Lawyer Abuse

June 30, 2021

Brief of the Plaintiff for Appeal of Review Office Matter

Below is the brief of the plaintiff filed on June 30, 2021 at the Court of Queen's Bench regarding the bill of costs matter, involving the Review Office's denial of the plaintiff's right to be heard and the tactical maneuvering by opposing defendants' counsel Perry Mack. This proceeding replaces the former equivalent proceeding explained in this previous post.

The plaintiff's application at the Court of Appeal to reopen certain matters for Court of Appeal action nos.1901-0078AC/1901-0179AC (some of these matters are referred to in the brief below) will be posted on this blog soon.

Background and Relief Sought

1. This is the Brief of the Plaintiff/Appellant for her appeal of the assessment officer’s bill of costs decision. The assessment officer denied the Appellant procedural fairness when he denied her the fundamental right to be heard and proceeded with the review with opposing counsel’s submissions only. The assessment of bill of costs matter should be returned to the Review Office for a new review where both parties have the opportunity to be heard. In the alternative, the Appellant seeks that the assessment officer’s bill of costs decision be set aside and/or that the assessment of bill of costs decision be stayed until her appeal reopen application for certain matters at the Court of Appeal and her appeal to the Supreme Court of Canada for Court of Appeal action nos.1901-0078AC/1901-0179AC are resolved.

2. This case is about egregious lawyer wrongdoing by the Respondents/Defendants Megan McMahon, Taryn Burnett, and their law firm Gowling WLG LLP (formerly Gowling Lafleur Henderson LLP, “Gowlings”). The Respondents maliciously harassed, defamed and defrauded the Appellant, unlawfully intruded upon privacy, and made misrepresentations to, and perpetrated fraud upon, the Court, among extensive further wrongdoing, for the purpose of personal and irrelevant attack on the Appellant in abuse of legal processes and outside their defendant client Dr. Peter Whidden’s interest. The Respondent lawyers committed this misconduct while acting as defence counsel in the underlying medical malpractice matter involving surgical injury to the Appellant.

3. In adjudication of the Appellant’s application for amendments and the Respondents’ application for striking, Court of Queen’s Bench Justice Michele Hollins egregiously and dishonestly misrepresented facts and failed to acknowledge the Appellant’s pleadings and evidence, or provide meaningful analysis. She further allowed outrageous excessive costs significantly departing from jurisprudence, and admitted she made the costs order arbitrarily, including without any legal justification applying the costs column from the underlying medical malpractice lawsuit, and admitting she intended for the Appellant to appeal her decision, among extensive further substantive and procedural errors. Justice Hollins did so while operating under serious conflicts of interest and apprehension of bias, including that at the same time of Justice Hollins’ assignment as case management judge to this case in November 2017, Respondents’ counsel Perry Mack advised by letter December 1, 2017 that Justice Hollins was currently a Director of the Canadian Bar Foundation (CBF) and the Canadian Bar Law for the Future Fund (LFF) for which the Respondent Gowlings is legal counsel.

4. Subsequently on appeal, the appeal panel headed by Justice Marina Paperny erred in failing to adjudicate, or even acknowledge, the Appellant’s most important appeal grounds, facts, argument and supporting evidence, failed to adjudicate matters on accepted legal grounds, and failed to allow the Appellant the minimum mandatory time for oral argument submissions as acknowledged by the Court of Appeal on October 15, 2020 [Appellant June 23, 2021 Affidavit]. Some of the serious arguable appeal issues to be addressed in the Appellant’s respective appeal reopen application and Supreme Court of Canada leave application include:

(a) Justice Paperny purported that the Appellant had not proven her claims and associated this with the scale of costs, despite that there is no opportunity of testing of claims, or adjudication of them, on an amendments application or striking application which were the applications before Justice Hollins. Both type of applications are based on the pleadings only (the wording/facts of the allegations in the statements of claim and elements of each cause of action) and not adjudication of the claims. There was no adjudication whatsoever on the merits of the claims in this lawyer misconduct case; testing on merits of claims is only done at trial or on a summary judgment application. A trial in this matter remains a requirement to properly consider the Appellant’s claims and the damages she suffered which have never been dealt with. Accepted legal principles must be consistently applied to all cases, including where a party is self-represented.

(b) Justice Paperny failed to acknowledge many of the Appellant’s important distinct appeal grounds. She ignored them as repetitious and casually skipped them to be more, as she said, “expedient”. Some of these ignored significant appeal grounds involve all of the issues relating to Justice Hollins’ conflicts of interest, her serious errors and admissions as to costs, and failure to apply the principles in the Supreme Court of Canada’s decision Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26 which affirms the court’s responsibility through its inherent jurisdiction to sanction and punish deliberate, malicious conduct and abuse of process by lawyers, conduct which is well-evidenced in the present case. Justice Paperny further entirely failed to mention the intrusion upon seclusion appeal grounds regarding the Respondents Taryn Burnett and Gowlings unlawfully obtaining the Appellant’s credit report, an offence they were already found guilty of committing in the unrelated privacy breach decision having parallel facts, Gowling WLG (Canada) LLP (Re), 2020 CanLII 33322 (AB OIPC).

