Laurentian University asks court to quash Speaker's warrants seeking privileged information
Legislature voted unanimously Dec. 9 to issue warrant for production of privileged information
Lawyers for Laurentian University are seeking to stop the execution of Speaker's warrants that would compel it to release a long list of documentation and communications — some covered by solicitor-client privilege — by Feb. 1.
A Speaker's warrant is a rarely used provincial government tool that can force the release of sensitive documents.
The warrants follow a legal battle between Laurentian, which is under creditor protection, and Ontario Auditor General Bonnie Lysyk, who has requested the university's privileged documents for a value-for-money audit. She began that task at the request of the Ontario Legislature on April 28, 2021.
After several months, Lysyk applied to the courts to define privilege following conflict with Laurentian over what she called a "lack of transparency."
An Ontario Superior Court judge heard from both sides on Dec. 6 and reserved his decision as to whether Lysyk should have access to Laurentian's privileged documents.
Following the court hearing, the province's standing committee on public accounts convened on Dec. 9 to vote on issuing the Speaker's warrants.
During debate, Aurora—Oak Ridges—Richmond Hill MPP Michael Parsa, a member of the committee, said Laurentian was given many opportunities to comply with requests for documents, and challenged the committee numerous times.
Laurentian, for its part, says it has co-operated with the auditor general.
"The university has authorized and encouraged all staff to participate in interviews with the auditor general of Ontario," it said in a statement. "We have also granted her office direct access to our entire financial database, enrolment system, an extensive amount of documents, and are endeavouring to provide all non-privileged documents."
In documents filed following the issuing of the warrants, the university's counsel is asking the court to stay and suspend their enforcement after determining whether they fall within the Legislative Assembly's scope.
It adds that if the court decides Laurentian should comply with the warrant, it's asking for advice and directions on how to do that, given existing court orders and the Companies' Creditors Arrangement Act (CCAA), which, it insists, prohibits it from providing the information.
Laurentian argues it's protected by the CCAA, which is federal legislation, and to be forced to provide privileged information through the Speaker's warrants would put top administrators in contempt of court.
It's an unprecedented situation for a public-sector institution to undergo restructuring under CCAA.
Counsel contends the law protects anyone from unsealing two letters exchanged between the Ministry of Colleges and Universities and Laurentian president and vice-chanceller Robert Hache two weeks prior to declaring insolvency because, if the information becomes public, it could endanger Laurentian's success at restructuring.
The sealing order has been extended to the end of January 2022, when the university again appears before the court to determine its next steps.
Laurentian's counsel is also questioning the validity of the Speaker's warrants.
It argues the parliamentary privilege of a provincial Legislative Assembly does not extend to compelling the production of information covered by solicitor-client privilege.
Lysyk is seeking emails from the accounts of the university's past and current solicitor, as well as those exchanged with a law firm where the former chair of the board of governors works.
Laurentian 'a legally independent entity': court docs
Laurentian also says the Auditor General Act itself limits what information can be produced for an audit, and the Legislature can't go back and order something that it did not include in its own legislation by resorting to parliamentary privilege.
In court documents, counsel writes that parliamentary privilege can't be applied to the university because it is not part of government.
"Laurentian University is not part of the legislative assembly, nor, indeed, is it part of the government at all. Universities in Ontario are legally independent entities. Laurentian is no exception: it is a corporation, and, although it receives funding from the government, it is not part of government."
As well, Laurentian's lawyers say complying with the Speaker's warrants could irreparably harm the university's chances at successfully restructuring.
A response filed by the Speaker of the Legislative Assembly summarizes events that led to the issuing of the Speaker's warrants.
Laurentian's declaration of insolvency in February this year sent shockwaves throughout the province.
Under creditor protection and restructuring, the university has cut more than 100 jobs and dozens of programs. Results of real estate, and operational and governance reviews are pending.
It is not clear when Laurentian's application for a stay of the Speaker's warrant will be heard in court.