Capital Markets Technologies (CMT) is scheduled to have an Emergency Motion heard this coming Friday, August 6th.
According to the Notice of Motion (which I posted as a separate article last week):
“THE PLAINTIFFS will make a motion to the Supreme Court of Prince Edward Island on August 6, 2021 by the Case Management Judge, to be heard at the Sir Louis Henry Davies Law Courts, 42 Water Street, Charlottetown, PE, C1A 7N8 by teleconference.”
After a call to the Supreme Court for information on whether I need to attend because I filed an affidavit, it appears to be on the Court Docket as a Case Managed matter scheduled for Friday morning.
The “Case Management Judge” is Justice Gordon Campbell, the judge who dismissed the CMT case in a Ruling dated September 25, 2019.
That decision was subsequently overturned by the PEI Court of Appeal, in a decision dated October 28, 2020.
Judge Campbell’s Nephew is Dan Campbell, who was the Deputy Minister of Finance under PC Minister Darlene Compton until May, 2021.
This is the context and these are the players to understand what has recently transpired with my Freedom of Information (FOI) request which I submitted to the Department of Finance in December, 2019 – just after Judge Campbell’s ruling, and in anticipation of an upcoming Appeal by CMT.
The person responsible for Departmental records is the Deputy Minister, and for all materially-relevant times in this file and story – up to the final chapter, i.e., a letter to me from the new Deputy Minister of Finance, Denise Fleming – the person with whom I have been dealing in the King government on FOI 299 has been Dan Campbell.
The spotlight is now shining on Dan Campbell in a very focused way, very brightly, as a person of interest (POI) in this entire egaming matter. What that light is revealing is disturbing, however for the time being at least it is shining, and with the upcoming CMT Emergency Motion, I suspect the lumens will be increasing sharply, and that we might finally get some real answers from the King government on how this key document was there – then not there – and who is responsible for that little magic trick.
1. DEPUTY MINISTER CAMPBELL HAD “NO AUTHORITY” TO ALLOW REVIEW
If things had happened the way they should have gone with my FOI request, I would have received that email attached “RFP” document in early 2020, around 60 days from submitting it.
The Deputy Minister of Finance, Dan Campbell no doubt realized (or was informed by an APSO worker) that there were no legal provisions in the FOIPP Act upon which to withhold documents any longer, only some provisions to possibly redact some information (i.e., names of third parties, information protected by Cabinet Confidence, etc.).
To have provided me with a copy of all the “responsive records” at that time would have obviously brought to my attention the existence of that critically-important, potentially-lawsuit-ending document, i.e., “the RFP attachment” provided to Wes Sheridan by Chris LeClair/Keith Laslop regarding a financial proposal of some type during the period when the legally-binding “exclusivity” and “confidentiality” clauses were in effect.
If I had received that document and had found it to be materially-relevant to CMT’s legal action (but not disclosed) I would most certainly have provided a copy to CMT’s legal counsel, which may have brought a much more favourable outcome for CMT’s Appeal, possibly even a decision on the case by the Appeal Court if, indeed, they saw in evidence both:
(1) willful refusal to disclose materially-relevant documents, and,
(2) multiple acts of perjury in sworn testimony and cross examination by several people to hide the same information that was not disclosed.
Things didn’t go the way they were supposed to go, however, because the Deputy Minister in January, 2020 was Dan Campbell, and despite the fact that it was NOT LAWFUL FOR HIM TO HAVE DONE SO, Campbell granted Chris LeClair leave to challenge the decision on my FOI Request.
Not only was that not lawful, there were no grounds in law for such a review, the action only resulting in a delay of over a year.
Commissioner Doiron highlighted Dan Campbell’s involvement in the summary of her May 7, 2021 Order:
Summary: An applicant requested access to information, and the responsive records included information of third parties. The Public Body conducted the required third party consultations and decided to release the information to the applicant. A third party, who did not respond to the Public Body’s request for consultation within the requested time, objected to the Public Body’s decision to release their information, and complained that the Public Body should have given them more time to respond to the consultation request. The third party requested a review by the Commissioner, claiming that some of the pages were not “records” and therefore not subject to the Freedom of Information and Protection of Privacy Act (“FOIPP Act”), and that disclosure of the records would be harmful to their business interests pursuant to section 14 of the FOIPP Act.
The Commissioner confirmed that the Public Body (e.g., DM Dan Campbell) did not have authority to give the third party more time to respond to the consultation request than what was specified in the legislation.
