- The plaintiff's application to amend her statement of claims against the defendant lawyers to add further particulars of the existing claims and add new claims of the defendants' wrongdoing that came to light over time.
- The defendants' application to strike, which they did not file until two years after the plaintiff filed her first statement of claim against the lawyers in March 2013, and one year after the plaintiff filed her original application for amendments in December 2013.
Justice Hollins reserved decision for these applications. This blog will report on the decision when it is available.
This case is about one of the most extreme and egregious cases of abuse and deceit by opposing lawyers toward a self-represented person. This case is not about opposing lawyers’ duty of care to the other side; it is about abuse of process, malice, fraud, deceit, acting in bad faith and other wrongdoing well settled in jurisprudence as rightful causes of action against opposing lawyers when warranted.
The plaintiff's arguments are contained in her brief which can be read here. In summary, the defendant lawyers' extensive wrongdoing which caused the plaintiff to suffer serious damages, includes:
a) The defendants' pattern of serious abuse of process in various forms, including the defendants bringing a number of malicious applications with entirely false allegations against the plaintiff, all of which were properly dismissed by the Court.
b) The defendants' malicious harassment of the plaintiff for the purpose of personal attack outside their client’s interest.
c) The defendants' defrauding the Plaintiff and committing fraud upon the Court with a $150,000 bill of costs, which deceitfully claimed costs for, among other things, fabricated hearing dates that do not exist, application costs which were previously reversed to be in the plaintiff’s favour, applications for which the plaintiff was successful, applications for which the defendants were refused costs sought, and duplicated bill of costs items, and refusing to provide supporting documentation for the bill of costs upon the plaintiff’s request. The defendants fraudulently procured a costs judgment upon the Court being misled and deceived by acting on the false representations made by the defendants.
d) The defendants' unlawfully obtaining the plaintiff’s credit report on April 11, 2013, which came to light in 2015, in violation of her privacy and as a means of assessing the plaintiff’s financial assets, along with various property searches, to carry out their fraudulent scheme. In a related matter, on December 12, 2016, the Privacy Commissioner of Alberta issued decision #003172 denying the defendant Gowlings its request for authorization to disregard the Plaintiff’s access request for her credit and financial information, and ordering Gowlings to respond to that access request. In common law, this privacy breach is referred to as "Intrusion upon Seclusion".
e) The defendants' numerous additional serious and deceitful misrepresentations to the Court.
f) The defendants' defaming the plaintiff, including with unsuccessful malicious applications filled with absolutely false allegations brought in bad faith seeking to deceitfully label the plaintiff injurious to her reputation; conspiracy with a publisher which advertises for Gowlings, and from which the plaintiff has obtained an out of court settlement, and; in making defamatory statements about the plaintiff to her lawyer on limited retainer.
g) The defendants' intentional infliction of physical, emotional and economic harm upon the plaintiff.The defendants' arguments consisted of pleads to overlook the defendant Megan McMahon and Taryn Burnett's serious wrongdoing. The defendants' lawyer Perry Mack argued, in essence, that lawyers are above the law and that it is actually lawyers' jobs to make malicious applications filled with lies (despite that all of the malicious applications were dismissed by the court in the plaintiff's favour and caused the plaintiff serious harm), and that even the defendants' fraudulent conduct should be overlooked. Mr. Mack further argued that, contrary to case law, once a lawyer manages to deceive a court, which expects an officer of the court to act with integrity, the lawyer is somehow invincible, and that the lawyers' conduct was uncomfortable for the plaintiff but that's too bad. It is shocking comments like these that erode the public's confidence in the legal profession and the administration of justice.
Defence counsel Mr. Mack also attempted to mislead the court to believe that the plaintiff's claims against the defendant lawyers McMahon and Burnett were somehow already dealt with in the underlying medical malpractice claim. This is an absolutely false and egregious misrepresentation. There is no question that the plaintiff's claims against the lawyers for the damages they inflicted, including causing her to be on medical leave as a result of their malice, in addition to the financial harm resulting from the lawyers' various frauds, have always been dealt with in the lawsuit against the lawyers, and the plaintiff's evidence and court decisions are also clear on this.
The plaintiff has extensive evidence to rely on in her affidavit filed June 5, 2018 for the applications. The defendants, on the other hand, have no evidence.
Supreme Court of Canada case law, which is binding on all courts in the nation, states that defendants bear an "extremely high onus" on an application to strike a claim and that a claim can not be struck unless it is "plain and obvious or beyond reasonable doubt" that the facts, which must be accepted as true, do not disclose a reasonable cause of action (Hunt v. Carey, [1990] 2 SCR 959; Ernst v. Alberta Energy Regulator, 2017 SCC 1). The Supreme Court has also recently reaffirmed that courts have inherent jurisdiction to take action against lawyers who engage in malicious litigation abuse (Quebec Director of Criminal and Penal Prosecutions v. Jodoin, 2017 SCC 26). Read more about this and other case law that supports the plaintiff's position in the plaintiff's brief here.
Case law is also clear that there is a low threshold for a plaintiff to meet in order to file amended pleadings, including: Balm v. 3512061 Canada Ltd, 2003 ABCA 98; Tran v. University of Western Ontario, 2015 ONCA 295.
As reported earlier in this blog, a new series will take a closer look at some of the categories of serious wrongdoing committed by the defendant lawyers Megan McMahon and Taryn Burnett that resulted in this legal action being taken against them.
Watch for Part 1 in this series which begins with the subject of the defendant lawyers' Fraudulent Misrepresentations and Perpetration of Fraud Upon the Court.
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