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P.E.I. judge to decide whether Dow, Scales, Cutcliffe should be added to e-gaming suit

John W. McDonald, left, legal counsel for Capital Markets Technologies (CMT), and Paul Maines of CMT presented their case in P.E.I. Supreme Court Wednesday on why William Dow, Tracey Cutfliffe and Gary Scales should be added to the $50-million e-gaming lawsuit.
John W. McDonald, left, legal counsel for Capital Markets Technologies (CMT), and Paul Maines of CMT presented their case in P.E.I. Supreme Court Wednesday on why William Dow, Tracey Cutfliffe and Gary Scales should be added to the $50-million e-gaming lawsuit. - Teresa Wright

It is now up to Supreme Court Justice Gordon Campbell to decide how the next chapter will unfold in the ongoing saga of the province’s e-gaming lawsuit.

On Wednesday, lawyers for the numerous defendants in the case presented arguments on a pre-trial motion that aims to add seven new defendants.

The province’s lawyer, Jonathan Coady of Stewart McKelvey, did not contest the motion to add additional names to his roster of defendants, which includes the province of P.E.I. and a long list of officials working for or representing government at the time the province considered the e-gaming and financial services initiatives in 2011-12.

But Gavin Tighe, who is representing three lawyers named in the proposed amended statement of claim, is fighting the attempt to add William Dow of Carr, Stevenson and MacKay, Gary Scales of McInnes Cooper and Tracey Cutfliffe to the claim.

John W. McDonald, the lawyer for Capital Markets Technologies Inc. (CMT) and 7645686 Canada Inc. - which brought this action against the province and the many other defendants, argued the three were public officials at the time and is seeking damages of $50 million for “misfeasance in a public office.”

In court Wednesday, Tighe said Dow and Scales were retained as private lawyers by the province and produced case law that has found lawyers representing governments cannot be sued for their actions. In the case of Cutcliffe, he pointed out she was working as a consultant for both CMT and the province during the time period in question. Lawyers and jointly retained consultants are not public officials, Tighe argued.

Related: E-gaming lawsuit back in P.E.I. court with motion to add more names

He asked Justice Campbell not to allow them to be added to the claim. But if the judge does allow them to be added to the case, Tighe stressed CMT should be required to post $350,000 in security for legal costs.

To date, CMT has had to file $732,098 in security for costs for the original statement of claim filed in March 2017.

McDonald argued Dow, Scales and Cutcliffe were indeed acting on behalf of government in their dealings with CMT, pointing to the large court record and 100 exhibits he has filed to support his claim.

“There’s no question that these people fit the definition of a public official on the torte or misfeasance,” he told the court.

On several occasions he tried to get into the details of the evidence, but Campbell disallowed this, saying the focus had to remain on the motion before the court, which was only dealing with whether or not Dow, Scales and Cutcliffe would be added to the claim.

McDonald further questioned whether government was in any way funding the legal costs of the three lawyers, but Coady said government is only funding his clients’ legal costs.

Campbell said he would attempt to render a decision on the matter as quickly as possible.

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