This blog was originally created to document and share updates about the serious issues of unfairness and conduct the Carbone plaintiff experienced at the hands of lawyers Megan McMahon and Taryn Burnett at law firm Gowlings, during the course of the plaintiff’s legal proceedings in a medical malpractice action against Dr. Peter Whidden, and the subsequent lawsuit the plaintiff was compelled to bring against those lawyers for their conduct.
This blog now turns to the underlying case against the defendant Dr. Peter Whidden, as new developments raise concerns about the conduct of the same lawyer Megan McMahon and Gowlings and unfair treatment by certain adjudicators, a familiar challenge for many self-represented persons.
Despite having been dormant for nearly a decade, Megan McMahon, the lawyer who was a defendant in the lawsuit covered previously in this blog, brought an application for a renewed judgment in the Whidden action, pursued through the same unfair tactics previously documented in this blog.
The application for new judgment was unfairly granted by the applications judge, Applications Judge Lori A. Mattis, which the plaintiff has appealed, citing critical errors in law and fact, as well as procedural unfairness.
The issues raised on appeal reflect a continued pattern of concern that this blog has long sought to highlight, particularly regarding the lawyer conduct of Megan McMahon and the unfair treatment by some adjudicators who also allow exploitation by represented parties. The same lawyer Megan McMahon and law firm Gowlings, whose conduct gave rise to the plaintiff’s lawsuit against them, remain involved and central to the current events unfolding in the Whidden lawsuit.
This blog will continue to provide updates and filed court documents. The intention remains the same: to offer transparency and to ensure a record exists of the developments and concerns.
This appeal arises from a flawed decision by Applications Judge L.A. Mattis in response to the application for new judgment in the medical malpractice lawsuit against Dr. Peter Whidden. The new judgment application was brought by lawyer for the defendants, Megan McMahon, a decade after the underlying matter was concluded.
The new judgment application was fundamentally flawed and the related matters required that it should have been dismissed. With respect to lawyer Megan McMahon, she is somehow the responsible lawyer for the new judgment application despite that the Court of Appeal previously prohibited her involvement in this lawsuit on costs matters. Notably, the application for new judgment indicates it is brought on behalf of counsel for the defendants (in other words Megan McMahon, Gowlings) and not the defendant Dr. Peter Whidden.
Applications Judge Mattis disregarded key evidence and procedural rules, relied on inaccurate factual findings, and denied procedural fairness.
Below is the Appeal Brief of the Plaintiff filed on May 13, 2025.
APPEAL BRIEF OF THE PLAINTIFF/APPELLANT
INTRODUCTION
1.
This
is the Brief of the Plaintiff in Appeal of Applications Judge Mattis’ unfair
substantive Order and related unfair costs Order for the Defendants’
application for new judgment.
2.
The
substantive Order was made on February 10, 2025, and the Plaintiff filed her
Notice of Appeal on February 13, 2025. The costs Order was made on March 7,
2025 and the Plaintiff filed her Notice of Appeal on March 18, 2025.
3.
For
the reasons below, the Plaintiff’s Appeal should be granted.
Background
4.
This
is a medical practice action involving negligence and battery by the Defendants
Dr. Peter Whidden and Peter G. Whidden Professional Corporation. Dr. Peter
Whidden injured the Plaintiff and caused her to undergo multiple corrective
surgeries.
5.
After
an egregiously unfair trial in 2014 presided over by Justice Charlene S.
Anderson and her acceptance of a grossly inflated bill of costs prepared by the
opposing counsel for the Defendants, Megan McMahon, the Plaintiff and the
Defendants entered into a settlement agreement in which the Plaintiff paid
$50,000. The Defendants now, after a decade of no communication or contact with
the Plaintiff, egregiously sought a further large sum of money in their application
for new judgment.
6.
The
Defendants’ application for new judgement was fatally flawed and, further, the
Defendants are not entitled to the further costs they sought.
7.
At
the hearing of the application for new judgment and related hearing for costs,
Applications Judge Mattis made significant errors in law and findings.
Summary of Issues
8.
The
Defendants’ application for new judgment was barred by the Limitations Act,
RSA 2000:
(a)
pursuant
to section 10 with respect to Acquiescence or Laches.
·
The
Defendants did not contact the Plaintiff or take enforcement steps over a
decade and the Plaintiff reasonably concluded that the parties had moved on,
further to the significant $50,000 she paid in settlement and the fact that the
Defendants were not entitled to significant further costs which was procured by
the egregiously misrepresented bill of costs [Plaintiff Affidavit filed August
7, 2024], specific costs which were never dealt with.
·
Counsel
for the Defendants, Jessie Larter, made admissions on the record at the
February 10, 2025 hearing with respect to the Defendants “sitting back” and
doing nothing in attempt to drive up costs and collect more interest [February
10, 2025 Transcript of Proceedings].
(b)
pursuant
to section 11 with respect to Judgment for payment of money.
·
The
Defendants’ application for new judgment materials were out of time, warranting
mandatory dismissal of the new judgment application.
9.
The
Business Corporations Act, RSA 2000 and the Alberta Rules of Court
render the 2014 judgments invalid and unenforceable owing to the corporate
defendant Peter G. Whidden Professional Corporation in fact being defunct even before
the 2014 judgments were made, revealed through a corporate search conducted by
the Plaintiff [Plaintiff Affidavit August 7, 2024]. Similarly, the new judgment
Order in the name of the defunct corporation is also invalid and unenforceable.
The Business Corporations Act states that only the amalgamated
corporation, not an amalgamating corporation, can continue proceedings or
enforce judgments.
10. Megan McMahon, counsel for the
Defendants, was prohibited from involvement with costs further to the Alberta
Court of Appeal decision, yet she is improperly involved as the responsible
lawyer for the application for new judgment for costs. Ms. McMahon’s name
appears as the responsible lawyer on application, affidavit and order documents
filed for the Defendants in the new judgment matter. The application and order
documents show that the application was made by counsel for the defendants and
not by the Defendants.
11. The Defendants were not entitled to the entirety of the costs judgment they procured based on Megan McMahon's egregiously misrepresented bill of costs.
Applications
Judge Mattis Errors
12. The standard of review on
an appeal from the decision of
an Applications Judge is
correctness. No deference need be given to the Applications Judge’s
decision: Bahcheli v Yorkton Securities Inc., 2012 ABCA 166 at para 30.
12. Applications Judge Mattis erred in
law and findings.
