PREAMBLE

Judge Gordon Campbell

Capital Markets Technologies’ (CMT’s) lawsuit seeking 50 million in damages from the PEI government was dismissed by PEI Supreme Court Justice Gordon Campbell in a RULING delivered on September 25, 2019.

Left – Right: Honourable Michele M. Murphy, The Honourable David H. Jenkins, Honourable John K. Mitchell

Judge Campbell’s decision was then overturned by the PEI Court of Appeal in a Ruling delivered October, 2020 . 

An  amended Statement of Claim has just been filed in the PEI Supreme Court by CMT’s legal counsel. That new Claim has roughly 2,000 pages of documentation attached as Exhibits, a substantial increase in the volume of materially-relevant documents from what was disclosed by the Defendants in previous filings.

So, you may be wondering:

“If there are hundreds of  new documents being filed, how is it that they were not disclosed and filed by Counsel for the Defendants in the initial legal action?”

Indeed! 

Document disclosure has been an issue in this case from the very outset.

Many of the new documents filed as exhibits with the CMT’s Amended Statement of Claim are documents that have been obtained through Freedom of Information (FOI) requests; many obtained by Paul Maines; others by me, which I have shared with CMT’s legal counsel if I deemed them materially-relevant to their legal action. I have also made many of those documents available to the public as links embedded in e-gaming articles published on my website.

I’ve shared the findings of my research with CMT’s legal counsel in the interest of seeing justice prevail in a serious matter where I sincerely believe a great injustice was done. My work has aimed to expose what I suspected was systematically covered-up, so as to assist in bringing a full disclosure of the evidence into the light, which is essential if we are to see a just outcome to this long-standing matter.

An up-front-full-disclosure from the outset of civil litigation is how our justice system should work, and would have worked if compliance with the Rules of Civil Procedure had been adhered to by the Defendants (in my opinion), especially with respect to the scope of documentary discovery, which is very clear and detailed in those rules: 

CMT’S UPCOMING PEI SUPREME COURT EMERGENCY MOTION HEARING 

The Emergency Motion filed by CMT’s lawyer in the PEI Supreme Court Yesterday (Tuesday, July 27, 2021) is tentatively scheduled to be heard by a PEI Supreme Court Judge on August 6, 2021. 

John Kingman Phillips is a highly skilled barrister, sought out by clients nationwide. He has been practicing in Ontario since 2002, and began his practice 27 years ago in Alberta. John has a wide range of experience in corporate/commercial litigation, including bankruptcy and insolvency matters, class actions, product liability actions, criminal law, professional liability, insurance litigation, employment law and private international law. John has been counsel in many precedent-setting and important cases, including the criminal case of Stinchcombe before the Supreme Court, Merrifield, the RCMP harassment case, and acting for Phil Fontaine and the Assembly of First Nations in the Residential Schools class action – resulting in the largest class action settlement in Canada and the Truth and Reconciliation Commission.

CMT’s lawyer, John Phillips, is one of Canada’s top-ranked trial lawyers, his firm based in Toronto. His Notice of Motion for an Emergency Order is asking  the PEI Supreme Court to immediately “Order” Information Technology Shared Services (ITSS), a department of the PEI Government, to locate and secure materially-relevant documents which have mysteriously gone missing.   

Liberal Finance Minister during the Ghiz                    government (2007-2015), Hon. Wes                                         Sheridan

The Motion relates to the failure of the King government to disclose VERY materially-relevant documents:  an email (and attachment) belonging to the Minister of Finance in the Liberal government of former Premier Robert Ghiz, in 2012, during the time of the CMT/FMT MOU with Innovation PEI, Hon. Wes Sheridan.

MY DECEMBER, 2019 FOI REQUEST:  THE GENESIS OF THIS CMT LEGAL ACTION

In December, 2019, I submitted an Access to Information Request to the Department of Finance requesting documents associated with what I suspected may exist: communications between Finance Minister Wes Sheridan and Chris LeClair and/or Keith Laslop of “Newco”. 

Chris LeClair

Keith Laslop (represented by PolicyInTel owner, Chris LeClair, who was also the Chief-of-Staff to former Liberal Premier Robert Ghiz until October, 2011, at which time he then went to work with McInnes Cooper on the “secret” egaming file, maintaining a close working relationship with Minister Sheridan on the file.

I had the idea there may be a draft business plan or proposal that Minister Sheridan had been provided  during the time of the MOU, but had not disclosed.

I had learned from FOI documents obtained by the PC MLAs while in opposition, as well as additional documents obtained in subsequent FOIs, that Keith Laslop had indeed filed such a plan on the very day (at “noon,” several before the day was over and MOU with CMT was thought to end), so it made sense to me that there would likely have been communications and discussions between LeClair/Laslop and Sheridan – especially given a previous relationship between Wes Sheridan and Keith Laslop in the earlier days of the secret e-gaming working group.

Of course, the disclosure of such a document could potentially be a problem for the PEI government in this lawsuit: the MOU contained legally-binding “exclusivity” and “confidentiality” clauses for that 90-day period, and such a communication and/or “draft proposal” would, if happening during that time, may be determined by the Court to constitute a breach of the the MOU.

If that was to be determined, that would also mean that the Defendant’s breach – and documents providing evidence of such – were hidden from the Plaintiffs and hidden from the Court.

MY 2019 FOI REQUEST, AND CHRIS LECLAIR’S “CHALLENGE” 

In December, 2019, I submitted a FOI request to the Department of Finance asking for the following records:A key email and attachment (the main issue in the current Court Motion by CMT) had been identified in that initial search by the Access people within government as meeting the criteria of my request and being a “Responsive Record” in January 2020, although I didn’t know that at the time, but only learned later.