(c) Justice Paperny only allowed the Appellant 33 minutes of oral argument time instead of the mandated 45 minutes [Affidavit], which greatly deprived the Appellant of her right to have her appeal fully heard and adjudicated. The facts surrounding the criticality of the Appellant’s oral argument submissions are well-known: the case management officer Laurie Baptiste had told the Appellant that any additional submissions she wished to make would have to be made in oral argument before the appeal panel after Ms. Baptiste unfairly refused, at the request of Mr. Mack, to file the Appellant’s amended factum containing critical additional facts, argument and case law, despite that the Appellant submitted her amended factum according to the directed deadline of October 1, 2019, albeit by email and with hardcopies prepared the next morning, and according to the directed 42-page factum limit for both parties.

(d) The Appellant’s concerns with Justice Paperny’s assignment to the appeal panel for appeal action nos. 1901-0078AC/1901-0179AC, including judge shopping for her assignment by Respondents’ counsel Mr. Mack and the Respondents, are well-documented in the Appellant’s filed Court of Appeal materials. They judge shopped for Justice Paperny to be assigned to the appeal panel and she subsequently was assigned to the appeal panel. Evidence of this judge shopping is contained in the Appellant’s Court of Appeal September 7, 2020 Affidavit, including exhibited email correspondence the prior year on July 2 & 3, 2019 with the case management officer Laurie Baptiste and Mr. Mack, in which the Appellant stated her concern that Mr. Mack was attempting to have Justice Paperny assigned to the appeal panel.

5. Subsequently, the Court of Queen’s Bench Review Office denied the self-represented Appellant procedural fairness when it denied her right to be heard for the assessment of bill of costs when it heard submissions from Mr. Mack only, failed to accommodate the Appellant’s scheduling requirements and unique circumstances, and indulged all of opposing counsel Mr. Mack’s unfair unilateral scheduling demands. Further, the Appellant’s appeal reopen application for specific issues at the Court of Appeal and her appeal at the Supreme Court of Canada should be resolved before any determination of costs.

The Facts

6. The majority of the facts of the Appellant’s present application and appeal of the assessment of bill of costs decision are set out in the email correspondence dated February 18 – March 16, 2021 between the Appellant, Respondents’ counsel Mr. Mack, and the Court of Queen’s Bench Review Office [Appellant June 23, 2021 Affidavit, “Affidavit”].

7. Mr. Mack unilaterally scheduled a hearing date of March 16, 2021 for the assessment of bill of costs without the Appellant’s consent or knowledge of his chosen hearing date or even providing her with a copy of his request to the Review Office to schedule the appointment. Mr. Mack further ignored the Appellant’s availability and unique circumstances when scheduling, including that she had an important prior scheduled appointment on Mr. Mack’s chosen hearing date, that she required more time to prepare for the hearing, and that her Court of Appeal reopen application and Supreme Court of Canada appeal remedies are extant. The Appellant requested a hearing date in June, which was available for a hearing date in the list of dates Mr. Mack was given by the Review Office, but Mr. Mack unreasonably refused to cooperate in the scheduling of the appointment and refused to accommodate the Appellant’s needs and stated he opposed any adjournment [Affidavit]. This is in contrast with the Appellant’s routine courteous scheduling of hearing dates in cooperation with Mr. Mack’s availability [Affidavit].

8. The Review Office denied the self-represented Appellant procedural fairness when it denied the Appellant an opportunity to be heard, allowed all of Mr. Mack’s unilateral unfair scheduling demands, and showed no regard for the Appellant’s availability and circumstances. This includes that the Review Office:

(a) Allowed the hearing date of March 16, 2021 that Mr. Mack scheduled without the Appellant’s consent or knowledge of the date Mr. Mack chose, or even copying the Appellant on his correspondence to the Court scheduling the appointment [Affidavit].

(b) Proceeded with the assessment of costs hearing on Mr. Mack’s chosen date of March 16, 2021, despite that the Appellant was not available on that date due to an important prior scheduled appointment on the same date and that she provided evidence of same on March 10, 2021 as requested by the Review Office [Affidavit].

(c) Refused to consider the Appellant’s requested hearing dates, that she did not have sufficient time to prepare materials and submissions and, further, that her appeal reopen application for certain matters at the Court of Appeal and her Supreme Court of Canada remedies are extant, both of which should be resolved first.

(d) After receiving and confirming receipt of the Appellant’s submitted evidence on March 10, 2021 of her conflicting March 16, 2021 appointment, the Review Office emailed the parties on March 15, 2021 advising of next available hearing dates. Despite this appearance of rescheduling the March 16, 2021 hearing date, after Mr. Mack replied to the email and complained and demanded that the hearing proceed on March 16, 2021 and that he continued to oppose an adjournment, the Review Office egregiously appeased him by emailing the parties on March 16, 2021 (the same day of the original hearing date that was to be rescheduled) advising the hearing would proceed on March 16, 2021. The Review Office wrote in its March 16, 2021 email [Affidavit]:

“Your hearing is scheduled for March 16, 2021 @ 1:30 p.m. As you have indicated you will not be in attendance at this hearing, please note that you will be notified of the Review Officer's decision after the scheduled hearing time and he has heard submissions from Mr. Mack.”