13. This includes that Applications
Judge Mattis dishonestly misstated the facts. This includes, but is not limited
to, she dishonestly stated she did not know why the Defendants did not pursue
when in fact Ms. Larter, counsel for the Defendants, admitted in oral
submissions on February 10, 2025, right in front of Applications Judge Mattis,
that the Defendants did not pursue because they were “sitting back” in attempt
to drive costs up and further unjustly profit by waiting for interest to accrue.
14. Applications Judge Mattis ignored
the Rules of Court with respect to Affidavits, which render the Affidavits of
Gowling law clerk Karina F. improper and invalid:
(a)
The
June 26, 2024 Affidavit was improperly sworn on the basis of personal knowledge
which Ms. F. does not have [Plaintiff Affidavit May 13, 2025; Transcript of
Proceedings, February 10, 2025]. In addition, Ms. F. did not state she had
knowledge based on information and belief and the source of any information or
belief.
(b)
The
July 30, 2024 Affidavit, is improper and has no utility in any event. It was filed
late, after the mandatory Limitations Act 10 year limitations period
ended on July 29, 2024.
15. Applications Judge Mattis denied
the Plaintiff procedural fairness.
16. Applications Judge Mattis showed
bias in her words and actions.
17. It must also be noted that in
addition to Applications Judge Mattis’ errors in the present application for
new judgment, she has shown procedural unfairness in a separate matter she
heard and which she has not decided despite more than a year passing. Ms. Larter, who should have no connection to
that matter made a comment to her which was not appropriate in the
circumstances, to which Applications Judge Mattis gave her a non-verbal signal.
The Plaintiff may raise this issue again and in more detail if and when it
becomes necessary.
19. The Plaintiff also relies on the additional facts and argument stated in the within Brief, in addition to the oral submissions she will make at the Appeal hearing.
The
Defendants’ Application for new judgement is out of time.
19. The Limitations Act and Rules
of Court are clear that an application and supporting affidavit for new
judgment must be filed within 10 years of the order being made.
20. Section 11 of the Limitations Act
states:
Judgment for payment of money
11 If, within 10 years
after the claim arose, a claimant does not seek a remedial order in respect of
a claim based on a judgment or order for the payment of money, the defendant,
on pleading this Act as a defence, is entitled to immunity from liability in
respect of the claim.
21. 1.5 (5) states:
The
Court must not cure any contravention, non‑compliance or irregularity if to do
so would have the effect of extending a time period that the Court is
prohibited from extending.
22. Rule 9.21 states that an
application for new judgment must be served in accordance with Part 6 of the
Rules.
23. Rule 6.3 (3) states that both the
notice of application and any affidavit or other evidence must be served 5 days
or more before the application is scheduled to be heard or considered.
24. Rule 6.3 states:
(3) Unless an enactment,
the Court or these rules otherwise provide, the applicant must file and serve
on all parties and every other person affected by the application, 5 days or
more before the application is scheduled to be heard or considered,
(a) notice of the application, and
(b) any affidavit or other evidence in support of the
application.
25. The Limitations Act and Rules
of Court are clear that an application and supporting affidavit for new
judgment must be filed within 10 years of a judgment. The costs order was made
July 29, 2014 and, accordingly, the Defendants were required to file their
application materials by July 29, 2024. The Defendants’ Supporting Affidavit
was filed on July 30, 2024 (containing nothing to support an application for
new judgment) and was out of time. Prior to this, the
26. Further, service was not effected
as required. The Defendants were required to serve the Application and any Supporting
Affidavit pursuant to the Rules of Court 6.3(3).
27. In addition to the July 30, 2024
Affidavit being served late, it was required to be served with the Application.
Instead, the Affidavit was emailed to the Plaintiff on July 30, 2024 [Plaintiff Affidavit filed August
21, 2024], having both defects of being out of time and being served by
an improper method not allowed for a commencement document.
28. It must be noted that counsel for
the Defendants, Ms. Larter, stated in her July 30, 2024 email that it was a
supporting affidavit, thus having the requirement to be served with the Application.
It is also important to note that Ms. Larter was not permitted to file this
further Affidavit; the Order of July 25, 2025 of Applications Judge Farrington specifically
states that the Plaintiff may serve any further Affidavit by August 6, 2024
which was for the purpose of allowing the Plaintiff time to obtain further
documents due to the passage of 10 years. It was not for the purpose of the
Defendants to file further late materials.
29. It was the Defendants’ obligation
to apply for a new judgment with all requirements within the 10-year limitation
period. The Rules and case law are clear that while the consequences of
limitation periods may be harsh, they are necessary and, if not enforced, would
allow the normal limitation period applicable be indefinitely extended.
30. There is no extension of time
permissible for an application for new judgment under Rule 9.21. Rule 9.21
incorporates the limitation period in the underlying Limitations Act,
section 11, and it is not variable by the Court: Ginn v Feng, 2021 ABQB 292 at para. 31.
31. The Defendants’ attempt to renew
their judgment was out of time because both their application for new judgment
and any supporting affidavit evidence were not filed together, as required
under Rule 6.3(3). The original judgment was issued on July 29, 2014, meaning
the Defendant applicants had until July 29, 2024 to properly file their
application materials. While they submitted their application on an earlier
date, they failed to file a supporting affidavit until July 30, 2024 (which is
also of no utility in any event), after the limitation period had already
expired.
32. Applications Judge Mattis
acknowledged that all evidence for the Rule 9.21 new judgment application had
to be filed before the expiry of the limitation period. She stated [February
10, 2025 Transcript, p. 33, lines 4-6 ]:
Rule 9.21 expressly provides that
notice of the application must be filed before the expiry of a limitation
period. So in that regard, I find that it does require that the applicants file
all their evidence before the expiry of the limitation period.
33. Nevertheless, she ignored this acknowledgement
she made in effort to extend the time period for the Defendants, despite that
she was prohibited from doing so under Rule 1.5(5) and the Limitations Act
itself for which the Courts have made clear can not be extended by the Court.
34. Under Rule 6.3(3) of the Alberta
Rules of Court, an application must be supported by an affidavit filed and
served with the application unless otherwise permitted by the Court. The
failure to file the affidavit simultaneously with the application means the
application was incomplete and ineffective until the affidavit was actually
filed—after the 10-year limitation period had expired. Courts have consistently
required that all necessary materials be filed properly and in compliance with
procedural rules. Moreover, an incomplete filing is not in compliance with the Limitations
Act, under which the limitation period may not be modified by the Court (Ginn
at para. 31) .
35. Additionally, the Court of Justice
website makes clear that both the Application for new judgment and Supporting
Affidavit must be served at the same to the opposing party before the
application hearing and, further, that this service must be made at least seven
days before the application hearing.
