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Ontario Auditor General Bonnie Lysyk says she is disappointed her office lost an appeal asking for access to privileged information.
In a decision on Monday, the appeal judges agreed Ontario’s Auditor General Act does not explicitly say the auditor general can have access to privileged information, such as emails, between a lawyer and their client.
“We do think that that is unfortunate,” Lysyk said.
“I mean it’s disappointing. That unfettered access to an auditee’s information, including privileged, is important.”
The appeal echoed an Ontario Superior Court decision that prevented the auditor general’s office from gaining access to privileged information from Laurentian University.
Review of Laurentian
Lysyk conducted a value-for-money review of the insolvent university, to determine how it got into its financial hole.
But even with a Speaker’s warrant that compelled Laurentian to share financial documents with her office, Lysyk said her review was still compromised.
“Information was obtained, but it was what I would call fettered in the sense that what was given was what was chosen to be given to the Speaker, to the legislature and to us,” she said.
“And you know, in terms of electronic emails, for instance, there was no way for us to ensure the completeness of the information that was provided.”
Because she could not get access to all of the documents she requested, Lysyk said her review of Laurentian never reached the level of thoroughness required in an audit.
“So we did the best we could with the information we obtained, but we couldn’t bring it to an audit level of assurance,” she said.
Lysyk added that when her office has had access to privileged information in the past, they have always been careful to protect that information, and use it only to better inform their audits.
Private member’s bill
Nickel Belt MPP France Gélinas, a member of Ontario’s Standing Committee on Public Accounts, said the appeal sets a precedent for other auditees to withhold privileged information from the auditor general’s office.
“It is way bigger than Laurentian,” she said. “It is the way that the Auditor General will be able to do her work going forward.”
Gélinas and Sudbury MPP Jamie West have tabled Bill 19, which would amend the Auditor General Act to explicitly allow access to privileged information.
She added she doesn’t want to “give people false hope” that the government is certain to pass their private member’s bill.
“The government has made a long list of decisions with taxpayers money that they do not want a light to be shone on and they certainly do not want the auditor general to have access to that information,” Gélinas said.
‘A fundamental component of our legal system’
Gilles LeVasseur, a professor of business law at the University of Ottawa, said the appeal decision confirms the tendency for Canada’s courts to protect the right to privileged information.
“It is a fundamental component of our legal system in Canada,” he said.
Without solicitor-client privilege, LeVasseur said people would be afraid to share important information with their legal counsel that can be helpful in court.
He added that granting the auditor general’s office access to privileged information could open the door to others.
“You want to make sure that once you do these types of exceptions, they’re very narrowly drafted so that it doesn’t open the door to everybody to get into that system and try to get information that should not be there,” he said.
LeVasseur said it’s unlikely Bill 19 will become law, because most private member’s bills don’t get that far.
In an email to CBC News, Laurentian University wrote it’s aware of the appeal decision, but said it is focused on the future.
“Our priorities are supporting the university’s current transformation, strategic planning processes, and delivering an excellent experience for all current and future students,” the statement said.
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