(e) After the hearing proceeded on March 16, 2021 without the Appellant, the Review Office scheduled a further hearing date unreasonably peremptory on the Appellant at Mr. Mack’s insistence and despite that it was not possible for the Appellant to attend the prior scheduled date. The further hearing date was again set without regard for the Appellant’s availability and circumstances, and submissions were heard from Mr. Mack only.

(f) The transcript of the assessment hearing [Affidavit] shows that the assessment officer did not consider or make any mention of the Appellant’s circumstances, despite that they were in the lengthy email thread with the Review Office. The transcript further shows that the assessment officer made a once-sentence decision without sufficient reasoning required for meaningful appellate review.

9. It should be noted that the Appellant was unable to attach to the appeal record for the within appeal “The request to the assessment officer for the appointment”, a required part of the appeal record as stated on Notice of Appeal Form 46, because Mr. Mack did not copy the Appellant when he made his request to the assessment officer for the appointment and, further, he refused to provide it to the Appellant when she asked for it in February 22 & 23, 2021 correspondence [Affidavit]. To be clear, the filed assessment officer appointment was sent from the Court of Appeal to the Appellant after Mr. Mack requested the appointment, but Mr. Mack did not provide to the Appellant his actual request for the appointment.

The Law and Argument

10. The Review Office assessment officer failed to follow the principles of procedural fairness in the conduct of the review of the bill of costs and, therefore, the standard of review to be applied is correctness.

11. The assessment officer denied the Appellant the most important principal of procedural fairness, the right to be heard, when he denied her the right to be heard on the bill of costs and heard submissions from Mr. Mack only. Further, the assessment officer proceeded with Mr. Mack’s unilateral and unfair scheduling demands, and without regard for the Appellant’s circumstances. These issues give the appearance of the assessment officer’s determination to move forward with his judgment.

12. Appellate case law holds that depriving a party of its opportunity to make submissions and giving the appearance of predetermining issues requires appellate intervention:

Brown v. Canada (Attorney General), 2013 ONCA 18 at paras. intro and 53: “He effectively deprived the defendant of an opportunity to make submissions on whether the causes of action in breach of fiduciary duty and negligence, as framed by the case management judge, were viable…I do not think it can be safely said that the respondent had an adequate opportunity to respond.”
Nazarewycz v. Dool, 2009 ABCA 70 at paras. 76 and 77: “These remarks and directions, without notice or opportunity for argument, gave rise to an appearance that he was predisposed against the appellant and his counsel, and had prejudged certain issues…It seems evident that the chambers judge had made up his mind and had determined to move forward with his judgment, including dealing with the matters that had never been raised and with respect to which counsel had no opportunity to make submissions.”

13. The Supreme Court of Canada and the Federal Court of Appeal have both recognized the importance of employing a procedurally fair process and accommodating self-represented persons in matters of scheduling in order to strike a balance with resolving matters expeditiously, which the assessment officer failed to apply in the present case. The Statement of Principles on Self-represented Litigants, endorsed by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23, promotes access to justice for self-represented persons, and states in part:

Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.

Access to justice for self-represented persons requires all aspects of the court process to be…convenient and accommodating. …Scheduling should take into account the special challenges and needs of self-represented persons.

Similarly, in Wagg v. Canada, 2003 FCA 303, the Federal Court of Appeal stated at para. 61:

…Trial judges have a responsibility, particularly when dealing with unrepresented litigants, to strike a balance between the desire to resolve matters expeditiously, and the need to adjudicate cases in a principled manner that employs a fair process and preserves the appearance of justice.

14. A hearing cannot be made peremptory upon a party unless there is very good reason, which does not exist in the present case. The Appellant simply sought a hearing date that both parties could attend for the assessment of bill of costs, and the assessment officer denied this basic fundamental right.

15. Further, the assessment officer’s one-sentence decision failed to give sufficient reasons. Sufficient reasons are required for meaningful appellate review: Carbone v. McMahon, 2017 ABCA 384 at para. 12.

16. It should also be noted that appeasing a lawyer’s unfair unilateral scheduling demands that oppress a self-represented person and appeasing lawyer sense of entitlement, as in the present case, undermines the public’s confidence in the administration of justice. The ease with which Mr. Mack merely emails or telephones court staff, as in the present matter wherein Mr. Mack complained and demanded the Review Office reverse its rescheduling of the hearing date back to his demanded date after it advised of other hearing dates, and previously, with Mr. Mack’s communication urging the Court of Appeal case management officer Ms. Baptiste to refuse the Appellant’s amended factum leading to a miscarriage of justice, should be cause for concern by all court participants.

17. The Appellant does not propose to argue in the current appeal the details of Mr. Mack’s prepared bill of costs because the Appellant did not have the opportunity to do so as she was entitled in the first instance before the Review Office. This argument should be made upon return of the assessment of bill of costs matter for a new review by the Review Office.

18. With respect to the alternative stay application, there are serious issues arguable on appeal, the Appellant would suffer irreparable harm absent the stay, and the balance of convenience favours granting the stay. The appeal issues involve procedural fairness, a principle of fundamental justice, which favours granting a stay. With respect to a stay pending the Supreme Court of Canada outcome, the appeal issues have sufficient public importance.