36. Because the Defendants’ Supporting
Affidavit was not filed with the application as required, the service was defective,
and the application was not properly before the Court. An incomplete
application does not "stop the clock" on a limitation period, and the
late filing of the affidavit does not cure the defect after the deadline has
passed.
37. In addition, the Defendants served
their application on July 4, 2024, for an application hearing date of July 10,
2024, and thus was also out of time in terms of service which needed to be
effected 7 days before the Application hearing.
38. The Defendants’ failure to comply
with the Alberta Rules of Court and file and serve their Application materials
as required means they did not meet the 10-year limitation deadline under the Limitations
Act. As a result, their application was out of time and should have been
dismissed.
In TNL
Industrial Contractors Ltd. v. International Brotherhood of Electrical Workers,
1998 ABQB 241, the Court stated:
Even
though an affidavit may purport to be by way of personal
knowledge,
if it is demonstrated that the deponent did not in fact
have
personal knowledge, the affidavit can be struck.
Indeed,
Applications Judge Mattis should have struck the Karina F. Affidavits, and
erred in not doing so.
39. In TNL Industrial Contractors
Ltd. v. International Brotherhood of Electrical Workers, 1998 ABQB 241 (CanLII)
the Court stated:
Even though an affidavit may
purport to be by way of personal demonstrated that the deponent did not in fact
have knowledge, if it is personal knowledge, the affidavit can be struck. In Lumonics Research Limited v.
Gould et al (1983), 1983 CanLII 5000 (FCA), 46 N.R. 483 (Fed.C.A.), Pratte J.,
writing for the court, noted that the relevant Federal Court Rule,
(substantively similar to Rule 305 of the Alberta Rules of Court), required
that the affidavit be by way of personal knowledge. He stated at p. 490:
In my view, (the Rule) does not
govern the form of the their substance. That is to say that an affidavits, but
affidavit in which a deponent asserts facts which he is unable of his own
knowledge to prove will contravene the first part of the rule whatever be the
form of the affidavit. It follows, in my view, that an affidavit may be, in
effect, an affidavit of belief even if it is not drafted as such.
41. Applications
Judge Mattis erred when she refused the Plaintiff her right to question Ms. F.
on her affidavits.
6.7 A person who
makes an affidavit in support of an application or in response or reply to an
application may be questioned, under oath, on the affidavit by a person adverse
in interest on the application, and
(a) rules 6.16 to 6.20 apply for the purposes of
this rule, and
(b) the transcript of the questioning must be filed by the
questioning party.
41. The Defendants’ reliance on
Ministerial Order 27/2020 to extend their limitation period is an attempt to
justify their late application materials is misplaced.
42. Ministerial Order 27/2020 states:
- "Limitation
periods are suspended… from March 17, 2020, to June 1, 2020."
- "For
clarity, the limitation period or period of time resumes running on June
1, 2020, and the temporary suspension period shall not be counted."
43. The Ministerial Order temporarily
suspended limitation periods only between March 17, 2020, and June 1, 2020,
meaning time did not run during that window. However, this suspension only
applied to deadlines falling within that period, not to limitation periods
expiring years later. Here, the applicant was required to file their
application within 10 years, meaning their deadline was in 2024, long after the
suspension ended. The Order does not grant a blanket 75-day extension to all
limitation periods, nor does it apply retroactively to extend a 10-year
deadline.
44. The Ministerial Order was an
emergency measure meant to address the immediate impact of COVID-19
restrictions on individuals unable to take legal steps during the suspension
period. The Defendants, however, had the full 10 years to act and failed to do
so. The Ministerial Order explicitly states that limitation periods resumed
running on June 1, 2020, meaning it only paused time for cases actively running
during that specific period—it does not extend limitation periods that were
never affected in the first place.
45. The Defendants’ interpretation
would lead to an absurd result where every limitation period in Alberta is
extended by 75 days, regardless of when it was set to expire, which is clearly
not the intent of the Ministerial Order. Their application and supporting
affidavit was required to be filed by July 29, 2024 and was not filed in time.
The Ministerial Order does not apply, and their application is out of time and
must be dismissed.
46. Applications Judge Mattis erred in
agreeing with the Defendants that they could have an extension of their
Application for new judgment based on this. This is also an err in law as,
pursuant to Rule 1.5(5), Applications Judge Mattis was prohibited from
extending a Limitations Act time period.
47. The Defendants’ reliance on this
obscure ministerial direction they found, which does not apply, shows the
Defendants’ desperation to try to overcome their application for new judgment being
late. As per the authorities, lateness in filing an application for new
judgment is insurmountable; it can not be cured. This is fair and just for the Plaintiff,
who has a right to finality.
48. The Court is clear that an
Affidavit must be sworn by a person with personal knowledge. The magnitude of
the Application for new judgment in an amount exceeding $100,000 certainly
requires this.
49. Karina F., a legal clerk at
Gowling, swore two Affidavits in support of the Application for new judgment.
For the previous reasons mentioned with respect to being out of time and
defective service and the reasons below, both Affidavits are improper and fail
to comply with the Rules.
23.
Rule 13.18 respecting affidavits states:
13.18(1) An affidavit
may be sworn
(a) on the basis of personal knowledge, or
(b) on the basis of information known to the person swearing
the affidavit and that person’s belief.
(2) If an affidavit is
sworn on the basis of information and belief, the source of the information
must be disclosed in the affidavit.
(3) If an affidavit is
used in support of an application that may dispose of all or part of a claim,
the affidavit must be sworn on the basis of the personal knowledge of the
person swearing the affidavit.
50. The first Affidavit of Karina
F. was sworn June 26, 2024 and served on July 4, 2024. It is in violation
of the requirements of Rule 13.18. Ms.
F.’s states in this Affidavit:
I, Karina F., of Alberta, MAKE
OATH AND SAY THAT:
1. I am employed as a law clerk
with the law firm of Gowling WLG (Canada) LLP, counsel for the Applicants, Dr.
Peter Whidden and Peter G. Whidden Professional Corporation, and as such I have
personal knowledge of the matters herein deposed to, save where stated to be
based on information and belief, in which case I believe the same to be true.
51. It is not possible that Ms. F.
has personal knowledge of the matters 10 years ago because, at the time of
swearing the Affidavit, she had been with Gowling for less than a year – since
October, 2023 according to her Linkedin profile [Plaintiff Affidavit May 13,
2025, and attached in authorities to the Plaintiff’s Reply Brief filed February
6, 2025]. The Plaintiff did make brief reference to this at the September 5,
2024 attendance for the scheduling of the within Special Application.
