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Laurentian University need not hand privileged records over to AG, Ontario court rules

Auditor general Bonnie Lysyk said she plans to appeal the decision, saying Laurentian University's unwillingness to provide ``unfettered access'' to emails is hampering the analysis she launched last year after the Sudbury, Ont., school filed for creditor protection. Facebook

An insolvent university under investigation by Ontario’s auditor general need not hand over privileged information as part of the probe, the province’s superior court ruled Wednesday.

But auditor general Bonnie Lysyk said she plans to appeal the decision, saying Laurentian University’s unwillingness to provide “unfettered access” to emails is hampering the analysis she launched last year after the Sudbury, Ont., school filed for creditor protection.

Lysyk argued that the Auditor General Act mandates that grant recipients such as universities must hand over all records, including those protected by solicitor-client privilege — a reading of the law Superior Justice Geoffrey Morawetz disagreed with.

Read more: Laurentian University withholding documents for financial audit, Ontario auditor general says

“This argument cannot succeed as it requires reading into the statute something that is not expressly stated,” he wrote in his decision.

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Laurentian said the decision provides “welcome clarification” to the law.

“Apart from the narrow issue of privileged information, which the Court has now determined Laurentian is not required to provide, the university has co-operated with the auditor general’s inquiry,” a statement from the school reads.

But Lysyk said that’s not the case.

The school has said its lawyer must check all emails passed along to the auditor general to ensure they contain no privileged information, Lysyk said in a phone interview Wednesday, and is requiring that her office send specific search terms to be vetted rather than sending along all information.

Read more: Laurentian University campus to reopen mid-August as COVID-19 vaccination rates improve

“It’s not just about privileged information,” Lysyk said. “It’s about non-privileged information, too.”

She said that her office always grants agencies the right to review her audits before they’re published, so if the school really wanted to co-operate with the investigation, it would send over the emails and request that any privileged information be removed ahead of publication.

Ultimately, she said, she just wants to be able to do her job.

“It’s never about wanting to get information to negatively impact Laurentian or Sudbury,” she said. “It’s about being able to do an audit that’s unfettered, that allows us to understand the university. Not being able to get emails at a time when everything’s electronic affects us receiving non-privileged information.”

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Laurentian has been under creditor protection for nearly a year. The school’s president, Robert Hache, has said the institution became insolvent after a decade of financial strain from a variety of issues such as the region’s declining population.

At the time, Hache said court proceedings under the federal Companies’ Creditors Arrangement Act would not affect day-to-day operations at the university.

But in April, Laurentian cut more than 60 academic programs, most of them at the undergraduate level, citing “historically low enrolment.”

Meanwhile, the Ontario Confederation of University Faculty Associations said more than 80 faculty members had lost their jobs as a result.

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