19. Granting the self-represented Appellant her requested relief in this matter of denied procedural fairness is consistent with the Statement of Principles on Self-represented Litigants endorsed by the Supreme Court of Canada in Pintea requiring that judges “do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.”

20. It should be noted that the appeal of the assessment officer’s decision was originally made to the Court of Appeal due to misunderstandings by both the Appellant and the Court of Appeal staff which advised the Appellant that the appeal process was to appeal to that Court in the circumstances [Affidavit]. The Appellant subsequently understood at the Court of Appeal hearing that the correct appeal process is to appeal to the Court of Queen’s Bench and, accordingly, the within appeal proceeding replaces the withdrawn Court of Appeal proceeding. The Court of Appeal directed that both parties would bear their own costs for that Court of Appeal proceeding [Affidavit].

April 29, 2021

More scorched earth tactics by defendants' counsel Perry Mack and defendant lawyers McMahon, Burnett and Gowlings

The plaintiff filed an application/appeal on April 29, 2021 at the Court of Appeal to deal with unfair handling of bill of costs prepared by opposing defendants' counsel Perry Mack, and his and the defendants' ongoing scorched earth tactics. The Court of Queen's Bench Review Office's failure to reasonably accommodate the plaintiff and her scheduling needs and its appeasement of Mr. Mack's lawyer sense of entitlement are also issues here.

This is the latest development in this lawyer misconduct case against defendant lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings, on which this blog reports. The plaintiff's application to reopen/reargue certain parts of her appeal at the Court of Appeal, and her appeal of other parts to the Supreme Court of Canada, are still be to be resolved.

Below is the filed memorandum of argument of the plaintiff for the bill of costs appeal at the Court of Appeal.

Update May 19, 2021: The Court of Appeal Justice advised that the Court of Appeal provided incorrect procedural instructions to the applicant (plaintiff) for this application to appeal the assessment of bill of costs decision, and that it does not have jurisdiction for this matter. The appeal will be re-prepared for the Court of Queen's Bench.

Introduction and Relief Sought

1. This is the Memorandum of Argument of the Applicant/Appellant/Plaintiff for her application and appeal seeking that the assessment of bill of costs decision be set aside or, in the alternative, that enforcement of the assessment of bill of costs decision be stayed until the Applicant’s appeal to the Supreme Court of Canada for within Court of Appeal action nos.1901-0078AC/1901-0179AC is resolved.

2. This case is about egregious lawyer wrongdoing by the Respondents/Defendants Megan McMahon, Taryn Burnett, and their law firm Gowling WLG LLP (formerly Gowling Lafleur Henderson LLP, “Gowlings”). The Respondents maliciously harassed, defamed and defrauded the Applicant, unlawfully intruded upon privacy, and made misrepresentations to, and perpetrated fraud upon, the Court, among extensive further wrongdoing, for the purpose of personal and irrelevant attack on the Applicant in abuse of legal processes and outside their client’s interest. The Respondent lawyers committed this misconduct while acting as defence counsel in the underlying medical malpractice matter involving surgical injury to the Applicant.

3. In adjudication of the Applicant’s application for amendments and the Respondents’ application for striking, Court of Queen’s Bench Justice Michele Hollins egregiously and dishonestly misrepresented facts and failed to acknowledge the Applicant’s pleadings and evidence, or provide meaningful analysis. She further allowed outrageous excessive costs significantly departing from jurisprudence, and admitted she made the costs order arbitrarily, including without any legal justification applying costs column from the underlying medical malpractice lawsuit, and admitting she intended for the Applicant to appeal her decision. Justice Hollins did so while operating under serious conflicts of interest and apprehension of bias, including that at the same time of Justice Hollins’ assignment as case management judge to this case in November 2017, Respondents’ counsel Mr. Mack advised by letter December 1, 2017 that Justice Hollins was currently a Director of the Canadian Bar Foundation (CBF) and the Canadian Bar Law for the Future Fund (LFF) for which the Respondent Gowlings is legal counsel.

4. Subsequently on appeal, the appeal panel headed by Justice Marina Paperny erred in failing to adjudicate, or even acknowledge, the Applicant’s most important appeal grounds, facts, argument and supporting evidence, failed to adjudicate the matters on accepted legal grounds, and failed to allow the Applicant the minimum mandatory time for oral argument submissions as acknowledged by this Court on October 15, 2020 [Applicant Affidavit May 7, 2021 - “Affidavit”]. For example, Justice Paperny purported that the Applicant had not proven her claims, despite that there is no opportunity of testing of claims, or adjudication of them, on an amendments application or striking application which were the applications before Justice Hollins. Both type of applications are based on the pleadings only (the wording/facts of the allegations in the statements of claim and elements of each "cause of action") and not adjudication of the claims. There was no adjudication whatsoever on the merits of the claims in this lawyer misconduct case; testing on merits of claims is only done at trial or on a summary judgment application. The Applicant’s concerns with Justice Paperny’s assignment to the appeal panel, including judge shopping for her assignment by opposing counsel Mr. Mack and the Respondents/Defendants, are well documented in the Applicant’s filed materials [September 7, 2020 Affidavit]. Further, the facts surrounding the criticality of the Applicant’s oral argument submissions are well known: the case management officer Laurie Baptiste had told the Applicant that any additional submissions she wished to make would have to be made in oral argument before the appeal panel after Ms. Baptiste refused to file the plaintiff's amended factum containing critical additional facts, argument and case law at the request of opposing Respondents/Defendants counsel Perry Mack, despite that the plaintiff submitted her amended factum according to the directed 42-page factum limit for both parties and on the directed deadline of October 1, 2019, albeit by email and with hardcopies prepared the next morning.