52. Further, even had it been
sufficient, which it is not, for a legal clerk to swear an affidavit in support
of an Application for new judgment without having personal knowledge of the
matters, she would have had to have sworn on the basis of information and
belief and the source of such information was required to have been disclosed
in the Affidavit and it was not. Nowhere in the Affidavit does Ms. F.
disclose the source of information or belief in her Affidavit.
53. In addition, given the Affidavit is
associated with a matter that disposed of all or part of a claim, the Affidavit
was required to have been sworn on the basis of personal knowledge and it was
not.
54. Accordingly, both the June 26, 2024
Affidavit and the aforementioned July 30, 2024 Affidavit violate all elements
of Rule 13.18 respecting affidavits.
55. Consequently, the Application for
new judgment has no proper Affidavit in Support, which is mandatory, and the
Application for new judgment must fail on this basis also.
56. The Plaintiff submits that no
further Affidavit of the Defendants can be submitted at this point, with the
Application materials being out of time further to the Requirements of Rule
9.21 and the Limitations Act.
57. In the alternative, should there be
any entertainment of a proper Affidavit, which can only come from the Defendant
Dr. Peter Whidden, the Plaintiff should be at liberty to cross-examine on it at
length further to Rule 3.13.
58. It must also be noted that there
has been nothing filed from the Defendant Dr. Peter Whidden with respect to the
Application for new judgment. It is further noteworthy that the Orders that
have been filed in the matter of this Application, that have been filed by the
opposing party, all state that they are “Upon the Application of counsel for
the Defendants” and not that they are “Upon the Application of the Defendants”
giving rise to questions as to the motivation behind the application being
Megan McMahon’s interests and not the Defendants’ interests. The conflicts of
interest regarding Ms. McMahon and despite which the Orders and Application in
this Application matter are all to the attention of “Megan McMahon” is referred
to in another section of this brief.
60. The
Plaintiff also relies on Application for new judgment Rule 9.21 (6) which
states:
(6) If
the judgment debtor opposes the judgment creditor’s application in whole or in
part, the Court may
(a) give directions for the trial of an issue, and
(b) make any procedural order the Court considers necessary.
Conflict of
Interests regarding Megan McMahon
60. Megan McMahon was restricted from
involvement in the costs issues in this Action further to the direction of the
Alberta Court of Appeal decision Carbone v. Whidden, 2015 ABCA 161, which
states at paras. 36 and 37:
[36] However, the appellant makes another
related request. The appellant cites authority saying that often a lawyer
should not appear in court to argue on behalf of a client, about that lawyer’s
own conduct. Mr. Peacock, Q.C. was before me, and he proposes to argue a good
part of the respondents’ case on appeal himself. The appellant has no objection
to that. If the lawyer whom the appellant wishes to disqualify tries to argue
personally about her own conduct in the lawsuit (which I doubt will occur), the
appellant may then renew to the panel her objection to such oral argument on
that topic. That is not permission to reargue removing that lawyer from the
record and barring her from doing other types of work on this file.
[37] There is no principled reason, nor
maybe even jurisdiction, for me to prevent the lawyer in question from
working on the file, nor advising the respondents, nor assisting Mr.
Peacock on this litigation, nor even orally arguing aspects of the appeal
not directly about her own conduct. So far as I can tell today, the lawyer’s
own conduct only has to do with when the first offer to settle was served,
which is but one part of one issue, costs. [Emphasis added]
61. Despite the foregoing, Megan
McMahon is stated to be the responsible lawyer for the Defendants’ current
Application seeking a new judgment.
The Defendants’ application for new
judgment is barred by the doctrines of Laches and Acquiescence. The Limitations
Act provides that Laches and Acquiescence provide for the immunity of the
respondent. The admission of Jessie Larter, counsel for the Defendants, at the
February 10, 2025 hearing of the application for new judgment confirms the
applicability of Laches and Acquiescence in this matter.
62. The
Defendants’ application for a new judgment, brought ten years after the
original 2014 costs judgment, must be dismissed under section 10 Acquiescence
or laches of the Limitations Act, RSA 2000, c L-12. The law is clear
that claims must be denied where a party has sat on its rights in unreasonable
delay and shown acquiescence, especially when that delay has prejudiced the
responding party and fostered reliance on the assumption that the matter had
concluded.
63. Section 10 of the
Limitations Act states:
Acquiescence or laches
10 Nothing
in this Act precludes a court from granting a defendant immunity from liability
under the equitable doctrines of acquiescence or laches, notwithstanding that
the defendant would not be entitled to immunity pursuant to this Act.
64. On October 16, 2015, the Defendants
and the Plaintiff entered into a settlement agreement, under which the
Plaintiff paid $50,000.00 [Plaintiff Affidavit Filed August 7, 2024].
65. In the decade that followed, the
Defendants and their counsel made no attempts to seek further payment and they
did not take any steps to enforce the costs judgment, nor did they contact the
Plaintiff to seek costs throughout the decade. Their silence and total
inaction, for ten years, caused the Plaintiff to reasonably rely on the belief that
the parties had moved on and the matter was concluded [Plaintiff Affidavit
August 7, 2024], particularly in light of her substantial settlement
payment of $50,000 and knowledge that the costs judgment was procured through the
egregious misrepresentation of costs items in the Defendants' bill of costs
[Affidavit of August 7, 2024].
66. The
unreasonable delay by the Defendants was not inadvertent but deliberate and
strategic, and it has caused serious procedural and evidentiary prejudice to
the Plaintiff.
67. The
Plaintiff has lost access to key documents, the court itself has misplaced
affidavits and orders, and her ability to properly defendant against the
application for new judgment has been severely impaired. This is precisely the
type of situation the doctrine of laches is meant to guard against.
68. The substantial $50,000 settlement
payment by the Plaintiff, the complete lack of communication from the
Defendants or their counsel, and the absence of any demands for payment support
the Plaintiff’s reasonable belief that the matter was concluded.
69. The Defendants’ decision to pursue
enforcement over a decade after judgment was entered, with no communication or
indication of intent during that entire time, has fundamentally altered the
equities between the parties.
70. The prejudice to the Plaintiff is
stated in her Affidavit filed August 21, 2024 and her submissions as shown the
Transcript of Proceedings, February 10, 2025. The passage of time has resulted
in real and irreversible harm: key documents have been lost—including by the
court and by opposing counsel. The
Plaintiff no longer has the ability to reconstruct all the evidence necessary
to defend against the revived costs claim. This evidentiary prejudice,
compounded by the strategic conduct of the Defendants, makes enforcement at
this stage patently unjust.
