Allegations Series Part 2: The Defendants Megan McMahon and Taryn Burnett's Abuse of Process, Malice and Bad Faith

This is Part 2 in a series on the allegations of serious wrongdoing committed by the defendant lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings, in the ongoing case against them this blog reports on.

Part 1 of this allegations series examined the defendants McMahon and Burnett's fraudulent misrepresentations and fraud upon the court, which can be read here.

In Part 2, we focus on the defendants McMahon and Burnett's Abuse of Process, Malice and Bad Faith.

McMahon and Burnett were the defence counsel in the underlying medical malpractice lawsuit against Dr. Peter Whidden who injured the plaintiff and caused her to undergo multiple corrective surgeries. Burnett was removed from the case and McMahon was brought on and continued with abusive behaviour toward the plaintiff. Further background can be read in previous posts in this blog.

The enormity of McMahon and Burnett's abuse of process, malice and bad faith could fill a book and it is not possible to summarize this vast and broad wrongdoing in a single post. This post aims to review some of the more serious wrongdoing in this category of allegations. Additional facts and evidence of this wrongdoing are contained in the plaintiff's Brief, Amended Statement of Claims, and affidavit filed June 5, 2018.

The defendants McMahon and Burnett's abuse of process, malice and bad faith takes various forms including maliciously attacking the plaintiff outside their client's interest through applications filled with lies intended to harm the plaintiff, making egregious lies to the court in pursuit of such, making collateral attacks on the court's prior orders which dismissed their malicious applications, and much more.

The defendants McMahon and Burnett's  unsuccessful repeated vexatious applications, contempt of  court  application,  and  security  for  costs  applications brought over the course of the medical malpractice action were rife with false allegations and filled with reprehensible lies intended to mislead the court and harm the plaintiff, and constitute malicious abuse of process. The court dismissed all of these applications brought by the defendants McMahon and Burnett.

The plaintiff suffered emotional, financial and physical harm that was intentionally inflicted by the defendants McMahon and Burnett, and seeks justice in this lawsuit against them for damages.

Some of the defendants McMahon and Burnett's applications filled with lies featuring abuse of process, malice and bad faith, are detailed below.

McMahon and Burnett's vexatious application #1 filled with malicious lies, in the medical malpractice action

• Defendants McMahon and Burnett failed to serve this application with proper notice: maliciously served on holiday of Easter Sunday 2013; served without the required 5 days notice; some purported supporting materials including hundreds of pages of irrelevant case law served the day before the application without proper notice.

• Application dismissed by order of the court pronounced August 14, 2013 / filed August 29, 2013.

• Almost every single statement and allegation in this application is completely false. The main ground for this application is the completely false and outrageous lie purporting that the plaintiff made six applications for a stay of their summary judgment application (which the plaintiff was ultimately successful on). There is no truth whatsoever to the defendants McMahon and Burnett's grounds and other lies contained within the application and they of course failed to show any evidence for them. 

• In addition to the court entirely dismissing the application by order pronounced August 14, 2013 / filed August 29, 2013, it vacated and revoked the interim basis order to a state of never being made in the first place given it was was made under the circumstances of the defendants McMahon and Burnett making egregious lies with ex-parte attendance without the plaintiff being present and having opportunity to respond to their lies. 

• The plaintiff's affidavits, including her affidavits filed August 2 and 12, 2013, exposed the defendant McMahon and Burnett's egregious lies in this application for what they were.

• The defendant McMahon refused to let the plaintiff cross-examine their affidavit for this application, despite that the plaintiff had a right to cross-examine on it pursuant to the rules of court. McMahon refused to allow the cross-examination on the affidavit because it was made for the improper purpose of purporting to support her application filled with lies. 

