privilege, procedural privilege or negotiation privilege.

Gilles LeVasseur wears a dark blue jacket

Gilles LeVasseur is Professor of Law and Management at the University of Ottawa.

Photo: Radio Canada / Simon Lasalle

According to Gilles LeVasseur, a professor of law and management at the University of Ottawa, the Supreme Court Justice reiterated this in his decision As it is not clearly stated, we cannot enforce it […] Instances that have permission to relinquish that permission.

You can waive the privilege, but you cannot enforce the waiver [au privilège]he explains.

But the appeals court judges have a very specific issue to deal with, he adds.

Yes, privilege exists, yes it is so defined, but in certain circumstances, when the interest and need of society is at stake, we should not be surprised if the Court of Appeal says that in this case you must be able be able to waive this privilege by the authority expressed by the auditor. »

A quote from Gilles LeVasseur, Professor of Law and Management at the University of Ottawa

A “super important” file

The Auditor General eventually received the vast majority of the documents she requested from Laurentian University.

The final investigation report is also expected to be published shortly.

But Tuesday’s call has a meaning that goes far beyond Laurentianbelieves Nickel Belt MP France Gélinas, who fears that will become the fall of Laurentian University a previous oneespecially when Ms. Lysyk doesn’t win her case.

Portrait of France Gelinas

NDP MLA for Nickel Belt, France Gélinas

Photo: Radio Canada / Aya Dufour

This is extremely important as we know that there are already other governmental payment transfer organizations looking at what Laurentian did with the intention of using the same process as Laurentian to block the Auditor General’s access and these are usually organizations are who have either done something dishonest or have really serious problems that they don’t want to shareexplains the deputy.

The Auditor General’s job is to ensure that taxpayers’ money is spent wisely. [Si Mme Lysyk est déboutée à nouveau]other organizations will use this precedent and say, “We don’t want you to look at certain documents. Whether these documents are actually shared by the court we will never know because the Auditor General cannot see them. »

A quote from France Gélinas, MEP for Nickel Belt

The three judges who heard the appeal did not say exactly when they will make their decision.

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