71. Counsel for the Defendants Ms. Larter made admissions
on the record at the February 10, 2025 hearing for the application for new
judgment that the Defendants did not pursue costs [to which they are not
entitled] because, Ms. Larter said, they were trying to drive up costs and sit
back and collect interest, in egregious violation of the doctrines of laches
and acquiescence.
72. The Transcript of Proceedings, February 10, 2025, p.
29, lines 6-12, shows that admission by Ms. Larter in stating the Defendants’ position:
“the defendants did not have to do
anything to collect on this judgment and simply could have sat back as they did
after receiving $50,000. In response to the plaintiff’s position that the
defendants sitting back and allowing interest to accrue, not collecting, is
somehow inappropriate, we disagree. It’s reasonable for a party to decide to
forego expending additional money to collect costs or to collect a judgment
payable by a judgment debtor.”
73. This is clearly a classic situation
of laches and acquiescence which results in immunity to the respondent of a
claim.
74. With respect to errors by
Applications Judge Mattis in failing to apply the Limitations Act
doctrine of Laches and Acquiescence, it is especially egregious given that she
blatantly and dishonestly stated that she did not know why the Defendants did
not pursue enforcement. At p. 35, lines 32 and 35 of the February 10, 2025 Transcript
of Proceedings, Applications Judge Mattis dishonestly said, “there’s no
evidence before me of why it was not pursued” and “So I don’t know why it
hasn’t been pursued”.
75. Applications Judge Mattis knew full
well that Ms. Larter had just admitted right in front of her that they did not
pursue because they were “sitting back” and doing nothing to increase costs by
accruing interest. She also ignored that Ms. Larter admitted they did not take action
to collect costs.
76. As the Alberta Court of Appeal held in
Weatherford Canada Partnership v Artemis Kautschuk und Kunststoff-Technik
GmbH, 2017 ABCA 110, laches and acquiescence arise when one party’s
delay leads the other to reasonably rely on the status quo and prejudices them,
and disturbing that status quo would now cause injustice.
77. That is precisely what occurred here.
The Defendants' delay was not inadvertent—it was strategic. As opposing counsel
Ms. Larter openly admitted on the record, the Defendants “sat back” to increase
costs by accruing interest. This is not merely delay; it is calculated
exploitation of the legal process, and it gives rise to defences under section
10 of the Limitations Act.
78. In Weatherford Canada
Partnership v Kautschuk, 2017 ABCA 110, the Alberta Court of Appeal held
that the claimant party Weatherford’s behaviour in deliberately waiting to take
action while the limitation period expired and sitting on its rights for
business purposes, created prejudice or potential injustice to the respondents.
79. In Weatherford,
the claimant Weatherford knowingly and strategically held off on suing the
defendants in a timely manner, taking, what Weatherford referred to as, a
“prudent risk” for business purposes. They delayed taking action against the
other party because they were trying to drive up costs to further unfairly
profit before taking steps to pursue a judgment, and that is very similar to
the conduct of the within Defendants, by their own admission through their
lawyer Ms. Larter on February 10, 2025 at the hearing of the application for
new judgment.
80. In the underlying decision of the Alberta
Court of Appeal Weatherford decision, which was undisturbed by the Court
of Appeal decision, this Court in Weatherford Canada Partnership v Addie,
2016 ABQB 188 found against the claimant Weatherford for not complying with a
limitations period and sitting on their rights because they were taking as,
what they referred to as a “prudent risk”. It found that the opposing party
should not be deprived of limitations immunity for Weatherford’s claims. It
found Weatherford’s behaviour to be a classic example of laches and stated the
doctrines of laches and acquiescence are applicable to both equity and legal
claims. In making its determination, this Court stated:
[74]
More prosaically, Intact
Insurance itself refers to the Supreme Court of Canada decision
in M.(K.) which provided an instructive outline of the
fusion of courts of law and equity: see paras. 58 ff. The Supreme Court saw no
principled objection to the mingling of equitable and legal principles; on the
contrary, it asserted:
It is desirable, indeed inevitable, for
the two great branches of our judicial law systems to borrow from one another
to achieve just and reasonable results and consistency over time.
…
[79]
In summary on this point, in Alberta it
is not hopeless to invoke laches or other equitable principles when dealing
with limitations issues…
…
[107]
For the reasons set out below, I have concluded that the
applicants have met the required burden and are entitled to summary judgment dismissing
Weatherford’s claims against them: the limitations clock started to run against
Weatherford at the latest by March 31, 2006 and, by March 31, 2008, Weatherford
had not filed its claim against them. While Weatherford’s April 2008 added
claim against the applicants does relate to Weatherford’s original pleading, because
of the application of the equitable principles of acquiescence and laches, the
applicants should not be deprived of limitations immunity from Weatherford’s
claim.
…
[142]
I have earlier outlined why, in Alberta, acquiescence and
laches apply to legal as well as to equitable claims.
[143]
As to the notion of acquiescence, some additional perspective
is provided by Urbas Estate:
Laches and Delay also bars the Plaintiffs'
claim
79 Laches is
established when two conditions are fulfilled: (1) there is unreasonable delay
in the commencement or prosecution of proceedings; and (2) in all of the
circumstances the consequences of delay renders the grant of relief unreasonable
or unjust: Rhyolite Resources Inc. v. CanQuest Resource Corp., [1999]
B.C.J. No. 114 (C.A.), at para. 33.
80 There are two
distinct branches to the laches doctrine. The doctrine will apply where the
delay of the plaintiff (a) constitutes acquiescence, or (b) results in
circumstances that make the prosecution of the action unreasonable: M.(K.) v.
M.(H.), at para. 98.
81 Mere delay is
insufficient to trigger laches under either of its two branches. Rather, the
doctrine of laches considers whether the delay of the plaintiff constitutes
acquiescence or results in circumstances that make the prosecution of the
action unreasonable. Ultimately, laches must be resolved as a matter of justice
as between the parties, as is the case with any equitable doctrine. The court
in exercising its equitable jurisdiction must always consider the
conscionability of the behaviour of both parties.
82
"Acquiescence" has various meanings. One meaning is that a plaintiff
stands by and watches the deprivation of her rights and does nothing. Another
is that after the deprivation of her rights and in the full knowledge of their
existence, a plaintiff delays, leading to an inference that her rights have
been waived: M.(K.) v. M.(H.), at para. 100
83 A plaintiff's
knowledge of her rights is critical to the notion of acquiescence; however,
this knowledge is to be measured by an objective standard so that the question
is whether it is reasonable for the plaintiff to be ignorant of her legal
rights given her knowledge of the underlying facts relevant to a possible legal
claim.