• At the hearing of the application on August 14, 2013 when the plaintiff finally had opportunity to speak to the malicious application, the court asked the defendant McMahon why she refused to allow the plaintiff her right to cross-examine on the affidavit. McMahon flippantly responded, "I just chose not to", and acknowledged the court questioned her conduct in refusing the cross-examination and failing to give reason [Plaintiff's Affidavit - June 5, 2018, Transcript excerpt of proceedings August 14, 2013 at pp. 34-36, Exhibit "6"].

McMahon and Burnett's vexatious application #2 filled with malicious lies in the present action against them

• Application served without proper service yet again: maliciously served on Thanksgiving weekend 2014; served without the required 5 days notice, and intended to be heard two business days later but pre-empted by court power outage in October 2014.

• Application denied again by the court, this time on December 10, 2014. 

• It is an egregious collateral attack for the defendants McMahon and Burnett to attempt to have this application heard again and on the same basis, despite that the court already dismissed it on August 14, 2013 as noted above. 

• The defendants McMahon and Burnett instructed their defence lawyer Perry Mack to attend before the court ex-parte without the plaintiff having an opportunity to be present and be heard, with intent to deceive the court into believing that it had made an order verbally on December 4, 2014 for this application to be heard, which is an egregious lie as no such order was made: 

• When the defendants' showed the court their drafted form of order which egregiously inserted this malicious application the court never ordered to be heard, the court said "I'll say this, I did not order that" along with other comments asserting that no such application was ordered to be heard [Plaintiff's Affidavit - June 5, 2018, Transcript excerpt of proceedings December 10, 2014 at pp. 34-36, Exhibit "6"].  

• The plaintiff filed affidavits on December 8, 2014 and December 10, 2014 attesting to the malicious tricks of the defendants in trying to deceive both her and the court with their attempt to relitigate this malicious application that was already dismissed by the court. 

McMahon and Burnett's application for contempt of court on basis of costs filled with malicious lies in the medical malpractice action

• Filed April 22, 2013 by the defendant Burnett.

• Application dismissed by the court on May 30, 2013.

• The purported "grounds" regarding payment of costs were not only false, but were in fact prohibited by the rules of court.  Rule of court 10.52(3)(a)(i) states that contempt can not be sought for an “order to pay money.” 

• This application was maliciously filed on April 22, 2013 in a collateral attack on the court's order after the court granted the plaintiff summary judgment application adjournment earlier the same day, and at which was made clear a specific cost was being paid shortly and it was indeed paid promptly. The court had also accepted the plaintiff's reasoning for the circumstances.

• The defendant McMahon admitted that the defendant Burnett brought her application for contempt of court in abuse of process. This admission was made when McMahon stated to the court that Burnett brought the application specifically because the court had granted the plaintiff an adjournment for the summary judgment application earlier that same day [Plaintiff's Affidavit - June 5, 2018, Transcript excerpt of proceedings May 7, 2013 at p. 6, Exhibit "7"].

• In addition to payment of costs being a prohibited ground for making a contempt of court application, case law is clear that contempt can only be sought when there is intent not to comply with an order which is clearly not the case here as confirmed by the judge earlier the same day before Burnett brought the malicious application. 

McMahon and Burnett's three applications for security for costs in the medical malpractice action

• In addition to the malicious vexatious applications and malicious contempt of court application mentioned above, the defendants McMahon and Burnett also vexatiously filed three security for costs applications in 2013, again all being filled with false allegations and blatant lies.

• The court dismissed all three of these security for costs applications (dates indicated below).

• It is an outrageous abuse of process and collateral attack to file the same application three times, each being dismissed by the court.

• These security for costs applications were brought nine years after the medical malpractice litigation commenced in 2004, in abuse of process and in desperation to circumvent their unmeritorious summary judgment application they filed in November 2012, which was also dismissed by the court.