5. The Court of Queen’s Bench Review Office denied the self-represented Applicant procedural fairness when it failed to accommodate her scheduling requirements and unique circumstances for the assessment of bill of costs hearing and indulged all of opposing counsel Mr. Mack’s unfair unilateral scheduling demands. The Applicant’s appeal to the Supreme Court of Canada should be resolved before any determination of costs.

The Facts

6. The majority of the facts of the Applicant’s present application and appeal of the assessment of bill of costs decision are set out in the email correspondence dated February 18 – March 16, 2021 between the Applicant, opposing counsel Mr. Mack, and the Court of Queen’s Bench Review Office [Affidavit].

7. Mr. Mack unilaterally scheduled a hearing date of March 16, 2021 for assessment of bill of costs without the Applicant’s consent or knowledge, or consideration of her unique circumstances including that her Supreme Court of Canada appeal remedy is extant, that she had an important prior scheduled appointment on Mr. Mack’s chosen hearing date, and that she required more time to prepare for the hearing. The Applicant requested a hearing date in June, which was available for a hearing date in the list of dates Mr. Mack was given by the Review Office, but Mr. Mack unreasonably refused to cooperate in the scheduling of the appointment and accommodate the Applicant’s needs and stated he opposed any adjournment.

8. The Court of Queen’s Bench Review Office denied the self-represented Applicant procedural fairness when it allowed all of opposing Respondents/Defendants counsel Perry Mack’s unilateral unfair scheduling demands for the assessment of bill of costs, without regard for the Applicant’s availability and circumstances. This procedural unfairness includes that the Court of Queen’s Bench Review Office:

(a)   Allowed the hearing date of March 16, 2021 that Mr. Mack scheduled without the Applicant’s consent or knowledge, or consideration of her scheduling requirements.
(b)   Proceeded with the assessment of costs hearing on Mr. Mack’s chosen date of March 16, 2021, despite that the Applicant was not available on that date due to an important prior scheduled appointment on the same date and that she provided evidence of same as requested by the Review Office.
(c)   Refused to consider the Applicant’s requested hearing dates, that she did not have sufficient time to prepare materials and submissions and, further, that her appeal of the Court of Appeal matters was still going before the Supreme Court of Canada which should be resolved first.
(d)   After receiving the Applicant’s submitted evidence on March 10, 2021 of her conflicting appointment, the Review Office emailed the parties on March 15, 2021 advising of next available hearing dates. Despite this appearance of rescheduling the March 16, 2021 hearing date, after Mr. Mack replied to the email and complained and demanded that the hearing proceed on March 16, 2021 and that he continued to oppose an adjournment, the Review Office egregiously appeased him by emailing the parties on March 16, 2021 (the same day of the hearing that was to be rescheduled) advising the hearing would proceed on March 16, 2021. The Review Office wrote:

“Your hearing is scheduled for March 16, 2021 @ 1:30 p.m. As you have indicated you will not be in attendance at this hearing, please note that you will be notified of the Review Officer's decision after the scheduled hearing time and he has heard submissions from Mr. Mack.”

(e) After the hearing proceeded on March 16, 2021 without the Applicant, the Review Office scheduled a further hearing date unreasonably peremptory on the Applicant at Mr. Mack’s insistence and despite that it was not even possible for the Applicant to attend the prior scheduled date. The further hearing date was again set without regard for the Applicant’s availability and circumstances.

The Law and Argument

9. The Court of Queen’s Bench Review Office breached procedural fairness when it denied the Applicant an opportunity to be heard on the bill of costs and proceeded with Mr. Mack’s unilateral and unfair scheduling demands, with the appearance of determination to move forward with its judgment. Depriving a party of its opportunity to make submissions and giving the appearance of predetermining issues requires appellate intervention:

Brown v. Canada (Attorney General), 2013 ONCA 18 at paras. intro and 53: “He effectively deprived the defendant of an opportunity to make submissions on whether the causes of action in breach of fiduciary duty and negligence, as framed by the case management judge, were viable…I do not think it can be safely said that the respondent had an adequate opportunity to respond.”
Nazarewycz v. Dool, 2009 ABCA 70 at para. 76 and 77: “These remarks and directions, without notice or opportunity for argument, gave rise to an appearance that he was predisposed against the appellant and his counsel, and had prejudged certain issues…It seems evident that the chambers judge had made up his mind and had determined to move forward with his judgment, including dealing with the matters that had never been raised and with respect to which counsel had no opportunity to make submissions.”