[144]
In Hunter, our Court of Appeal also
approved the Manitoba Court of Appeal’s decision in Rivergate
Properties Inc. which decision includes, starting at para. 38, an
explanation of why, in an appropriate situation, on the basis of the wording of
the statute itself, the equitable doctrines of laches and acquiescence can
provide immunity even where a statutory limitation period still has time to
run.
…
[152]
What is decisive here is that Weatherford chose not to comply
with a known limitations period and to sit on their rights; although
Weatherford describes this as a “prudent risk”, Weatherford’s behaviour is a
classic example of laches.
[153]
Although the time which elapsed between the end of the s. 3
limitation period and Weatherford’s filing of a lawsuit against these
applicants is not long, in all the circumstances, I have concluded that to
allow Weatherford to obtain the benefit of extending the statutory s. 3
limitation period would be inequitable.
81. Subsequently, in Weatherford
Canada Partnership v Addie, 2018 ABQB 571 (CanLII), in arriving at a
determination of costs payable by Weatherford, this Court awarded extensive
costs against Weatherford owing to its sitting on its rights to pursue its
claim following its decision to delay for business reasons, which the Court found
to be misconduct. This Court stated:
[67] More importantly,
the Withheld Records contained information that resulted in the successful
dismissal of the Action on the basis of the Limitations Act. Once
disclosed, it became clear to Artemis and Kaechele, and ultimately this Court
and the Court of Appeal, that the Action was commenced after the expiration
of the limitation period, following a conscious decision by Weatherford to
delay commencement for business reasons.
[68]
Therefore, I would characterize
Weatherford’s conduct as misconduct in the sense that Weatherford, either
erroneously or improperly, claimed privilege and strategically delayed
commencing the Action against Artemis and Kaechele to maximize its own long
term benefit. … While Weatherford’s conduct warrants deterrence, I would
not place it on the upper end of the scale of misconduct that justifies an
indemnity of costs, but conclude that enhanced costs aimed at deterring such
conduct are warranted.
82. In Genworth Financial Mortgage
v. Farooqi, 2019 ONSC 4729, a situation where the debtor did not have
the strong defences such as prejudice that the present Plaintiff relies on, the
Court found significant inaction by Genworth and that they acted in an unjust
manner in attempt to accrue interest. The Court accordingly reduced the amount
of interest owing. The Court stated at paragraph 15:
It is also unjust for
Mr. Farooqi to be penalized with interest accrued over several months
as a result of Genworth’s inaction in collecting the debt and enforcing
the writs. In giving effect to this factor, I am mindful of the debtor’s
obligation to pay, however, the consequences of inaction
by Genworth cannot be discounted. A creditor cannot simply rely
on years of its own inaction to accrue interest to the detriment of the
debtor. Mr. Farooqi does not currently own a property.
Except the passage of time, he has not identified any articulable prejudice
sufficient to justify a decision to deny leave.
83. It is fair and just that the
Defendants are barred from new judgment based on laches and acquiescence.
Related to this is the fundamental need for finality and certainty in legal
proceedings, preventing the indefinite extension of a judgment that the
Defendants have effectively abandoned. Courts recognize that litigants are
entitled to closure and should not be subjected to prolonged uncertainty where
no reasonable steps have been taken to enforce a judgment.
The Defendants’ Costs Claims Are Improper and Unenforceable. The Defendants are not entitled to many of the specific costs procured through an egregiously misrepresented bill of costs.
84. The Defendants’ application for a
new judgment is invalid because the costs they seek are inflated,
misrepresented, and lack supporting documentation. A court cannot order payment
for non-existent or improper costs, and the Defendants’ refusal to provide
details further undermines their claim.
85. The bill of costs prepared by Megan
McMahon, attached to the Plaintiff’s August 7, 2024 Affidavit, includes
fabricated hearing dates, charges for applications previously reversed in the
Plaintiff’s favor, and duplicated costs for matters where the Defendants were
denied costs. Despite repeated requests by the Plaintiff, counsel for the
Defendants refused to provide documentation to justify these claims, as
evidenced in the Plaintiff’s August 7, 2024 Affidavit.
86. Some of these misrepresented bill
of costs items include:
a) March
4, 2008 - $1500
Megan
McMahon claimed this cost despite that Master L.’s order for this amount
on this date was later set aside by a subsequent order by Justice S. upon
the Plaintiff’s appeal based on former counsel for the Defendants Taryn Burnett
having obtained an order ex-parte before Master L. and admitting she did
not have an affidavit of service for that application and failing to serve the
application on the Plaintiff with proper notice resulting in the Plaintiff
being unable to attend. Justice S.'s appeal order May 9, 2008 in the
Plaintiff’s favour specifically states this cost was set aside.
b) April
7, 2008 - $1500
Megan
McMahon claimed this cost despite that this hearing date before Justice
S. relates to the Plaintiff’s successful appeal before him for the matter
referred to in (a) in which former counsel for the Defendants Taryn Burnett
obtained an order through her misconduct. The Plaintiff’s appeal matter was
first before Justice S. on April 7, 2008 at which time he ordered costs
will be addressed and upon this appeal matter being finalized before him on May
9, 2008 Justice S. granted the Plaintiff’s appeal and ordered that the
March 4, 2008 order of Master L. and related costs were set aside.
c) April
21, 2009 - $1500
This
costs item is entirely fabricated. No hearing or application occurred on this date
and no such costs were awarded.
d)
December 11, 2013 - $1500
This
costs item is entirely fabricated. No hearing or application occurred on this date
and no such costs were awarded.
e) June
3, 2013 - $1500
The
Plaintiff was successful on this application in which she was granted leave to
file materials on this date. Megan McMahon had refused to consent to this
remedy in her prior email correspondence, resulting in this unnecessary
hearing.
f) August
29, 2013 - $1500
The
Defendants' application for costs to set a trial date, the purpose of
the
application on this date, was denied by the court.
g)
October 1, 2013 - $1500
This
application was for setting a timetable for exchange of expert reports, routine
for a trial. Megan McMahon's request for costs was not granted.
h) June
23, 2009 - $2500
Both
parties prepared briefs seeking undertakings from the other party. Success was
divided and no costs were granted.
i)
November 26, 2009 - $2500 On this date, the Plaintiff was successful in
obtaining, among other relief, an order compelling the Whidden Defendant to
attend for examination for discovery on the further amendments, which he had
refused to attend. Costs items related to this application were specifically
set out in this order for court reporter sitting fee and discovery attendance,
and no costs for this application the Plaintiff was successful on were awarded
to the Defendant as the bill of costs falsely claims.
j)
February 23, 2010 - $1250
There was
no such purported application with a costs award.
k)
December 11, 2009 - $800
This
costs item is entirely fabricated. No hearing or application occurred on this
date and no such costs were awarded.
l) June
17 & 18, 2013 – Summary judgment application the Plaintiff was successful
on.