• Details of these three dismissed security for costs applications are below. The dates of some of these applications coincide with dates of the other applications mentioned above because the defendants McMahon and Burnett relished bringing multiple malicious applications at a time to inflict maximum harm.

a) Application filed January 11, 2013 by the defendants seeking enhanced costs on a full indemnity basis and seeking that if not paid by January 31, 2013 the plaintiff’s application be struck; Application dismissed by the court by order January 16, 2013. 

b) Application filed March 28, 2013 by the defendants for security for costs (egregiously served on Easter Sunday and without proper notice)/amended April 2, 2013 to be heard April 4, 2013 (again without proper notice); rescheduled to April 11, 2013 and attended ex-parte by the defendants; application dismissed by the court April 11, 2013. 

c) Application for security for costs filed April 22, 2013 by the defendants and unsuccessfully argued by the defendants; application dismissed May 30, 2013.

More abuse of process by McMahon and Burnett at the June 2018 amendments/striking applications in the present action against them

• The defendants McMahon and Burnett's extraordinary abuse of process with their malicious vexatious applications did not end with their dismissals by the court in August 2013 and December 2014. McMahon and Burnett actually attempted to use their same affidavit prepared for their second failed vexatious application (the one denied by the court in 2014) again for the recent June 2018 applications for amendments/striking. The court properly refused to allow McMahon and Burnett's affidavit to be used for the June 2018 applications. The defendants had failed to comply with court instructions at the prior May 2018 case management meeting that required both parties to state the materials they would be relying on for the June 2018 applications, which would also give opportunity for any affidavit to be cross-examined. The defendants did not state they would be relying on any affidavit because they feared the plaintiff would have cross-examined on it and, further, it was prepared for the purpose of their malicious vexatious application already dismissed twice. 

• The defendants McMahon and Burnett's ongoing abuse of process played out as usual in additional ways for the June 2018 applications for amendments/striking. 

These are just some of the acts of abuse of process, malice, and bad faith by the defendants McMahon and Burnett.

Case law is  clear  that  courts  can  use  their  inherent  jurisdiction  to  deal  with  serious  lawyer  wrongdoing of abuse of process, malice and bad faith.  Very  recent  case  law  further  shows  the  importance,  and  even  necessity,  of  sanctioning  this serious wrongdoing.

In  the  recent  decision  of  Quebec  (Director  of  Criminal  and  Penal  Prosecutions)  v.  Jodoin, 2017  SCC  26,  the  Supreme  Court  of  Canada  affirmed  that  lawyers  must  be  held  accountable  for  malicious  conduct  and  abuse  of  process  and  that  the  Court  has  inherent  jurisdiction  to  deal  with  it.  This  is  applicable  to  the  plaintiff’s  allegations  of  the  defendants McMahon and Burnett's  fraud  in  addition  to  their  other  malicious  conduct  with  their  ongoing  harassing,  unfounded  and  vexatious  applications  against  the  plaintiff,  all  of  which  were  properly  dismissed  by  the  Court.  The  Supreme  Court  stated in Jodoin:

A court therefore has an inherent power to control abuse in this regard and to prevent the use of procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute...As officers of the court, lawyers have a duty to respect the court’s authority. If they fail to act in a manner consistent with their status, the court may be required to deal with them by punishing their misconduct. 

...It was therefore reasonable for the court to conclude that J had acted in bad faith and in a way that amounted to abuse of process, thereby seriously interfering with the administration of justice. 

...This high threshold is met where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that is deliberate.

A  review  of  the  within  plaintiff’s  pleadings  and  evidence  shows  there  is  no  question  that  the  defendant  McMahon  and  the  defendant  Burnett  demonstrated  an  ongoing  pattern  of  unfounded  and  vexatious  proceedings  denoting  serious  abuse  of  the  judicial  system  and  dishonest,  malicious  conduct  that  is  deliberate.

