CHARLOTTETOWN, P.E.I. — The company behind a dismissed $150 million lawsuit related to the province’s e-gaming saga wants another chance at having its day in court.
On Friday, Capital Markets Technology Inc. filed an appeal of a September 25 decision by Justice Gordon Campbell, which threw out its amended statement of claim in its entirety.
This was the second time Campbell had dismissed a statement of claim from CMT.
Campbell had dismissed a lawsuit filed by CMT in 2016.
The amended statement of claim, filed in 2018, sought a total of $150 million from the province and from the 14 named defendants, including former premier Robert Ghiz. CMT alleged the province had violated the terms of a Memorandum of Understanding signed between it and Innovation P.E.I. The company also alleged officials, including Ghiz, had hidden evidence of this and other actions through the deletion of staff e-mail accounts.
Campbell’s dismissal of the lawsuit was issued before it could proceed to trial. Campbell had argued the threshold for demonstrating grounds of conviction was not met and, in a 172-page decision, argued there were “no genuine issues requiring a trial.”
Campbell took particular issue with the main affidavit, which had been supplied by CMT president Paul Maines.
Campbell claimed Maines had only “second hand information” of meetings involving government officials. Campbell further chastised the counsel for CMT for not providing similar affidavits from Gary Jessop or Philip Walsh, two of Maines’ business partners.
In its appeal, CMT argues Campbell did not take into account all the relevant evidence and that he “failed to incorporate just and fair principles to assure access to justice for all appellants.”
CMT argues Campbell had not required counsel representing the province to disclose all relevant documents and suggests Campbell should have removed Stewart McKelvey lawyer Jonathan Coady, who represented the provincial government, from the file.
The notice of appeal argues CMT had obtained four consent orders on October 9th, after Campbell filed his decision, relating to freedom of information requests of e-mails of government officials named in the lawsuit.
Maines has claimed the province continues to impede freedom of information requests related to current or former officials named in the lawsuit.
“Justice Campbell’s hearing of the summary judgement motions was premature knowing that it was the PEI government’s direct actions and non-disclosure of documents that necessitated the FOIP request,” reads the notice of appeal.
The office of the information and privacy commissioner is currently awaiting response from the province with respect to four different FOIPP requests related to e-mails of public officials named in the lawsuit.
“Justice Campbell failed to weigh the evidence, assess credibility and draw inferences and therefore assess whether the appellants have a ‘good chance of success,’” reads the notice of appeal.
The notice of appeal also took issue with the fact that Campbell had not directly considered a 2016 auditor general’s report into the e-gaming initiative.
In his decision, Campbell had stated the office of the Auditor General was not “designed nor equipped to conduct an inquiry to discuss civil liability."
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