The
Plaintiff was successful in defeating the Whidden summary judgment application,
with reasons issued on August 1, 2013. The decision shows that the Plaintiff
was successful on the main issues and states the parties may speak to costs yet
Megan McMahon’s bill of costs falsely claims there were no costs for this
application. The parties had not come to agreement on costs by the time of
trial and Megan McMahon was not at liberty to make up the false statement that
there were no costs for this application.
m) Court
of Appeal matters - $12,100
No
such Court of Appeal costs may be sought in a bill of costs for a Court of
Queen's Bench trial, yet Megan McMahon even specified double costs for this.
Further, Megan McMahon included in this category a costs item of $2500 for an
appeal restoral matter in which the Plaintiff was the successful party and
which a fee of $200, not $2500, was assessed for the restoral fee.
n) The
bill of costs duplicates costs items for applications on February 28, 2014,
June 23, 2009, and November 26, 2009, again including for applications in which
the Plaintiff was successful and for which no costs were awarded to either
party.
o) Megan
McMahon misled the trial judge to believe that the judges presiding for the
applications permitted costs for the applications for which no costs were
awarded, which is false as the orders stated whether costs were awarded or not.
p) Megan
McMahon was caught on some of her misrepresentations with the bill of costs
items during the costs proceeding on July 29, 2014, which reduced the costs
judgment by $839.80.
87. The trial judge Justice Charlene S.
Anderson compounded these issues by wrongly applying Column 2 costs instead of
Column 1, which was the appropriate column based on the $50,000 claim.
Additionally, she improperly allowed double costs. To be clear, the Plaintiff
does not argue these two costs issues in opposing the application for new
judgment or on the within Appeal; these issues are stated for context only. The
Plaintiff however does properly argue the specific costs issues, as identified
above, which were never adjudicated, as the record shows. This includes that
the Plaintiff was not allowed to fully respond to the misrepresented bill of costs
prepared by Megan McMahon, as shown by the trial costs hearing excerpt in the
Plaintiff’s Affidavit filed August 7, 2024 in which Justice Anderson told the
Plaintiff to “sit down” when she attempted to respond to the costs submissions
Megan McMahon made. Further, the Court of Appeal also did not rule on these
specific costs as the record shows.
88. Given the fabricated and
unsupported nature of the Defendants’ costs claims, the judicial errors in
awarding them, and the Defendants’ refusal to provide supporting documentation,
the application for new judgment should have been dismissed.
89. At the February 10, 2025 hearing of
the application for new judgment, Applications Judge Mattis denied the
Plaintiff procedural fairness when she refused to allow the Plaintiff to make
oral submissions on the specific costs, which had never been adjudicated.
90. Related to this, Applications Judge
Mattis improperly stated that there were no submissions made by the Plaintiff
about Megan McMahon’s conduct and that this, somehow, allowed Applications
Judge Mattis to ignore the serious issues as to Ms. McMahon’s misconduct with
costs and her improper involvement in this new judgment costs matter despite
that she was prohibited from involvement with costs in this Action by the
Alberta Court of Appeal. A judge can not deny a party procedural fairness in
making oral submissions about a matter and then say that there were no
submissions before her on the matter. In addition, Applications Judge Mattis
was also aware that the Plaintiff had made these submissions on this in her
reply brief and in her Affidavit filed August 7, 2024.
91. Further, a judgment is vitiated by
fraud upon the court. In the Supreme Court of Canada decision Landreville
v. Town of Boucherville, [1978] 2 S.C.R. 801, the Supreme Court
affirmed that fraud, dishonesty and bad faith vitiates and nullifies all
judgments, contracts and transactions whatsoever. At p. 814:
Fraud,
dishonesty, bad faith, extortion and bribery form a special category of causes
of nullity, which transends all others. Fraud unravels everything…once it is
proved, it vitiates judgments, contracts and all transactions whatsoever…
92. To be clear, the Plaintiff is not
rearguing any costs decision already made. While matters as to column costs and
double costs were adjudicated, unfairly, the Plaintiff did not raise them for
the application for new judgment or the within Appeal. However, the specific
costs issues itemized in the Plaintiff’s August 7, 2024 Affidavit have not been
dealt with, as the record shows.
93. As ruled by the Supreme Court of
Canada in Danyluk v. Ainsworth Technologies, 2001 SCC 44 at
paras. 24, 80 and 81, collateral attack is not made out where issues have not
been distinctly put in issue and directly determined. The Supreme Court further
affirmed that even if there is collateral attack, which is not present here, the
most important factor to consider is potential injustice of not hearing the
claims.
94. The law is clear: a party cannot
obtain or enforce costs to which it is not legally entitled, and they certainly
cannot do so where the amount is tainted by misrepresentation, denial of
natural justice, and a decade of acquiescence.
The
Defendant Corporation's invalid legal status renders the new judgment and writ
void and unenforceable. The Business Corporations Act, RSA 2000 states that
only an amalgamated corporation, and not an amalgamating corporation, may carry
on in legal proceedings or enforcements.
95. The 2014 judgment and writ in this
case are fundamentally flawed because they were issued for a corporate entity,
Peter G. Whidden Professional Corporation, that did not legally exist at the
relevant times. Courts require that judgments accurately identify the parties
involved for them to be enforceable (see Rule 13.13 (3) - Requirements for all
filed documents).
96. Here, the Defendants sought a new
judgment for a corporate entity that was not legally in existence when the
original judgment and costs order were issued, rendering their application
defective.
97. The Plaintiff’s affidavit filed
August 24, 2024, attaches at Exhibit “F” a corporate registry search confirming
that Peter G Whidden Professional Corporation ceased to exist on April 10,
2014. As a result, it was not a valid legal entity when the judgment was issued
on June 11, 2014 and the costs order was granted on July 29, 2014.
98. The Defendants and counsel have
made no attempt to correct names at the Court, for the writ of enforcement, or
for the personal property registry. Parties and their counsel have a
responsibility to ensure legal names are properly reflected. The accuracy of
party names in legal documents, including writs of enforcement, is crucial for
their validity and enforceability. Information must be accurately entered and
verified to ensure proper participation in the civil enforcement process. This
includes that information within a writ, such as alias names or creditor
particulars, must be completed by registering a status report.
99. The Defendants have not filed any
evidence with respect to what they say is an amalgamated corporation, which
they stated only after the Plaintiff raised the issue that the Peter G. Whidden
Professional Corporation is not a valid legal entity in her Affidavit filed
August 7, 2024 and in an interlocutory hearing on September 5, 2024 when
Applications Judge Mason told the Plaintiff to prematurely state her arguments
opposing the Application for new judgment.
