P.E.I.'s Department of Finance is apologizing to a man suing the province for tens of millions of dollars, acknowledging the provincial government failed to provide emails it should have handed over to him as part of a freedom of information request.
Paul Maines filed the request in 2019, asking for any records exchanged between the province's former finance minister Wes Sheridan and Chris LeClair, the former chief-of-staff to ex-premier Robert Ghiz. At the time the emails were exchanged, LeClair was working in the private sector, where he had been involved in e-gaming, government's failed attempt to become a regulator for online gambling.
"The Public Body acknowledges that there are responsive records that were not provided to the applicant and the Public Body apologizes for any inconvenience this may have caused," government lawyer Bobbi-Jo Dow Baker wrote in a letter to P.E.I.'s privacy commissioner, dated Sept. 29, 2021.
Maines has been locked in a five-year legal battle with the government. He is alleging breach of contract over an agreement the province signed with his company, Trinity Bay Technologies, a subsidiary of Capital Markets Technologies (CMT), to develop a centre to process online payments.
According to a report from P.E.I.'s auditor general, that agreement arose out of government's failed e-gaming initiative.
Among the records not provided to Maines are emails between Sheridan and LeClair sent during the time period covered by a memorandum of understanding the province had signed with Maines' company in the summer and fall of 2012.
Those emails describe a meeting with a representative of a company proposing to set up a payment processing facility on P.E.I. In one of the emails, Sheridan offers to join the meeting, but it's not clear whether he did so.
Exclusivity deal cited
Maines' court case hinges on an allegation that the province discussed a proposal with another company while under an exclusivity agreement with his company.
Maines said he learned of the emails that were held back from him after the privacy commissioner ruled on a similar freedom of information request filed by Kevin Arsenault.
In that case, commissioner Denise Doiron ruled that the government was required to disclose emails which LeClair, acting as a third party in the matter, had asked to have withheld.
With Maines' similar request, the province didn't inform him there were any documents that were being withheld.
The access request aside, Maines says the government should also have disclosed the emails during the discovery process of his ongoing lawsuit.
Maines is asking the privacy commissioner to investigate how the province responded to his information request but the province is arguing against allowing that, based on the 60-day time limit for filing set out in the Freedom of Information and Protection of Privacy Act. The commissioner can decide to disregard that time limit in some circumstances.
Long legal fight
In a related ruling issued in June 2020, previous commissioner Karen Rose concluded the Department of Economic Growth had "deliberately withheld" the fact a span of emails dating from June 2010 to April 2012 was missing from the account of a senior bureaucrat with Innovation PEI, again in response to freedom of information requests from Maines and Arsenault.
Her report prompted the creation of a special committee of the legislature, which put forward recommendations to improve government records retention and accountability over government documents.
Maines' lawsuit against the province has twice been dismissed by the P.E.I. Supreme Court, but he was partially successful in the P.E.I. Court of Appeal.
That court ruled in October 2020 that the breach of contract suit can once again be brought forward against the province.
At the same time, though, it dismissed his claims against 14 individuals -- including Sheridan and LeClair -- leaving the P.E.I. government the sole remaining defendant.