The COVID-delayed Contempt Motion that Paul Maines filed against Deputy Minister McGrath-Gaudet and the Department of Economic Growth, Tourism and Culture in the PEI Supreme Court back in January, 2020 took another turn last month: the Motion was once again adjourned after an intervention by John Philips, legal counsel for Maines. Philips was appearing before Judge Cann for the first time on the case.
Philips informed the Court he intended to amend the Motion to clarify more precisely that Erin McGrath-Gaudet would be the target of the action separate from the Department of Economic Growth, Tourism and Culture, in which Ms. McGrath-Gaudet was also representing the PEI Government in the FOIPP requests from Maines as the official “head” of the Department, lying at the heart of the Motion.
Philips stressed that he wanted to ensure that Ms. McGrath-Gaudet fully understood that her legal interests would be quite separate and potentially in conflict with the interests of the PEI Government. He strongly recommended she get her own legal counsel.
A CBC article “Man suing province for millions seeks to have P.E.I. deputy minister named in contempt action” captured the gravity of that moment:
“After a brief court hearing Tuesday, the case was adjourned at the government’s request, after Maines’ lawyer John Phillips clarified his client wants McGrath-Gaudet found personally in contempt of court, something that wasn’t articulated in Maines’ initial filings in January.”
I was in the courtroom when all that transpired. Philips said he wanted a ‘clean’ decision – which I took to mean he wants to make sure Ms. McGrath-Gaudet is fully aware of the serious situation she is facing in allegedly, intentionally, breaching a PEI Supreme Court Order. Philips was bending over backwards to ensure she was afforded all the information and opportunity she needed to protect her legal rights and interests on a go-forward basis. He didn’t want some technical or procedural misstep to frig things up. Very smart.
Judge Cann nonetheless seemed keen to proceed with at least the cross-examination of Ms. McGrath-Gaudet. But at that juncture, Ms. McGrath-Gaudet’s lawyer, Mitchell O’Shea, requested a 10-minute recess so he could further explain to his client that Maines and Philips would be seeking a prison term for her involvement so she should have her own legal representation.
For those of you who may be new to this unprecedented Contempt Motion against the PEI Government, Maines filed his own initial paperwork with the Court, but now has a heavy-weight lawyer John Kingman Philips with his sights set on both McGrath-Gaudet and the PEI Government (via the Department of EGTC).
Philips is ranked as a top 50 trial lawyer in Canada. Not someone I’d want trying to convince a judge to put me in jail!
After that 10 minute recess, McGrath-Gaudet returned to the court looking somewhere between really confused to being in a state of disbelief or shock. Mitchell informed the judge that his client wanted an adjournment to obtain independent counsel. Philips had no objection. The adjournment was granted.
1. What will Ms. McGrath-Gaudet’s Defence be Now?
I’d say Ms. McGrath-Gaudet couldn’t do worse than the in-house Government Lawyer, Mitchell O’Shea, whose entire legal defence amounted to a completely unsubstantiated claim (and by unsubstantiated I mean lacking that thing judges really love…”evidence”). The entire tone seemed to smack of a lack of respect for the seriousness of breaching a PEI Supreme Court Order as if it wasn’t really that big of a deal:
“In a brief court appearance in February, O’Shea said the province cannot be found in contempt because “there was no ill intent” on its part in missing the deadline to provide the documents, attributing the delays to unexpected absences and staffing issues.”
There’s a ho-hum legal argument for you. I’d certainly want something a tad tougher with more legal teeth for a charge that could put me in prison!
There are bigger problems with this legal argument for Ms McGrath-Gaudet, not least of which is that it doesn’t match what was confirmed in the June 9, 2020 Order from former Privacy Commissioner, Karen Rose. That Order followed a year and 1/2 long investigation of McGrath-Gaudet’s involvement in the Brad Mix case (that Order was for my initial review with 4 subsequent FOIPPs from Paul Maines).
This is what Ms. Rose said about Ms. McGrath-Gaudet’s role in the matter as the Head of EGTC:
 I find that the EGTC did not fulfill their duty to be open, accurate and complete when responding to the Applicants, by failing to explain why very few responsive records were found. I further find that the EGTC deliberately withheld this important information from the Applicants, which is a violation of their section 8 duty. I would have expected the gap in the named employee’s emails to be one of the first facts to be communicated to the Applicants, following the EGTC’s realization that their search could not be properly completed. Instead, the EGTC provided the few records they had to the Applicants, and remained silent about the possibility that there could have been more, but they had not been retained.
Deciding to ‘remain silent’ and maintain the pretense that records existed while knowing they did not sounds pretty darn ‘intentional’ to me. Or again…
 I am at a loss to explain the motivation of the EGTC in withholding such key
information from the Applicants. I have overseen many access reviews since November, 2002, and have observed that public bodies are forthright in their dealings with applicants, even when the information the public body must provide is embarrassing, or does not place the public body or a given employee in the best light. In such circumstances, public bodies prioritize their duty to respond openly, accurately and completely. Why the EGTC chose to keep the fact of missing emails from the Applicants remains a mystery, even after multiple submissions to the Commissioner by the EGTC in these reviews.
Motivation and Intention……they’re synonyms aren’t they?
I have first-hand knowledge Deputy Minister McGrath-Gaudet’s decisions and actions on this file; being Applicant #1 in this Order on Brad Mix’s records. I have copies of all the letters Ms. McGrath-Gaudet signed on the file. So now that she can realize that the defence Mr. O’Shea was providing could be characterized as a “lie down right here while we drive a bus over you” defence, the question remains: “What will Ms. McGrath-Gaudet’s Defence be now?”
