P.E.I. Court of Appeal to decide future of e-gaming suit

Arguments concluded Wednesday in the P.E.I. Court of Appeal after two days of hearings in a $150-million lawsuit brought against the P.E.I. government by Capital Markets Technologies (CMT).

In its original statement of claim filed in 2015, CMT alleged breach of contract against the province. An amended statement of claim filed in 2018 added allegations of misfeasance in public office and destruction of evidence against the province and specific public officers including former premier Robert Ghiz.

The Appeal Court would not provide an estimate of how long it will take to produce a written decision given the number of documents involved in the case.

CMT is appealing a decision from September 2019 where P.E.I. Supreme Court Justice Gordon Campbell dismissed the company's statement of claim in its entirety, after lawyers for all defending parties filed a motion for summary judgment.

On Wednesday, government lawyer Jonathan Coady said CMT had not put forward any compelling reasons for the Court of Appeal to overturn Campbell's decision.

"We have to focus on ... the admissible evidence. The legal test," said Coady. 

"And when we do that in this case it's my submission there's no reviewable error. And this [claim] does not raise any genuine issues that require trial."

Stemmed from failed e-gaming affair

CMT is alleging government was in breach of contract regarding a plan to set up a financial service centre to process online transactions.

The allegations stemmed from a memorandum of understanding (​​​​​MOU) signed between government and a subsidiary of CMT in July of 2012. Efforts to set up a financial services centre in the province came in the wake of P.E.I.'s e-gaming affair — a failed attempt by the province and Mi'kmaq Confederacy to establish P.E.I. as a regulator for online gambling.

As part of its appeal CMT filed three separate motions to have the Court of Appeal consider new evidence in the form of documents the company obtained through freedom of information requests.

The company's lawyer, John McDonald, suggested the documents — including hundreds of pages of emails from government officials — clearly show those officials were negotiating to have other companies provide the same services as CMT, in breach of the exclusivity agreement of the MOU.

Company should have asked court for records: province

McDonald argued government was obliged to provide the documents in question as part of the legal proceedings because they're relevant and material to the case, but that government failed to do so.

However, on Wednesday, Coady argued if CMT felt there were more documents that needed to be disclosed, the company should have filed a motion in Supreme Court, rather than filing freedom of information requests.

"You file a motion for these things," said Coady. "If you want relief you file a motion, that's how it works."

Ghiz signed 'standard paperwork,' deleting emails

At one point, Chief Justice David Jenkins specifically questioned allegations against former premier Robert Ghiz in CMT's statement of claim.

Ghiz was one of seven new defendants added to the claim in 2018.

CMT alleges Ghiz ordered the "destruction of emails" of two former staff: chief of staff Chris Leclair, who left his position in 2011, and cabinet clerk Rory Beck, who died in 2012.

In his own affidavit filed in December 2018, Ghiz said he never signed any form for Beck. 

And under cross examination a month later, Ghiz said he simply added his signature to "standard paperwork" that had been filled out by another member of his staff when he authorized the deletion of LeClair's network files one week after LeClair left his position. Ghiz said he may or may not have "perused" the document before signing it.

P.E.I.'s auditor general found the emails were deleted in contravention of P.E.I.'s Archives and Records Act. 

But as to whether the missing emails might have impacted CMT's case accusing government of breach of contract, Jenkins pointed to the fact the MOU alleged to have been contravened wasn't signed until months after Ghiz authorized the deletion of the emails.

"The action that [Ghiz] took was before the MOU was even a glimmer in anyone's eye," said Jenkins. "I don't know how he could be that prescient."

In his 2019 ruling, Campbell found CMT had "failed to show that the evidence was destroyed intentionally or that it would be reasonable to infer that the evidence was destroyed in order to affect the outcome of the litigation."

Error in ruling, says CMT

But CMT's lawyer pointed to what he said are errors in Campbell's ruling, including one statement in which the judge declared that neither CMT nor its subsidiary "were ever involved in any way with the so-called e-gaming project," an assertion made by government in its original statement of defence.

In one of the emails CMT is asking to have admitted as evidence, a senior investment officer at Innovation PEI describes CMT's subsidiary Financial Markets Technologies as "a company that is part of the secret gaming file."

CMT also said Campbell erred in not allowing documents obtained through freedom of information to be admitted as evidence.

"If there's a common theme here in this action, it's documents," said McDonald. "What happened to them? Where are they?"

If CMT is successful in its appeal, its case would go back to P.E.I. Supreme Court where it could go to trial.

If it fails to have the lower court's decision overturned, its only remaining recourse would be to ask the Supreme Court of Canada to hear a further appeal.

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