I was not satisfied with the response letter I had received on my request from then Deputy Minister of Finance, Dan Campbell, so I filed a review with the Information Commissioner.   

A copy of the entire scanned Responsive Record (i.e., all the documents that the Department of Finance found that meeting the criteria of my request) was sent to the Information Commission when I filed my review in January, 2020, which totalled 173 pages.  

The records sent to the Commissioner of particular concern [now the subject of this CMT legal action] – is a Wes Sheridan email dated during the “MOU period”, i.e., the initial three-month MOU CMT/FMT that was signed with Innovation PEI in early July, 2012, along with an attachment to that email.

The King government had reached out to Chris LeClair to inform him that he could challenge the release of records in which he was mentioned, which he did. However, as the Commissioner clarified in her Order, the 20-day period stipulated in the Act for third party interventions on reviews had already ended, and that action by the Department of Finance was not legal.

The fateful outcome of that decision by the King government to contact Chris LeClair was that an entirely groundless intervention was filed by LeClair, giving reason to delay releasing records to me from those 173 pages located in early 2020  – prior to CMT’s Appeal Hearing.  I only  recently received those documents, following the release of the Order on the matter from Commissioner Denise Doiron, which completely dismissed LeClair’s objections to releasing the documents, and ordering the government to release them to me:

https://docs.assembly.pe.ca/download/dms?objectId=b5cb1e77-0492-4f34-b9be-d9512dfe8679&fileName=Order%20No.%20FI-21-002.pdf

One can only wonder what those documents – still not produced, but now shown  to have been intentionally made to ‘go missing’ in at least two departments since January, 2020, notwithstanding a formal request from me for those documents to be produced, as per the rights of Island citizens under provisions of the FOIPP Act.

That delay for more than year should not have been allowed to happen. It represents (to me at least) a clear attempt by the government to thwart justice.

The Commissioner should have the discretion (maybe it exists now, but if it doesn’t in law, it should) to ignore such interventions as made by Chris LeClair, when it is clear that there are absolutely no grounds for the challenge – to take a year to say that is not the way the system should work.   

LeClair didn’t even bother to respond to the Commissioner’s request for follow-up information after he launched the review, yet Ms. Doiron still allowed this vexatious and entirely frivolous intervention on his part to prevent the release of critically-important documents in a timely manner, when their impact was needed in an active case before the courts.

I am still waiting for a response from the Commissioner regarding what she intends to do (if anything) on my behalf to follow up on enforcing her order and compelling the PEI government to COMPLY WITH HER OWN ORDER to provide those documents to me. Surely she would agree that an investigation is urgently required – if they were “deleted,” then for 365 days they can be recovered from a data backup tape at ITSS.

As each day passes without hearing back from the Commissioner, I can’t help but think, “Yikes! If one year ago today someone deleted that key document illegally…if the Commissioner had  only asked ITSS to secure those records yesterday,  I could have that document that may now be irretrievable and lost forever!”

I can’t understand why I’m not hearing back on such an important matter that is so time sensitive – it’s been a week since I asked for assistance.  Ms. Doiron issued an Order to the King government which has not been complied with, so I would hope a remedy to that would be pursued expeditiously!   If our Information and Privacy commissioner’s Orders can be ignored with consequence, we might as well close the OIPC office and  stop wasting  taxpayers dollars maintaining the pretence that we have the means to seek justice on matters relating to record destruction and FOIPP Act violations when we clearly don’t.

SUMMARY

What happened after the Commissioner issued her Order to the Department of Finance for the King government to provide me with all of the withheld documents is a story that will take a couple of articles to explain clearly. But it will be explained clearly, because my plan is to do a three-part mini-series with one episode for each of the three key documents filed in the Supreme Court with this Motion.  I’ll offer only a bit of Introduction and commentary, then let the documents speak for themselves. They are:

1. The Motion Record;
2. Sworn Affidavit of CMT President, Paul Maines;
3. Sworn Affidavit of Dr. Kevin J. Arsenault.

I was happy to have been asked by CMT’s legal counsel if I would be willing to swear an Affidavit in support of this Motion by CMT.  The Guardian, CBC, and Eastern Graphic, the government, and even the opposition MLAs have not recognized the significance of the findings of my investigative research into egaming over the past few years, and despite many previous revelations providing evidence of a systematic cover-up of the truth in the CMT lawsuit, my work has been largely ignored.

Although some of my work – i.e., the Brad Mix investigation that led to a scathing Order against government, then the establishment of the Special Legislative Committee on Records – did receive some attention, but I suspect that my efforts on this particular file will bear far more fruit: afterall, one of the top lawyers in Canada believes it significant enough to file an Emergency Order with the PEI Supreme Court.

It will be interesting to see what happens on August 6th, whether the local media cover this story, or whether the national media cover it.  Will the PEI government’s legal counsel call me to the witness stand to cross examine me on what I filed in my 10-page Affidavit?

Despite many other incidents of missing and/or known-to-be-destroyed government records on the egaming file that I previously identified in my investigation, most notably the destruction of 2 years of Brad Mix’s records that were covered up by the King Government, which also resulted in a scathing Order from former OIPC Commissioner Karen Rose by the way, this government has shockingly NEVER ASKED ITSS to investigate anything.  CMT will be asking the Court to compel that action, and I wish Mr. Maines and his legal counsel, John Phillips, success with their emergency Motion!