Citing  the Jodoin Supreme  Court  of  Canada  case,  the  Court  of Queen's Bench stated in the recent case 1985  Sawridge  Trust  v  Alberta  (Public  Trustee), 2017  ABQB  530  that  litigation  abuse  by  lawyers  must  be  actioned and  that  it  is  the  Court’s  inherent  jurisdiction  to  impose consequences  for  this  misconduct.  The  Court  went  on  to  review  the  Supreme  Court  of  Canada’s  endorsement  of  the  Statement  of  Principles  on  Self-Represented  Litigants in  Pintea v. Johns, 2017 SCC 23,  and  drew  the  comparison  that  the  “new  reality”  and  “culture  shift”  required  to  treat  self-represented  people  fairly  similarly  applies  to  the  conduct  of  lawyers.  At  para.  50  the  Court  stated:

What  is  new  are  the  implications  that  can  be  drawn  from  a  lawyer’s  actions  and  inactions.  They,  too,  must  be  part  of  the  “culture  shift”.  If  their  actions,  directly  or  by  implication,  indicate  that  a  lawyer  is  not  a  part  of  that  process,  then  that  is  an  indication  of  intent.  The  future  operation  of  this  and  other  trial  courts  will  depend  in  no  small  way  on  the  manner  in  which  lawyers  conduct  themselves.  If  they  elect  to  misuse  court  procedures  then  negative  consequences  may  follow.

In  the  very  recent  follow-up  decision  for  the  same  case,  1985  Sawridge  Trust  v  Alberta  (Public  Trustee), 2018 ABQB  213,  the Court  made  clear  it  is  the  role  of  the  court  to  penalize  abusive  litigation  by  lawyers.  The  Court  stated  at  para.  31:

It  is  critical  that  this  Court  continue  to  disapprove  of  abusive  litigation,  changing  positions,  and  re-arguing  settled  issues  (Staggat  para  32; Chutskoffat  para  92; Sawridge #7 at  para  82-91).  Consequently,  Ms.  Kennedy  and  Mr.  Stoney,  by  virtue  of  their  own  actions,  have  opened  themselves  up  to  enhanced  costs  being  awarded  against  them  in  relation  to  the  proceedings  that  gave  rise  to Sawridge #8.  In  accordance  with  the  reasoning  for  awarding  costs  against  a  lawyer  personally  in Sawridge #7,  there  is  a  sufficient  basis  to  award  solicitor-client  costs  against  Ms.  Kennedy  and  Mr.  Stoney  on  a  joint  and  several  basis  in Sawridge #8.  

Rule of Court 10.52(3)(a)(i) makes clear that a contempt of court application can not be brought on the basis of payment of costs, yet the defendants McMahon and Burnett brought this application, unsuccessfully, against the plaintiff on this prohibited ground and, thus, in abuse of process, malice and bad faith. In addition to a bar on a contempt application for costs, the authorities are clear that contempt can only be sought when there is intention not to comply which is clearly not the case here. The authorities state the standard of proof for establishing civil contempt is “proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice”: Demb v Valhalla, 2016 ABCA 172.

Authorities are also clear that opposing  lawyers  can  not  rely  on absolute  privilege  when  their  conduct  is  based  in  abuse  of  process,  malice,  bad  faith  and  seeks  contempt  of  court. The  presence of malice defeats a defence of privilege.

The  defendants McMahon and Burnett in fact acknowledged in their brief for the plaintiff's amendments application and the defendants' striking application that  the  law  protects  counsel  only  when  they  act  in  good  faith  and  when  their  statements  are  made  in  connection  with  legitimate  process.  The  plaintiff’s  pleadings,  which  must  be  accepted  as  true  on  an  application  for  striking pursuant to binding authority,  and  which  are  supported  by  evidence  [Plaintiff’s  Affidavit – June  5,  2018],  are  clear  that  the  defendants’  conduct  has  been  in  egregious  bad  faith  and  in  abuse  of  process.

Watch for upcoming posts in this Allegations Series, which will include reviews of the defendants Megan McMahon and Taryn Burnett's Defamation and Intrusion upon Seclusion (breach of privacy). The obligations of opposing counsel toward self-represented people pursuant to the Supreme Court-endorsed Statement of Principles on Self-represented Litigants, and McMahon and Burnett's utter failure to comply with them, will also be examined.