100.
Because
Peter G Whidden Professional Corporation did not legally exist at the time of
these orders and there was no attempt by the Defendants or their counsel to
make corrections to the name, the judgment and writ are not properly
enforceable.
101.
Notably,
at the hearing for the application for new judgment on February 10, 2025, counsel
for the Defendants Ms. Larter did not argue this matter and merely stated that
this argument was in her brief [February 10, 2025 Transcript, p. 9, lines 27-30
re: Business Corporations Act].
102.
On
this matter, the Defendants’ brief argued that they rely on sections 186 (e)
and (f) of the Business Corporations Act, RSA 2000, c B-9, which states:
"(e)
a civil, criminal or administrative action or proceeding pending by or against
an amalgamating corporation may be continued to be prosecuted by or against the
amalgamated corporation;
(f)
a conviction against, or ruling, order or judgment in favour of or against, an
amalgamating corporation may be enforced by or against the amalgamated
corporation."
103.
These
Business Corporations Act provisions make clear that post-amalgamation,
only the amalgamated corporation retains the capacity to continue legal
proceedings or enforce judgments. The amalgamating corporation, i.e. Peter G.
Whidden Professional Corporation, having ceased to exist in 2014, cannot
initiate or continue legal actions. Therefore, the civil proceedings, including
the application for new judgment, were improperly proceeded upon by the defunct
corporation Peter G. Whidden and, consequently, the judgments, including the
new judgment obtained on February 10, 2025, are invalid and void. Similarly,
the defunct corporation can not take enforcement action.
104.
Only
the amalgamated corporation could have proceeded with civil proceedings or
enforcement and it is clear they have long been out of time, further to the
aforementioned significant issues, including, but not limited to, they are out
of time pursuant to section 11 of the Limitations Act.
106. Despite these provisions being clear, Applications Judge Mattis erred in altering these provisions to somehow allow Peter G. Whidden Professional Corporation (the amalgamating corporation) instead of Whidden Holdings Limited (the amalgamated corporation) to continue proceedings. It must also be noted that the Defendants' actual corporation name was never put in evidence by the Defendants for the new judgment application. Applications Judge Mattis erred in misinterpreting, or intentionally misstated to reach her desired outcome, the Business Corporations Act provisions.
107.
Despite
being aware of the amalgamation, the Respondents have consistently proceeded
under the name of the non-existent Peter G. Whidden Professional Corporation.
108.
Even
at the February 10, 2025, hearing, when counsel for the Defendants Ms. Larter
was asked by Applications Judge Mattis if she wished to put the judgment in the
amalgamated corporation’s name, Ms. Larter declined. This deliberate choice to
proceed under an invalid name further undermines the legitimacy of the new
judgment Order.
109.
Further,
an adverse inference should be found with respect to the Defendants acting in
an invalid legal capacity in securing judgments and writs, in addition to
failing to inform the Plaintiff that they had been acting in the capacity of a
defunct organization which was not a valid legal entity.
Issues
of the costs order of Applications Judge Mattis
110.
The Plaintiff successfully obtained necessary adjournments for
application for new judgment, all of which were unreasonably contested by Ms.
Larter and the Defendants. Given the passage of a decade preceding the
application for new judgment, the Plaintiff required additional time to locate
pertinent documents. Ms. Larter’s refusal to consent to the required
adjournments necessitated formal applications, resulting in unnecessary
prolongation of proceedings.
111.
Despite the Plaintiff’s success, Applications Judge Mattis refused to
award her costs for the adjournments, contrary to the principle that a
successful party is entitled to such costs, and egregiously granted costs of
the Plaintiff’s successful adjournments to the Defendants.
112.
Further, the Plaintiff was successful in obtaining a Special Chambers
hearing for the application for new judgment, further to Civil Practice Note 1
which mandates that hearings expected to take at least 20 minutes be scheduled
in Special Chambers. Ms. Larter unreasonably opposed a Special Chambers
hearing.
113.
Applications Judge Mattis erred in denying costs to the Plaintiff for her
successful application and egregiously supported Ms. Larter’s absurd statement
that a Special Chambers hearing was not required. Evidence that Applications
Judge Mattis knew that a Special Chambers hearing was required as it would take
more than 20 minutes is in the February 10, 2025 transcript which shows she in
fact expected the application to take 2 hours: [February 10, 2025 transcript of
proceedings, page 30, lines 29-30]: “Well, the parties took exactly 2 hours,
which is what I had suggested at the beginning of the hearing”.
114.
In addition, Ms. Larter unreasonably refused to consent to a one week
extension of the filing of the Plaintiff’s reply brief, causing the Plaintiff
to unnecessarily incur additional costs by application.
115.
Consistent with the Defendants’ egregious attempts to increase costs at
every opportunity throughout the history of the Action and proceedings related
to the application for new judgment itself, Ms. Larter and the Defendants sent
a purported letter of “offer” dated September 27, 2024 to the Plaintiff
demanding payment of $100,000, with the “offer” closing 13 days later on
September 30, 2024. The offer is clearly not genuine or realistic and was made
for the sole purpose of trying to unethically obtain more costs. This is made
clear in the purported “offer” letter which states that if the Plaintiff does
not give them $100,000 they will seek indemnity costs.
116.
In further egregiousness, Ms. Larter and the Defendants sought a
completely unwarranted and absurd costs multiplier of 4 and Applications Judge
Mattis, in her continued to efforts to appease the large law firm and the
Defendants, granted a 2.5 costs multiplier for applications the Plaintiff was
successful on, all of which Ms. Larter had unreasonably opposed.
117.
These issues highlight the Defendants’ and opposing counsel’s ongoing
excessive and unjustified monetary pursuits at every opportunity.
118.
In addition, Applications Judge Mattis ignored that Ms. Larter repeatedly
failed to comply with the Rules of Court and orders made by other judges,
including Ms. Larter’s collateral attacks on the orders relating to the
adjournments granted to the Plaintiff by other judges, all of which further
warranted that costs be awarded to the Plaintiff.
RELIEF
REQUESTED
110.
For
the foregoing reasons, the Plaintiff seeks that the Court grants the Appeals of
the Plaintiff to set aside Applications Judge Mattis’ substantive and costs Orders.
In addition, the Plaintiff seeks costs of these Appeals and costs for all
applications and hearings below.
ALL OF
WHICH IS RESPECTFULLY SUBMITTED THIS 13TH DAY OF MAY, 2025.
