Paul Maines, the plaintiff behind a $150 million e-gaming lawsuit, has filed a contempt motion arguing that a top civil servant in the P.E.I. government should be personally held liable for failing to produce documents requested through freedom of information.
A bench brief filed by John Phillips, counsel representing Maines, alleges that Erin McGrath-Gaudet, deputy minister of the Department of Economic Growth, Tourism and Culture, failed to comply with a court order related to the production of the FOIPP documents within a set timeline.
“Liability for contempt is direct, not vicarious, for Ms. McGrath-Gaudet and she is answerable, as a statutorily appointed officer of the Crown, for failing to comply with a court order,” the document says.
The contempt motion follows a lengthy process by Paul Maines to obtain internal documents related to the e-gaming initiative of the Liberal Robert Ghiz government. The initiative sought to establish P.E.I. as a regulatory hub for online gambling. Maines has alleged in an amended statement of claim that the provincial government breached a memorandum of understanding signed between Innovation P.E.I. and his company, Capital Markets Technology Inc. Two lawsuits have been dismissed. An appeal on the most recent dismissal is awaiting a decision by the P.E.I. Court of Appeals.
As part of the legal saga, Maines had filed several freedom of information requests of internal communications of several government officials related to the initiative between from the years 2011 and 2012.
A spring report by information and privacy commissioner Karen Rose found the response from the Department of Economic Growth, Tourism and Culture to Maines’ requests violated the Freedom of Information and Protection of Privacy Act. The privacy commissioner found that the department failed to notify Maines that the requested records had been destroyed. The commissioner also found that the fact that emails from a central player in the e-gaming saga were missing was also a violation of the Archives and Records Act.
McGrath-Gaudet had signed a consent order that agreed to produce the documents by November of 2019.
“The failure of the Public Body, EGTC, to comply with the Consent Order in this proceeding … resulted in the appellants, including me, not being able to put responsive email communications and documents before the Court of Appeal that may have been of assistance on the appeal,” read an affidavit from Paul Maines.
On Tuesday, during a hearing on the contempt motion, Mitchell O'Shea, counsel for McGrath-Gaudet, called for an adjournment to consider the brief filed by Phillips. O’Shea said he had received the filing only 16 hours prior to the hearing.
"We hadn't considered either of those reliefs as maybe something that would jeopardize the position of Erin McGrath-Gaudet herself," O’Shea told the court on Tuesday.
Justice Gregory Cann granted the adjournment. No date has been set for future hearings on the matter.
In June, Economic Growth, Tourism and Culture Minister Matthew MacKay pledged an “extensive review" into the destroyed documents and the freedom of information issues highlighted in the privacy commissioner’s ruling.
But in an emailed statement on Tuesday, the department said this review is currently on hold. The department will await recommendations from a new special committee on government records on whether to proceed with its review.
The all-party standing committee, which held its first meeting on Tuesday, is tasked with investigating the absence of the e-gaming-related records.
"Our goal is to avoid concurrent and potentially competing investigations and reviews which may conflict with each other," read a statement from the department.
On Tuesday, members of the committee debated whether to contract another third party to aid in the investigation of what led to the missing records. No decision was made on this matter.