10. The Supreme Court of Canada and the Federal Court of Appeal have both recognized the importance of employing a fair process and accommodating self-represented persons in matters of scheduling in order to strike a balance with resolving matters expeditiously. The Statement of Principles on Self-represented Litigants, endorsed by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23, promotes access to justice for self-represented persons, and states in part:

Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.

Access to justice for self-represented persons requires all aspects of the court process to be…convenient and accommodating. …Scheduling should take into account the special challenges and needs of self-represented persons.

Similarly, in Wagg v. Canada, 2003 FCA 303, the Federal Court of Appeal stated at para. 61:

11. Appeasing a lawyer’s unfair unilateral scheduling demands that oppress a self-represented person and appeasing lawyer sense of entitlement, as in the present case, undermines the public’s confidence in the administration of justice. The ease with which Mr. Mack merely emails or telephones court staff, as in the present matter wherein Mr. Mack complained and demanded the Review Office reverse its rescheduling of the hearing date back to his demanded date after it advised of other hearing dates, and previously, with Mr. Mack’s communication urging Ms. Baptiste at this Court to refuse the Applicant’s amended factum leading to a miscarriage of justice, should be cause for concern by all court participants.

12. While the Applicant does not propose to argue in the current application and appeal the details of Mr. Mack’s sought bill of costs, because the Applicant did not have the opportunity to do so as she was entitled in the first instance before the Review Office, the Applicant advises that one example requiring her submissions is the issue of Mr. Mack’s arbitrary picking of Court of Appeal matter column costs which are not warranted.

13. Granting the self-represented Applicant her requested relief in this matter of denied procedural fairness is consistent with the Statement of Principles on Self-represented Litigants endorsed by the Supreme Court of Canada in Pintea requiring that judges “do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.”

October 16, 2020

Court of Appeal denied Plaintiff/Appellant procedural fairness during September appeal hearing; confirmation finally provided by Court

The Court of Appeal appeal panel, headed by Justice Marina Paperny, that heard the plaintiff/appellant's appeals and egregiously erred in its September appeal determination, also deprived the plaintiff of procedural fairness during the appeal hearing in this lawyer misconduct lawsuit against lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings.

This procedural unfairness includes that the appeal panel told the plaintiff she was "past her allotted time" for appeal oral submissions just 33 minutes into her oral submissions. The Rules of Court in fact provide for 45 minutes of oral submission time. Readers of this blog will be familiar with the case management officer Laurie Baptiste's egregious refusal to file the plaintiff's amended factum, at opposing counsel Perry Mack's request, despite that the plaintiff submitted the amended factum in accordance with the court's deadline and page-limit instructions, and that this necessitated that the plaintiff have every opportunity to fairly present her appeal submissions, including oral submissions.

The plaintiff had requested confirmation multiple times from the Court of Appeal, since October 1, that the appeal panel misinformed the plaintiff she was past her allotted time for oral submissions just 33 minutes into her submissions, despite that she still had crucial time remaining. The court finally provided confirmation of the timing yesterday, October 15.

This procedural unfairness is one of the many issues concerning the appeal panel's treatment of the self-represented plaintiff. As previously reported in this blog, after Justice Paperny refused to recuse herself from the appeal panel, she then bypassed the plaintiff's already filed application for permission to appeal her recusal, and then proceeded to rush a full appeal decision which egregiously failed to acknowledge the many distinct grounds of appeal in the plaintiff's factum and other materials and submissions. This includes that Justice Paperny egregiously stated she did not review the plaintiff's many grounds of appeal because, she said, she was being "expedient". Review of all of the plaintiff's grounds of appeal are critical to fairly adjudicate the serious errors made by Court of Queen's Bench judge Justice Michele Hollins.

While the plaintiff is addressing many of Justice Paperny's "errors" at the Supreme Court of Canada, she is also addressing some of the matters that still need to be addressed at the Court of Appeal, in accordance with the court's remedies and Rules. Watch this blog which shall be updated with the plaintiff's filed materials.

September 16, 2020

Court of Appeal Justice Marina Paperny rushes decision to "beat the timing" of the Plaintiff's application seeking permission to appeal Justice Paperny's refused recusal; Justice Paperny's decision is filled with errors

Update September 17: Click here to read the plaintiff's appeal factum with her important grounds in the "Grounds of Appeal" section at paragraphs 68-92, that Justice Marina Paperny falsely and egregiously stated were too repetitive to review and that it was more "expedient" not to.

The enormity of unfairness surrounding the self-represented plaintiff's appeals in the lawyer misconduct lawsuit against Gowlings lawyers Megan McMahon and Taryn Burnett is shocking.

The plaintiff Carbone filed an application seeking the recusal of Justice Marina Paperny on September 4, 2020, after she learned on September 3 that Justice Paperny was on the appeal panel for her appeals #1901-0179AC/1901-0078AC. The plaintiff's further recusal application materials were filed as soon as possible, on the morning of September 8. The recusal application was necessary given the serious apprehension of bias raised over many years involving Justice Paperny in both the lawyer misconduct case and the underlying medical malpractice case.

Click here to read the plaintiff's application seeking recusal of Justice Paperny, which contains many of the issues concerning apprehension of bias.

