I watched the Special Committee on Record Retention‘s online stream of this morning’s meeting. Wow!  John Brennan and Ed Malone with Information Technology Shared Services (ITSS) were on deck.

This was John Brennan’s second time before the Committee, having appeared with Scott Cudmore on September 16, 2020 to provide a briefing on the technical processes involved with record deletion.

At that time, PC MLA Cory Deagle had asked Mr. Cudmore whether the RCMP had interviewed him about missing records. Mr. Cudmore indicated that the director at that time was Ed Malone. The Committee later moved to bring Mr. Malone before the Committee, and his appearance happened today:

Chair (Michele Beaton): Next would be review of our scheduling. I’ll
open the floor, if anybody has any names that they would like to put forward for witnesses that they would like to see. Go ahead, Sid.
Mr. MacEwen: Thank you, Chair. When Cory was asking questions, they had
talked about the former director of IT who would have been interviewed by the RCMP. Do you have the name there?
Chair: I do. It’s Ed Malone.
Mr. MacEwen: I would move that we invite him in.
Chair: Any discussion? No? Everybody okay with that? All in favour, I guess, is the words I’m looking for. Okay, thank you. So we’ll call Ed Malone

Mr. Malone gave a very informative presentation about what is happening now with significant upgrades as PEI moves it’s entire data management system to Microsoft’s Office 365. That was the first 20 minutes or so, then the Chair, Green MLA Michele Beaton, zeroed in on exactly why Mr. Malone had been called before the Committee – to get more information on Brad Mix’s missing records.

The questions from Committee members were targeted and the revelations were explosive!

We now know that Brad Mix DID indeed ask ITSS to “reconstruct” his two years of missing records – or at least a portion of those records. That could have been achieved by searching out and compiling the emails that Mix had sent to other government employees with whom he had worked on egaming, and the emails those other government employees had sent to him.

Malone went on to explain that because Mix’s request involved other people’s records, he needed to get direction from Risk Management and Legal Counsel.

Thanks to the determination of PC MLA Sidney MacEwan who kept pushing for a name, we now know that the person who provided that legal counsel was none other than the PEI Government’s lead external counsel on the CMT lawsuit at the very same time – Jonathan Coady!

What happened to Mix’s request to have his missing emails located? The members of the Special Committee might want to ask Brad Mix that question when he appears before the Committee on October 28th:

Mr. Malone explained that authorization to search and provide copies of the records to Mix needed to come from the Deputy Minister, the person responsible for records in the Department.  He added that no such authorization or request ever came to ITSS to search for those Brad Mix egaming records.

This all happened very early in 2015, the same time the CMT lawsuit was launched and the lawyers on both sides were sifting through records, each preparing an Affidavit of Documents for the law suit.

Jonathan Coady produced no court records for Brad Mix from 2010 to 2012, which was the entire egaming tenure, the very same period of time for which all his records were deleted.

However, CMT did produce emails from Brad Mix from that time period, which has been a point of contention from the outset of the lawsuit. Coady has often been asked about document disclosure from Brad Mix by CMT’s legal counsel – or to be more precise, asked about the failure to produce documents from Brad Mix.  Coady’s response was always the same – all relevant documents were produced and all other required information was provided, as per the official court rules of disclosure in civil procedure.

The significance of learning  that ITSS never received a request to produce those Brad Mix emails from Ed Malone today cannot be overstated….listen carefully!

Why didn’t Jonathan Coady pursue Brad Mix’s request to locate his missing records? I don’t know, but it’s a good question I’m sure someone will be asking him at some point.

Coady clearly had a legal obligation as lead counsel on the CMT lawsuit to ensure that all relevant documents were disclosed to CMT’s lawyer and filed in court. Did Coady bring this matter up with the Deputy Minister of Mix’s department at the time?

The Deputy Minister at the time was Neil Stewart – another person named as a Defendant in the CMT lawsuit.  Stewart is also the same person who received the infamous “management letter” and related documents from the former Auditor General on Billy Dow’s conflict of interest and insider trading. The King government won’t release those documents to me so I have a review with the Information and Privacy Commissioner currently underway.

Jonathan Coady is a Partner with Stewart McKelvey Law Firm. The following is taken from the biography on the Law Firm’s website: ACCOLADES: Best Lawyers 2021 Administrative and Public Law “Lawyer of the Year” in Charlottetown Queen’s Counsel, 2019 Best Lawyers 2020 Corporate and Commercial Litigation “Lawyer of the Year” in Charlottetown Best Lawyers: Appellate Practice, 2020 – 2021 Best Lawyers: Administrative and Public Law, 2019 – 2021 Best Lawyers: Corporate and Commercial Litigation, 2019 – 2021

Did Jonathan Coady talk to Neil Stewart about Mix’s request to reconstruct his records…emails that the former Information and Privacy Commissioner confirmed were “deliberately deleted” for that entire, critical 2-year egaming period? What did he do with the information provided to him by Ed Malone about Brad Mix’s request to search out and get copies of those records in other government employee email archives?

If Coady did talk to Stewart, and one would certainly expect him to have done that, then why didn’t Stewart follow through on Mix’s request and authorize ITSS to locate and then produce those records for Mix?

More to the point – why didn’t Jonathan Coady insist that the records be produced, given his legal obligation to disclose them to the court?

There was a FOIPP request for Brad Mix egaming records from this same 2-year time period that had been submitted by Bruce MacDonald in early 2014 while MacDonald  was engaged in an investigation for CMT. The Deputy Minister at the time – Neil Stewart – sent Mr. MacDonald the following response letter on June 2, 2014:

Another important revelation by Ed Malone today in addition to what he said about Brad Mix’s missing records and his involvement, was his mentioning that there were also “gaps” and missing records for that same 2 year e-gaming period in several of those other employee’s email archives.  By my count, that’s now 8 key people who were involved in egaming who have missing or deliberately deleted government records we know about so far. That’s what fixers and cleaners refer to as a “scorched earth” policy.