The Commissioner also determined that the records in issue were indeed“responsive records,” and subject to the FOIPP Act. She found that the third party did not meet the burden of proof establishing that all three parts of the test set out in section 14 of the FOIPP Act [harm to business interests] were met. The Commissioner confirmed the decision of the Public Body to disclose the information to the applicant.
In an email from the Privacy Commissioner to me dated July 30, 2021, she informed me that she had been in contact with the Manager of APSO, Ms. Kathryn Dickson, and learned the following:
“I spoke to APSO, and requested that they review the records in their possession, to see if the referred to attachment was among the records they were originally provided. You were provided the response from APSO. The Analyst revisited all records (paper and electronic), but was unable to locate the original email or the referenced draft RFP attachment.”
2. DEPUTY MINISTER CAMPBELL’s WITHHOLDING OF 93 PAGES FROM ME – WHY?
Deputy Minister Dan Campbell would have had to release documents that – I believe- will prove a breach of the MOU with CMT/FMT, and decided I was simply not going to get that critically-important document, and MANY others.
If Campbell had followed the law, I would have been given the documents when the time period for the launch of third party review (20 days) had ended:That did not happen. DM Campbell continued to withhold the records and illegally opened up an avenue for Chris LeClair to submit his review to the Commissioner. A review that wasn’t much more than a few musings scratched on a piece of paper, without a single legal precedent cited; and despite all the requests for delays, when the Commissioner insisted she receive a response to her questions, finally gave up and just noted she got none in her ruling! You could not design a better example of “just do it for the delay factor” submission to the Information Commissioner. It should not have been allowed to delay the release of documents to me for over a year.
Similarly, although the Commissioner chastises the Public Body for permitting a review, I don’t understand that at all, given that it is the OIPC that waived the requirement in the ACT (without notifying me) to allow this year-long delay. Why? Why did the Commissioner simply refuse to hear the review?
The way it works with the FOI third-party consultation process is that an applicant – in this case, me, still gets all the documents “released” EXCEPT THOSE documents under review on request of a third party – in this case, Chris LeClair. Dan Campbell explained all that to me in a letter dated March 12, 2020:
There are at least two problems with the information Mr. Dan Campbell put in this letter.
- The letter indicates that a third party filed a review. The date of this letter is March 12, 2020. The third party review was only submitted to the Commission June 22nd, 2020, which I only learned about months later in September after receiving a copy of that submission from Chris LeClair to the Commissioner.
- The March 12, 2020 letter from Campbell indicates that a third party is challenging a series of pages in the total 173 page “Responsive Record,” which he indicates in the paragraph I highlighted, totaling 93 pages – all of which were withheld from me pending the outcome of the third party review with the Commissioner. When I did receive that letter from the third party (Chris LeClair) months later, it indicated that ONLY 10 pages were being challenged, and the key page 11 and RFP attachment were not even on the list. Why did DM Dan Campbell withheld an additional 83 pages from me in March, 2020? And on what legal grounds did he do so? I don’t know the answers to those two questions yet, but the reason does not appear to be the one stated by him in the letter – that the third party was challenging those pages.
In Commissioner Doiron’s Order on Chris LeClair’s review I’m sure he had a drunken monkey type up, she stated:
“II. RECORDS IN ISSUE
 In their submissions, the Third Party only referred to 12 pages out of the larger package of records the Public Body had decided to disclose: pages 12, 13, 15, 16, 17, 18, 48, 50, 147, 152, 153 and 154.” [p.
I suspect that was a deliberate decision for two reasons:
(1) it was a completely ‘vacuous document,’ and the repeated delays requiring more time to prepare were clearly groundless; and,
(2) LeClair seems to have wanted to wait for Denise N. Doiron to take over the reins, since she was appointed the Information and Privacy Commissioner for PEI effective June 23, 2020, taking over the file the very next day, but that’s entirely speculative, but interesting.
2. DAN CAMPBELL – JONATHAN COADY, AND THE “NON-DISCLOSURE OF GAPS IN RECORDS”
Dan Campbell’s involvement in the matter of deleted emails and the non-disclosure of information both to the PEI Supreme Court and FOI applicants first came to my attention during the legislative Hearings with the Special Committee brought into existence by Motion 86, dealing with my FOI request and subsequent review (joined with a number of reviews initiated by Paul Maines) with the Information Commission at the time, Karen Rose, resulting in her Order on Brad Mix’s destroyed Emails.
