In the latest document filed by Laurentian University with the courts, the university’s lawyer explains that the Ontario Superior Court of Justice has jurisdiction to grant the suspension of a mandate of the president issued by the legislature of the Ontario v LU last month.
Laurentian asked the courts to stay the president’s term just before Christmas. A date for a hearing on the matter has not yet been set.
The president’s warrant directs Laurentian president Robert Haché and Claude Lacroix, who is now the university’s former chairman of the board of governors, to release a long list of documents, including confidential documents, here on February 1st.
If the documents are not delivered, Haché and Lacroix could be punished, including imprisonment.
Laurentian University, which declared insolvency more than 11 months ago, continues to undergo restructuring under the Companies’ Creditors Arrangement Act (or CCAA for short).
Laurentian’s lawyers argue that the stay should be granted, as they do not believe that the legislature has the right to compel LU to produce certain documents.
A brief filed by Laurentian says the president’s warrant was issued pursuant to the “constitutionally protected parliamentary privileges of the legislature, including the right to initiate inquiries and compel the production of documents.”
The privilege of the legislature is “an exemption from the common law,” says the Laurentian brief.
However, the courts have the right to determine whether parliamentary privilege exists in this case, argues the university lawyer.
“The courts determine whether there is a category of parliamentary privilege and delimit its scope; actions under the lien are not subject to judicial review,” the document states.
“If the privilege claimed does not cover the president’s terms, ordinary law will apply and the court will award relief.”
Laurentian said the courts also have jurisdiction to grant an “interlocutory suspension,” meaning a temporary or provisional suspension (in this case, of the President’s mandate).
“Since the Court has jurisdiction to determine the scope of parliamentary privilege and whether the Speaker’s warrants fall within that scope, it must also have jurisdiction to grant interlocutory remedies to preserve the rights of the parties pending its decision,” said Laurentian’s memoir.
The court document submitted by the university indicates that the matter meets the criteria for suspension.
A preliminary assessment “must be made of the merits of the case to ensure there is a serious issue to be tried” (Laurentian said there were several serious issues surrounding the case – you can read their arguments in this previous Sudbury.com story).
It must also be “determined whether the applicant would suffer irreparable harm if the application were refused”.
“If the documents were disclosed…the harm to Laurentian would be irreparable and great,” Laurentian’s brief states.
“Disclosure of Laurentian’s privileged communications would betray the trust it places in its attorneys and undermine their ongoing relationship.
Finally, “it is necessary to assess which of the parties would suffer the greatest prejudice as a result of the granting or refusal of the appeal pending a decision on the merits”.
Earlier this week, Nickel Belt MPP France Gélinas said she was “dismayed” that Laurentian chose to challenge the president’s term in court.
Gélinas said there is no doubt that Laurentian “has no choice but to comply” with the Speaker’s mandate – only the third issued in the history of the Ontario Legislative Assembly -” and we will win, and they will lose”.
“It’s the full power of a legislature against a tiny little transfer payment agency called ‘a university,'” she said. “Like this is David and Goliath, except David is not going to win, because Goliath is going to win.”
Laurentian’s latest application to the courts stems from a dispute between Laurentian and the Auditor General of Ontario, Bonnie Lysyk.
Laurentian refuses to provide Lysyk with privileged documents as it conducts a value-for-money audit of the university.
She was tasked with the value-for-money audit last spring by the Standing Committee on Public Accounts of the Legislative Assembly of Ontario (of which Gélinas is a member) following the insolvency of Laurentian.
The case was heard in court in December and Chief Justice Geoffrey Morawetz reserved his decision, which as of this writing has yet to be released.
The Ontario Legislative Assembly then issued a rare Speaker’s Warrant last month at the request of the Standing Committee on Public Accounts. As indicated above, Laurentian must publish the list of requested documents by February 1st.
Laurentian had offered to release certain privileged documents to the Legislative Assembly, but not all that had been requested, a situation that the members of the Public Accounts Committee found unacceptable.