It is the PEI Government’s “Risk Management Division” that actually verified (with lead external counsel, Jonathan Coady’s assistance) that Government was providing a complete disclosure in its Affidavit of Documents filed with the Court in the CMT lawsuit.

That document must – by law –  indicate all potentially relevant documents have been reviewed and that all relevant documents in the possession of the government have been disclosed, as well as (2) information about potentially-relevant records that were once in the possession of government but are no longer.

Ed Malone indicated that it was Linus Kelly at the Risk Management Division who he had spoken with, who has since retired. I called Mr. Kelly early this afternoon, and actually got him on the phone, but unfortunately after I explained that he had been mentioned by Mr. Malone as the person who he had worked with on the Brad Mix missing records file, and that I wanted to know if he had spoken with anyone else within the Division about the matter, such as Marie Kemp, Supervisor of Risk Management and Insurance, all I could get out of him was: “I can’t talk to you about that.”  Well, I suppose it was worth a try. When I checked the 2014-15 Annual Report from the Risk Management Division, I realized Mr. Kelly wasn’t a casual employee, he ran the Division:

Whether Ms. Kemp was informed about Brad Mix’s missing records by Jonathan Coady remains an unanswered question. Whether Ms. Kemp was informed by Linus Kelly or someone else about Brad Mix’s missing records remains another unanswered question. What has been answered today by the testimony of Mr. Malone, however, is that the Affidavit of Documents on behalf of the PEI Government in the CMT lawsuit signed by Marie Kemp failed to disclose information about the 2 years of missing Brad Mix records, and information about missing records of a number of other government employees or ministers who are also likely defendants, such as former Minister of Finance, Wes Sheridan, was not disclosed as well.

Are We Finally Going to Get Some Answers?

The Special Committee  on Records decided to ask ITSS to do what Mix had asked ITSS to do in early 2015, but then Deputy Minister at the time – Neil Stewart – never did – e.g., reconstruct whatever emails could be located, either sent or received by Brad Mix from other government employees.

When asked how many people Mix had indicated he wanted inboxes searched back in early 2015, Mr. Malone indicated 6 or 7.  He believed 2 or 3 of those sets of emails (sent and received) were intact, but also indicated that there were also missing records – or ‘gaps’ as he put it – with some of the other government employees. He didn’t want to name those people in case he named someone by mistake, but indicated he would provide the Committee with a complete list of those names by the end of this week.

The Committee received precise instructions from Brennan and Malone on how to get the authorization to “reconstruct” Brad Mix’s emails and are moving expeditiously to do so. Given that Paul Maines is seeking a term of imprisionment for the Deputy Minister, Erin McGrath-Gaudet, for her part in denying him records  and breaching a Supreme Court Order, I wonder if the Committee will face any obstacles obtaining that authorization?

Meanwhile, Melissa MacEachern (now Melissa James) has been scheduled to appear in early November, but Chris LeClair has apparently not responded to the request that he appear, although the Clerk indicated the planned meeting will be going ahead and “a letter has gone out”.  Might that have been a Subpoena?

Several years after Coady was asked about reconstructing Brad Mixes emails and apparently did nothing – ITSS would have been involved, and Mr. Malone indicated that no request had come from then Deputy Minister Neil Stewart.

Despite knowledge that Brad Mix’s emails could be located – or at least those that were sent back and forth with other government employees – Coady not only failed to ensure those emails were located and reviewed, but when CMT’s legal counsel, John MacDonald, pressed Mix about whether he had disclosed all relevant documents, Coady jumped in to settle the matter:

Brad Mix Cross Examination
Page 36, Para 115

COADY: I have produced all relevant e-mails…

Now we know for sure that was a bold-faced lie. What is likely to be the fallout for Stewart McKelvey law firm? Huge.

Let’s Sum Up

The egaming lawsuit has been going on since 2015.  Sworn Affidavits and Cross examinations were filed with the Supreme Court on numerous occasions. The cost to Mr. Maines has been substantial. With a decision expected from the Appeal Court imminently, consider where we are with this entire mess.

The key document that a Government files in a civil litigation, both the Plaintiff advancing the case and the Defendant, is called an Affidavit of Documents.  That document must be signed off on by someone with the Government’s Risk Management Division, who swears that all documents have been reviewed and disclosed in accordance with the law.
Marie Kemp swore that only Melissa MacEachern, Chris LeClair and Rory Beck once had documents in their possession but no longer have them, information that had already been exposed and made public by the Auditor General.  NO MENTION was made of any other missing records, despite Kemp swearing the following:
This sworn document was not only witnessed by Jonathan Coady but also certified by Jonathon Coady.  Read carefully what that certification says:
The Information and Privacy Commissioner’s Order exposed that this affidavit was not accurate…

Today’s revelation proves it was also fraudulent…and that Jonathan Coady deliberately misled the Court.

The King Government chose to continue the CMT lawsuit with Stewart McKelvey as Government’s counsel. That was a decision that would never have been made in any other jurisdiction with a change in power from liberal to Tory, for obvious reasons, but especially in a situation such as egaming where the Tories repeatedly and quite successfully attacked the Liberal government for the egaming scandal and coverup and the bogus defence Stewart McKelvey were advancing on Government’s behalf.

Did Premier King and his Cabinet know of these unethical and illegal shenanigans?  Given today’s revelations, is there any chance Premier King will “unretain” Stewart McKelvey, something he should have done when he first came into power?