Commissioner’s Order confirmed that they broke two different legal statutes; the FOIPP Act, and the Records and Archives Act, something noted in a CBC article by CBC reporter Kerry Campbell:
“It was as a result of freedom of information requests that the committee came into being. P.E.I.’s former privacy commissioner Karen Rose issued a scathing report in June, after learning that almost two years worth of emails belonging to Brad Mix, a senior bureaucrat with Innovation PEI, had gone missing. The emails had been subject to multiple freedom of information requests. The province didn’t tell those requesting the emails — and initially did not tell the privacy commissioner — that the records no longer existed. Failing to disclose that, the commissioner concluded, put government in breach of the Freedom of Information and Protection of Privacy Act. She said failure to properly archive the emails was a breach of the Archives and Records Act.” [See: “Committee calls for legal requirement for public servants to preserve records,” December 4, 2020].
Specifically, on October 14, 2020 the Special Committee interviewed Ed Malone with ITSS and he confirmed that Dan Campbell was working with ITSS on Brad Mix’s request to ITSS to attempt to recover missing records.
He testified that Dan Campbell was aware of the situation, as well as the creation of the 15 separate accounts (including Wes Sheridan’s) that Malone had duplicated to create a separate “environment” (as he referred to it in his testimony to the Committee).
That environment was set up as a result of the request for files from the Auditor General (and possibly RCMP) and remains intact under the control and protection of ITSS to this day (or at least to the day John Brennan told the Committee that last Fall).
Because it was Dan Campbell working on this matter at the time – being at that time the Deputy Minister of Economic Growth, Tourism and Culture (EGTC) responsible for Brad Mix’s records (and all EGTC departmental files) very familiar with the file:
Mr. MacEwen: I appreciate that, taking the time to explain that out. Just to clarify a few things, when you say the deputy contacts your COO, just give me the timeframe on this again. This investigation, was this spurred on by the RCMP?
Ed Malone: I don’t have that information. I can give you the timeframes. I’m not sure if it was spurred on by the RCMP or not. I did have a separate request to provide technical information to the executive that would go to the RCMP. I’m unaware whether this was spurred on by that or not. Can you repeat the question again, sorry?
Mr. MacEwen: Just the timeline – basically, I’m trying to figure out what year, who was the deputy, who was the COO at the time, all that kind of information.
Ed Malone: The timeline was April 27th, 2015 to about – the back and forth would probably be around the end of July. Three to four months. The deputy at the time was Mr. Dan Campbell and the COO at the time was Norman MacDonald, possibly there may have been transfer to the current COO now, which is Tracy Wood.
Similarly, it was outside “legal counsel” to the PEI government who was involved with Deputy Minister Campbell in making a decision on whether to instruct ITSS to investigate missing records and attempt to retrieve them, specifically, Jonathan Coady, Q.C., the lead counsel on the CMT lawsuit:
We all know what the decision Dan Campbell and Jonathan Coady made by virtue of the aftermath, and what now is being disclosed: they did not instruct ITSS to do anything, AND remained completely mum on the missing records in MULTIPLE ACCOUNTS of government employees involved with the egaming and FMT financial transaction platform projects.
Nor was that information ever disclosed to CMT’s legal counsel, nor to the Court in the Sworn Affidavit of Documents, nor in the Supplementary Affidavit of Documents, which is a strict Rule of Civil Procedure.
So you can see why the current “Emergency Motion” is of such significance to the CMT lawsuit. It gets better!
3. DAN CAMPBELL’S NON-DISCLOSURE OF INFORMATION IN FOI REQUESTS
Despite the harsh words against the King government in the Brad Mix Order from Karen Rose last year, concerning the legal requirement for government to disclose when there are missing records that would otherwise be part of a “responsive record” to an applicant’s FOI request, Dan Campbell did not disclose that information to me in any of my FOI requests where he was the Deputy Minister making final decisions on the request.
I don’t normally like to offer any speculations in articles of this importance, but I’m going to break that rule in this case.
I honestly think that Dan Campbell dropped the ball by “moving on” just a bit too soon and didn’t realize that I had another step in my investigation….another question I needed answered, and this time, it wasn’t Dan Campbell answering, but his replacement, who simply answered my question honestly.
I don’t believe the Public Body ever intended that the Nov. 26, 2011 email and RFP attachment sent to Wes Sheridan by Chris LeClair would ever be seen by the Commissioner, me as the applicant, or anyone else for that matter.
Had Dan Campbell not decided to move from Finance to become Clerk of Executive Council in May, 2021, with Denise Fleming taking over and signing that letter to me on July 15, I doubt very much there would an emergency order in play and what, I’m hoping, will soon be an investigation into the missing records by the Information Commissioner that I will most likely request, depending on what transpires in the PEI Supreme Court on this matter in the days ahead.
NOTE: I will be publishing articles that contain both the Affidavit of Paul Maines (next article) and my much longer one, which details chronologically and meticulously the facts in this matter as I know them.