Meanwhile, Back at the Court Room….
Once Ms. McGrath discovered that it would be John Philips coming after her in Court, and with just a few weeks to separate her interests from the government’s interests and find independent Counsel, what did she do?
It appears she asked government for the name of a good lawyer.
It appears they obliged.
2. Independent Legal Counsel? Really? Are You Being Serious?
A recent Supreme Court filing shows that Ms. McGrath Gaudet obtained Halifax Lawyer Bruce Outhouse, the SAME LAWYER my sources tell me represented Spencer Campbell and the PEI Government in the Whistle-blower case in which John Philips was also representing the Plaintiffs (Susan Holmes; Cora Nicholson; and Svetlana Tenenko) and won an undisclosed out-of-court settlement from the King Government for his clients.
“The lawsuit names former premier Robert Ghiz, former innovation minister Allan Campbell, former deputy minister of economic development Michael Mayne, and former Liberal party spokesman Spencer Campbell as defendants…..John Kingman Phillips, a Toronto-based lawyer who was one of the lawyers who represented Omar Khadr in civil litigation, said his clients were badly mistreated. “The privacy violation is beyond egregious. … it demands a response,” he said in an interview.”
What kind of sense does it make for Ms. McGrath-Gaudet to get the same lawyer that defended the actions of backroom liberal lawyer Spencer Campbell and the elected officials involved in the intentional breach of the privacy rights of the three whistle-blowers? A lawyer obviously close to the same people Mr. Philips suggested Ms. McGrath-Gaudet distance herself from in pursuit of self-preservation.
Those were the guys who orchestrated and executed a very deliberate attempt to harm three public servants – three women close to the PNP goings on – trying to raise concerns about corruption within government with the provincial nominee program (PNP) scandal, and took a big risk in doing so.
Somewhat ironically – according to Hon. Steven Myers (when he was a member of the Official Opposition) – it was largely this incident and Campbell’s actions that gave impetus to the effort to pass Whistle-blower legislation (which has happened, but for reasons unclear, like the “Water Act”, Government has yet to proclaim it into law):
Mr. Myers: Thank you, Chair. So, is Spencer Campbell legal counsel for
government at all?
Premier MacLauchlan: There are quite a few people who do outside work for
government and from time to time, I don’t have all the details, but from time to time I believe that would include Spencer Campbell.
Mr. Myers: Chair?
Chair: The hon. Member from Georgetown-St. Peters.
Mr. Myers: You do know that Spencer Campbell is the reason you had to bring this bill on the floor – that Spencer Campbell that was floating emails around…?
And don’t forget the ‘big reveal’ made by MLA Bush Dumville about how Spencer Campbell – a Senior Partner of Stewart McKelvey – was ‘coaching’ the liberal members on the Public Accounts Standing Commitee looking into egaming. After crossing the floor to become an Independent MLA, bush “outed” an “insider” by explaining how Premier MacLauchlan’s Chief of Staff, Robert Vessey was telling the Liberal MLAs on Public Accounts looking into egaming that “Wade wanted egaming put behind him”.
Those first fiery questions to the Premier may have signalled the beginning of the end for Dumville’s political career, but his going out like a falling star in a dark Liberal world of secrecy at the time was a beautiful thing – a final blaze of truthful glory before burning out!
Seriously Erin. Do you really think having Spencer’s lawyer representing your interests in this matter is a good idea?
Ms. McGrath-Gaudet would be wise to voluntarily come completely clean and tell the ‘whole truth and nothing but the truth’ openly and honestly at the soon-to-be scheduled Motion Hearing. We want to see some real eagerness to explain things in a down-to-earth, honest telling that makes sense, is sincere and believable.
That story should begin when she began her role as Deputy Minister of EGTC and there was ‘overlap’ on those egaming document FOIPP files with David Keedwell (who still in the King Government as DM under Hon. Ernie Hudson), then DM of EGTC. Those files were that were handed to her by Keedwell (who lied in an almost perfect way for months to me and the former Privacy and Information Commissioner, Karen Rose).
She should start there: explain exactly what Keedwell tell you about his cover-up…we want her to tell us: “…did he hide that from you or ask you to carry on?” That’s what we all want to know, so when your moment to shine comes, don’t be shy or coy with the facts!
We really want to know who interfered with FOIPP requests to withhold key e-gaming government records? I fully expect truthful responses will disclose interference in FOIPP requests by lawyers from a certain outside law firm – Stewart McKelvey – which is of course outside legal counsel representing the PEI Government in the CMT law suit. If that was to prove to be the case, it would be the most egregious of violations possible, offering a choice ‘example’ of government corruption in a Wikipedia article on the subject.
I would also expect that if Ms. McGrath-Gaudet talks freely about her role in hiding the destruction of egaming government documents her words will smoke out the involvement of a few named defendants in the CMT law suit and/or members of the Insider Club.
Good luck Erin, and I mean that sincerely. Do the right thing. No matter what your quasi-independent lawyer tells you to say or not say, just tell the truth. Do that and you’ll be fine.
The truth sometimes brings casualties – some who may be you colleagues and acquaintances. Just remember that your moral obligation is not to protect your colleagues and acquaintances, but to tell the truth...it’ll be your legal obligation as well.