Counsel representing a firm in the e-gaming saga has argued that filing Freedom of Information requests was necessary to obtain internal communication from key government officials.
In a hearing before the P.E.I. Court of Appeal on Tuesday, John W. McDonald, legal counsel representing Capital Markets Technology Inc., said that in early January 2019, he observed e-mail communication from several government officials involved in the ultimately unsuccessful e-gaming initiative had “gone missing.”
McDonald said that he then embarked on a strategy, which he likened to the game Battleship, to obtain the information through Freedom of Information requests. He also suggested that the counsel representing government, Jonathan Coady, had deliberately withheld documents from disclosure.
Tuesday's hearing was held as an appeal to a fall 2019 decision by Supreme Court Justice Gordon Campbell dismissing a $150-million lawsuit brought about by CMT against the provincial government and 14 defendants. Campbell’s lengthy decision disputes that there was a genuine issue requiring trial in CMT’s statement of claim.
The e-gaming initiative involved an attempt, between the period of 2009 and 2012, to establish P.E.I. as a regulatory hub for online gambling within Canada. At issue in the initial lawsuit was the claim that a memorandum of understanding signed between CMT Inc. and Innovation P.E.I. was knowingly violated.
During Tuesday’s hearing, McDonald said that, by January 2019, documents from several ministers of the former Robert Ghiz government had gone missing, He referred specifically to e-mail communication from former Ghiz chief of staff Chris LeClair, Ghiz himself and former deputy minister of tourism Melissa MacEachern.
“The strategic decision that I made, knowing that documents were disappearing, was to, and I refer to it with my client, was to play Battleship,” McDonald said.
McDonald filed multiple Freedom of Information Requests in hopes of obtaining documents not included in disclosure.
McDonald said some documents obtained through FOIPP show that government staff were engaged in negotiations with RBC related to a financial services platform during the time period of the MOU, which contained an exclusivity clause.
McDonald also presented e-mails from Brad Mix, then an employee of Tourism P.E.I., indicating Mix had attended a financial services conference in Japan in the summer of 2012, also during the time period of the MOU.
McDonald alleged that e-mails from Mix, in which he discussed contracted a corporate "matchmaker," who would set up meetings with different financial services companies.
"That's precisely, 100 per cent, what CMT and 764 were doing. Attempting to set up in Prince Edward Island," McDonald said, referring to a numbered corporation that was a subsidiary of CMT.
"I mean, again, gold-plated evidence of the breach of the MOU.”
Inadmissable evidence
Government lawyer Jonathan Coady disputed the claims by McDonald. He said much of the information obtained through FOIPP, including correspondence between P.E.I.’s Information and Privacy Commissioner, is inadmissible.
Coady also said the submissions from McDonald contained hearsay and opinions.
He disputed accusations about failing to disclose documents, pointing to instances when he had informed McDonald that documents he sought were included in disclosure.
Campbell, in his decision in September, had been critical of evidence obtained by McDonald through FOIPPs.
“It seems that plaintiffs preferred to come to court saying they have been denied documentary disclosure rather than go to court in advance of the hearing seeking documents and risk being told they are not entitled to such documents,” Campbell wrote.
Coady also argued the negotiations with RBC pre-dated the MOU. He disputed that the negotiations with other companies related to financial services was a breach of the MOU.
“I just cannot accept that this is gold-plated evidence,” Coady said.
“It is just not proof at 100 per cent certainty. It does not raise an issue that requires trial.”
The appeal will continue on Wednesday.
