The first ever consent order signed by the province’s Information and Privacy Commissioner will be brought before the supreme court next month.
The consent order relates to a Freedom of Information request made by Paul Maines, the man at the centre of the ongoing e-gaming legal saga.
Maines has filed a notice of motion to enforce the consent order, signed by himself and Erin McGrath Gaudet, deputy minister of the department of Economic Growth, Tourism and Culture. Information and Privacy Commissioner Karen Rose also signed the consent order, after Maines requested a review of a Freedom of Information request of e-mails sent or received from Brad Mix, a former employee of Tourism P.E.I., between February and July of 2012.
Maines’ notice of motion requests a contempt order from the court, as well as an order requiring the province provide him the documents.
Mix was one of fourteen named defendants in a $150 million lawsuit that was dismissed last fall before it could proceed to trial.
This was the second lawsuit filed by Maines to be dismissed. Maines has since filed an appeal.
Maines believes the provincial government is deliberately withholding documents, in contravention of Freedom of Information laws.
"Just connect the dots. It's never happened before. They won't produce them. I don't know how else you can look at it."
"Just connect the dots. It's never happened before,” Maines told The Guardian.
"They won't produce them. I don't know how else you can look at it."
In the court filings, Maines says a FOIPP request was filed on May 14, 2019. He was initially informed he would receive the information by July 22 but then received several notices of delay.
Finally, in October, McGrath Gaudet signed a consent order indicating the records would be produced by January 7, 2020. But then came another letter indicating a delay until February.
"The motion isn't for me to argue [that the province is] in contempt, it's an enforcement motion. The courts have to enforce the order," Maines said.
Information and Privacy Commissioner Karen Rose confirmed this was the first time her office, which opened in 2002, has ever signed a consent order related to a FOIPP request.
"All of our orders may be filed with the court. It's just that, to my knowledge, nobody ever has," Rose said.
Rose added that the matter is beyond the jurisdiction of her office and is “out of our hands.”
“The fact alone that somebody is missing some emails does not allow us to jump to the conclusion they are missing for some sinister reason."
Maines’ lawsuit alleged several provincial employees, including Mix, violated the provisions of a 2012 agreement signed between Maines’ company, Capital Markets Technology Inc. and Innovation P.E.I. The agreement set out conditions for Innovation P.E.I. and a CMT subsidiary to negotiate the establishment of a financial services platform. The platform was to be used for a tourism loyalty card program, but the work on this overlapped with an initiative to establish P.E.I. as a regulatory centre for online gambling.
Maines also alleged several public officials connected to the e-gaming initiative destroyed public records and e-mails. None of these allegations have been proven in court.
The online gambling initiative would eventually be abandoned by the Robert Ghiz government.
In his September 2019 decision dismissing the CMT statement of claim, supreme court justice Gordon Campbell noted the missing e-mails. But he deemed these to be inconsequential to the legal claims of CMT.
“The fact alone that somebody is missing some emails does not allow us to jump to the conclusion they are missing for some sinister reason,” Campbell wrote in his decision.