Justice Paperny gave her oral decision refusing recusal on September 8. In doing so, she ignored important facts raising apprehension of bias, made errors, and was extremely defensive. It was then necessary for the plaintiff to file an application for permission to appeal to a panel Justice Paperny's oral decision refusing recusal. The purpose of the permission to appeal application is for Justice Paperny's refused recusal to be reviewed by a panel of the court with a view to replacing her with a new appeal panel member so that the full appeal can be adjudicated fairly.

After the plaintiff already submitted her application document and affidavit on September 10, 2020 for her application seeking permission to appeal to a panel Justice Marina Paperny's oral decision refusing recusal, and after she advised her memorandum of argument for this application was forthcoming, Justice Paperny egregiously rushed to get a full appeals decision out before the Applicant's application could be adjudicated.

Justice Paperny's sheer desperation in attempting to beat the timing of the plaintiff's application seeking permission to appeal her refused recusal decision is absolutely shocking. It is not even possible for a full appeals decision with approximately 20 grounds of appeal, due to the extensive serious errors of Justice Michele Hollins, to be fully and fairly adjudicated in one week.

Click here to read the plaintiff's Notices of Appeal setting out the significant errors made by Justice Michele Hollins at the Court of Queen's Bench.

Click here to read the plaintiff's amended factum with the facts, grounds of appeal, argument and some of the case law relied on. It is also egregious that the appeal panel headed by Justice Paperny refused to allow the plaintiff sufficient time to read portions of this amended factum that were not in her original factum. Related to this, the facts of the Court of Appeal case management officer Laurie Baptiste's egregious misconduct are well known: Laurie Baptiste refused to file the plaintiff's amended factum containing critical additional facts, argument and case law at the request of opposing Respondents/Defendants counsel Perry Mack, despite that the plaintiff submitted her amended factum according to the directed 42-page factum limit for both parties and on the directed deadline of October 1, 2019, albeit by email with hardcopies prepared the next morning. The amended factum is required for informed and fair adjudication of the appeals.

It is also shocking that Justice Paperny rushed to get a full appeals decision out before the permission to appeal application could be heard, given the plaintiff has evidence that Justice Paperny knew the plaintiff's application seeking permission to appeal was in progress. For example, the plaintiff has correspondence dated September 15 from Justice Paperny about the page limit for the memorandum of argument for the application. This correspondence states: "Justice Paperny has considered your request to file a memorandum of up to 13 pages in relation to your application for permission to appeal the decision denying your recusal application. Your request is granted on the condition that the respondents also be permitted to file a reply memorandum of up to 13 pages, if required."

When the plaintiff learned on September 16 the full appeals decision was rushed for release the next day, the plaintiff submitted her memorandum of argument also on September 16, which shall be amended with further facts and argument given the circumstances.

Below is the plaintiff's (applicant) memorandum of argument filed September 16, supplementing her application and affidavit already submitted on September 10, seeking permission to appeal to a panel Justice Paperny's refused recusal from the appeal panel. As stated in the memorandum of argument, below, the plaintiff shall amend it with facts and argument given the emergency basis on which it was filed. These application materials were filed in advance of any appeal decision details being released or made known.

Update September 17:

There are significant "errors" in the appeal decisions headed by Justice Marina Paperny and they will be appealed to the Supreme Court of Canada. The level of failure to fairly and transparently adjudicate the extensive errors made by Justice Michele Hollins is beyond egregious. Justice Paperny, as with all of her decisions when it comes to this plaintiff in the lawyer misconduct case and underlying medical malpractice case, refused to state the grounds of the appeal, facts, argument and case law which must be done in order to fairly adjudicate any appeal. This is in fact one of the grounds in the plaintiff's application seeking her recusal. It is more than clear the recusal was required in the interest of justice.

For example, Justice Paperny said there are 26 grounds of appeal so she will not go through them because it is "easier" for her not to. This is egregious. The basis of an appeal is the grounds. They state the errors the lower court, Justice Hollins, made. Justice Paperny knows full well that the plaintiff's grounds of appeal, supported by the lower court record, argument, evidence and case law, are solid so she failed to state the grounds of the appeal.

Click here to read the plaintiff's appeal factum with the "Grounds of Appeal" section at paragraphs 68-92, outlining the distinctly different and important grounds that Justice Paperny falsely and egregiously stated were too repetitive to review and that it was more "expedient" not to. The facts and argument sections elaborate on these grounds.

Justice Paperny further twists the truth and the law when she purports the claims were not proven in order to help Justice Hollins out of her web of falsehoods. It is absolutely false that there was any adjudication of the plaintiff's claims. There is no such opportunity of testing of claims, or adjudication of them, on an amendments application or striking application. Justice Paperny knows that the appeal before her is based on the errors in Justice Hollins' adjudication of the plaintiff's application to amend her statements of claim to add further claims and particulars, and the defendants' application for striking. Both type of applications are based on the pleadings only (the wording/facts of the allegations in the statements of claim and elements of each "cause of action") and not adjudication of the claims. There was no adjudication whatsoever on the merits of the claims in this lawyer misconduct case; testing on merits of claims is only done at trial or on a summary judgment application. It is also significant that the plaintiff filed extensive evidence, which both Justice Hollins and Justice Paperny egregiously ignored, while the Respondents had no evidence whatsoever.

