The federal government and Auditor General Michael Ferguson are embroiled in a “major legal crisis” over the auditor’s access to cabinet confidences, said an NDP MP.

The House of Commons public accounts committee went in-camera Tuesday during an appearance by Ferguson and top officials from Finance Canada and Environment Canada to discuss fossil fuel subsidies.

Ferguson has been trying to get his hands on cabinet documents that he said he needs to determine the scope of Canada’s subsidies for the oil, gas and coal industries. After Ferguson revealed he couldn’t get the documents in May, Finance Minister Bill Morneau announced that an order-in-council had been passed by cabinet that would give the auditor access to those documents.

That fight is still ongoing and Ferguson is preparing a message to Parliament — a last-resort option to try to get the government to act, said NDP MP David Christopherson, who sits on the public accounts committee.

“We went in camera – not to do the hearing, but to deal with the legality of the government saying, ‘We’re not going to give you that information,’ and the auditor general saying, ‘My legislation says I’m to have access to it and I’ve gone through every step in the procedure and now I’m left with my last and most drastic step, which is to send a message to Parliament,’” Christopherson said.

These types of messages to Parliament have happened before, but it’s rare that disagreements on them are this difficult, he said.

“He asks for information and he usually gets it,” said Christopherson. “And if he doesn’t, then he starts interacting with the inner management to find out what the problem is. Most cases they work it out. But in this case it was not able to be resolved to the auditor general’s satisfaction and there was no steps, no hoops, no procedures left for him — he’s run out of runway.

“The only thing left to do then, under his act, is to report to Parliament that he’s seeking certain information that he believes he is entitled to and the government is refusing to give it and that matter is now in the hands of Parliament and we’re the committee, of course, seized with the immediate issue.”

The committee is expected to deal with the matter again soon but nothing has been scheduled, Christopherson said.

Ferguson also is in talks about the impasse with the Privy Council Office (PCO), which serves the prime minister and cabinet, says a statement Ferguson made to the committee published on his website.

The auditor general’s office declined to offer comment on the committee hearing, citing the decision to go in camera. However, in an earlier email to iPolitics over the decision to close the committee to the public, Ferguson said he prefers transparency.

“Ideally, all of our audits would be the subject of public hearings. We anticipate having the opportunity to discuss the report with the Public Accounts Committee in the near future,” Ferguson said in an email.

The order-in-order was passed just before Ferguson released his spring reports, which included an examination of Canada’s fossil fuel subsidies.

The former Conservative government first promised to phase-out the subsidies in 2009, a pledge the Liberals have since supported.

However, Ferguson said in his spring report that Finance Canada and Environment Canada did not define the promise, did not include all tax measures in reforms and did not have plans to fulfill the promise.

As well, Finance Canada refused to provide all of the analyses Ferguson said he needed to understand what was considered a subsidy, the report said.

Morneau, the finance minister, said in May the order-in-council would provide Ferguson needed.

“An order in council has been issued to provide the auditor general, when requested, with access to confidential information that is included in budget preparation documents that have been developed since the beginning of the Government’s mandate, specifically November 4, 2015,” Morneau said in a statement back then.

“This is an unprecedented release of information to the (auditor general) and will assist him undertake his work to find areas where the Government can improve its delivery of services and programs for Canadians.”

The order-in-council allows Ferguson access to “explanations, analyses of problems or policy options contained in or prepared by officials in relation to a record the purpose of which is to brief a Minister of the Crown on budgetary matters that are, or proposed to be, the subject of communications or discussions between Ministers of the Crown relating to the making of government decisions or the formulation of government policy, but not information revealing views, opinions, advice, recommendations or proposals of, or presented to, a Minister.”

But in practice, the information either came too slow or not at all, according to Ferguson.

In a statement published on the auditor general’s website, Ferguson said Finance Canada gave the office 139 pages of budget briefing notes in June.

“However, it was only this past Friday that Finance Canada gave us the other information that we asked for, including unredacted strategic environmental assessments and other documents that contain explanations, analyses of problems, or policy options,” said Ferguson.

Even after these deliveries, Ferguson still doesn’t have all the documents he’s looking for.

“In May, I indicated that we were working with the Privy Council Office to try to find a mutually acceptable arrangement to ensure that we get access to the information that we need to conduct our audits,” Ferguson said. “While we have had a number of discussions with the Privy Council Office, a solution has not been reached.”

The PCO said late Friday it was seeking to keep cabinet confidentiality intact.

“In 2017 an OIC was issued to give the AG enhanced access to a broader range of cabinet confidences,” wrote PCO spokesperson Paul Duchesne in an email.

“That said, cabinet confidentiality is a constitutional convention that is essential to our system of responsible government and the need for confidence still exists on some matters,” he wrote.

Morneau’s office said the federal government is trying to reach a target of phasing-out “inefficient fossil fuel subsidies” by 2025.

“We are on track to meet that target,” wrote Morneau spokesperson Dan Lauzon in an email Saturday.

Finance Canada “has worked with the Auditor General to provide all relevant confidential analysis that has been created since the beginning of our mandate related to tax measures that might fall within the scope of the G20 commitment, and we continue to work with Environment and Climate Change Canada in implementing our plan,” Lauzon wrote.

Contact James Munson at [email protected] or on Twitter at @james_munson.