Jonathan Coady; Partner, Stewart McKelvey

“Any legal document that I file on behalf of the government will be accurate, detailed, and provable. Now that’s what I demand.”  — Jonathan Coady

[Journal-Pioneer, April 8, 2015]

I don’t get it.  Lawyers are supposed to be all about getting to the truth of a situation, ferreting out all the relevant details and facts, understanding how those facts fit into a narrative to explain what honestly happened, then assessing what honestly happened in light of the relevant law to assist a judge or jury to determine whether there should be legal consequences and/or penalties imposed.

When a civil lawsuit is initiated, the “plaintiff” launching the action files a “Statement of Claim” alleging that a certain named individual or individuals did certain things at certain times causing damages and losses to the plaintiff.  The person or persons who the plaintiff alleges caused damages then files a “Statement of Defence,” which usually accepts some details of the plaintiff’s version of the facts, rejects others, and possibly denies any knowledge of others.

Of course, at this early stage of the legal action, whatever alleged by either the plaintiff or defendant are obviously unproven claims, and are therefore simply referred to as “pleadings”.  Either Party may sincerely believe something they plead is true that isn’t true, which will eventually (likely) be shown to be false as new evidence and details are made available in the legal proceedings.

Nonetheless, there is an expectation that neither the plaintiff or defendant will plead something is true knowing full well that it isn’t true, especially if it will likely be shown to be false by the other Party in the lawsuit once documents are produced, witnesses are examined and cross-examined, etc.

Yet, that is exactly what the lawyer defending the PEI government in the e-gaming lawsuit, Jonathan Coady, has apparently done in the e-gaming civil litigation case launched by Capital Markets Technology (CMT).  “Why would he do such a thing?” you might ask…who knows?

Perhaps Coady believed what his client has been saying from the get-go – that the CMT case had no merit and would never go forward –  and he figured he would never have to answer for the claims he made in his Statement of Defence, or that he would ever be challenged to prove his categorical denial of key facts pleaded by CMT.

I expect both Coady and his provincial government clients were more than a little surprised that CMT somehow managed to rustle up the initial $1,000,000 security costs required to proceed with their action, then after considerable delays (years) were able to pony-up another $300,000 earlier this year.  And now that the clock is ticking on the requirement that the government produce documents, allow examination and cross-examination of witnesses, etc., I expect there’s some nervousness among the defendants as they get closer and closer to having to backup their claims.

Having read the Statements of Claims from CMT – both the first, second and amended  Statement of Claims….as well as the Statement of Defences filed by Coady on behalf of the provincial government – I’m baffled how a lawyer claiming to be committed to uncovering the truth and seeking a fair adjudication process within our judicial system could make the ridiculous claims Coady has made in those documents.

I find it even more bewildering why he would go a step further to state publicly that he will “prove” those claims – claims that deny the government had any knowledge of a whole slew of things they most definitely had knowledge of – according to both the Special E-gaming Report of the Auditor General, and additional documents I have obtained in the course of my own research.

But for the purpose of this article, I’ll deal with just one of those claims to make my point: his statement that the provincial government has no knowledge of the Loyalty Card Program….buckle up and get ready to enter bizarro-land!

In CMT’s original statement of Claim, Paragraph 127 reads as follows:

127.  In October of 2011, the Loyalty/VIP Program was given approval by the Department of Tourism and Culture and representatives of CMT created a survey to determine what local business operators would be looking for in such a program.

Coady responded to that claim in paragraph 32 of his “Statement of Defence” saying government had “no knowledge of the allegations” made in paragraph 127.

I picked this example for this article, since someone’s obviously not telling the truth here.  If a PEI government department official gave approval to CMT/Simplex to develop the so-called Loyalty Card program, and then conducted a survey of local business operators to see what they would want such a program to entail – well, that shouldn’t be too hard to confirm.  And if that happened, then it’s not logically possible that the government could – at one and the same time – develop a Loyalty Card program on the one hand, and have no knowledge of that program on the other, without suffering some kind of  mass amnesia that is.

As it turns out, it wasn’t hard at all to prove who wasn’t telling the truth.

I recently submitted an Access to Information Request related to the Loyalty Card program – several, actually – and although I haven’t received the documents yet, I was informed that a search of Loyalty Card documents involving one government staff person I had reason to believe worked on the project, Tara Jackson, produced a considerable number of records:

Related to your request for:

“All documents related to the Loyalty Card Program – also referred to as the Loyalty Program – (both hard-copy and electronic) that were either “sent” or “received” by Tara Jackson, from October 1, 2011 to January 31, 2012.”

The search has produced 207 pages of records which can be described as follows:

Project Related Correspondence : 62 pages – in general terms discussions with third parties on the requirements of the project;

Program General Info: 5 pages – program overview;

Possible Partners: 16 pages – in general terms first contact with possible with third party program partners;

Program Invite: 20 pages – similar email to multiple third party program partners;

Operator Feedback: 104 pages – feedback from the third parties on the program based on the program invite email.

And then I came across another interesting document made public by CMT – an email from Eddie Francis (who worked on the Loyalty Program initiative for CMT/Simplex) and Melissa MacEachern, then Deputy-Minister of Tourism and Culture who was heading up the initiative  – that unequivocally confirmed there was indeed a PEI government Loyalty Card program involving CMT/Simplex, and that the program wasn’t simply discussed as a possibility, but had been officially declared a “go”:

Then I learned that the provincial government had actually LAUNCHED the program and sent out the following Newsletter to tourism operators across PEI formally inviting them to participate in the program:

And that’s why I’m following this e-gaming court case with such edge-of-my-seat anticipation! I can hardly wait to see how Jonathan Coady – like those amazing illusionists who make elephants and buildings disappear right in front of your eyes, leaving you muttering in disbelief: “how did he do that?…..how did he do that?” – proves his claim that his clients – agents of the PEI government – had no knowledge of the Loyalty Card program.  Yep, I’m getting a front row seat for that one!