Justice Hollins, and subsequently Justice Paperny, desperately sought to stop the case before it could go to trial, at which they know the plaintiff's claims of lawyer misconduct, and more, will be proven. Indeed, Gowlings lawyers Megan McMahon and Taryn Burnett's serious misconduct does reflect poorly on the justice system. Justice Paperny and Justice Hollins have no right to suppress the truth, and everyone knows anyway. These judges need to re-examine why they are judges - to serve the public, not guilty lawyers who give their profession a bad name. The court must uphold its responsibility through its inherent jurisdiction to sanction and punish deliberate, malicious conduct and abuse of process by lawyers. The Supreme Court of Canada made this responsibility clear in its recent seminal decision Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26.

Justice Paperny thinks no one will notice or care that she has debased the law and ignored the appeal grounds because the plaintiff is self-represented. She has a history of disdain for self-represented persons. While Justice Paperny may not care what the public, her peers, and the legal community think of her, she should at least have regard for the fact that her actions reflect upon the justice system and erode the public's confidence in the administration of justice.

Given Justice Paperny's tactical maneuvering noted above, and other conduct issues, it will also be necessary for the plaintiff to file a complaint with the Canadian Judicial Council, which shall be posted on this blog.

1. This is the initial version of the Memorandum of Argument of the Applicant/Appellant/Plaintiff seeking permission to appeal to a panel the Honourable Justice Marina Paperny’s oral decision dismissing the Applicant’s application seeking her recusal from the appeal panel for her appeals #1901-0179AC/1901-0078AC. The Applicant shall file an amended Memorandum of Argument given the circumstances below.

2. The Applicant brought the recusal application seeking Justice Paperny’s recusal from the appeal panel due to significant apprehension of bias raised over a significant time period. The Application for recusal was heard and decided orally on September 8, 2020. The Application for recusal was filed as soon as possible after the Applicant became aware on September 3, 2020 that Justice Paperny was on the appeals panel. She advised the Court of this forthcoming recusal application on September 3, 2020, filed an initial recusal application on September 4, 2020, and filed amended application materials at the first opportunity after the long weekend on the morning of September 8, 2020.

3. On September 10, 2020, the Applicant submitted her application for permission to appeal to a panel Justice Paperny’s recusal decision, with an accompanying affidavit affirmed September 10, 2020. Her application advised her Memorandum of Argument for the permission to appeal application was forthcoming given the short timing of events. The Court did not file it and, on September 11, 2020, it advised that a Memorandum of Argument must be filed at the same time. The Applicant wrote to Justice Paperny on Monday, September 14, 2020, advised her of the information the Court gave her about the memorandum for her application for permission to appeal to a panel Justice Paperny’s refused recusal, and also requested a page limit of 13 pages for her forthcoming memorandum for the application. On September 15, 2020 the Applicant was advised Justice Paperny allowed both parties a memorandum page limit of 13 pages.

4. Suddenly, on September 16, 2020 the Court sent a letter to the Applicant advising that the decision for her appeals #1901-0179AC/1901-0078AC was being released on September 17, 2020. When the Applicant read the letter, the Applicant replied to the Court advising of her confusion, given that her application for permission to appeal to a panel Justice Paperny’s recusal decision must be heard and decided before the appeals decision with Justice Paperny on the panel can be given in consideration of the circumstances. Justice Paperny and the Court were aware of the Applicant’s permission to appeal application since September 10, 2020.

5. It is highly significant that the Applicant submitted to the Court on September 10, 2020 her initial application seeking permission to appeal to a panel Justice Paperny’s oral decision refusing to recuse herself from the panel.

6. It would appear that Justice Paperny is rushing to get a decision out on appeals #1901-0179AC/1901-0078AC, knowing full well that the Applicant’s timely application seeking permission to appeal her refused recusal was initially submitted on September 10, 2020 with her memorandum for same forthcoming. It is clear that the permission to appeal decision must be adjudicated before Justice Paperny can make any decision, if at all, on appeals #1901-0179AC/1901-0078AC.

7. It is also highly concerning that Justice Paperny appears to be making a rushed decision on the appeals just heard on September 8, 2020, given the Applicant’s application seeking permission to appeal Justice Paperny’s oral decision states that her Supreme Court of Canada leave to appeal application, which appeals Justice Peter Martin’s erroneous decision refusing permission to appeal his earlier decision, would be decided in a reasonable amount of time and was necessary before an appeals decision was made for appeals #1901-0179AC/1901-0078AC. The Applicant’s Supreme Court of Canada leave to appeal application concerns Justice Martin’s errors regarding his earlier decision with respect to the case management officer Laurie Baptiste’s egregiously unfair refusal to file the Applicant’s amended factum at opposing Respondents/Defendants counsel Perry Mack’s request, despite that the amended factum complied with the directed 42-page factum limit for both parties and was submitted on the directed deadline of October 1, 2019, albeit by email and with hardcopies submitted the next morning. The Applicant’s amended factum contains highly critical additional facts, argument and case law necessary for an appeal panel’s informed adjudication of appeals #1901-0179AC/1901-0078AC.

8. It appears Justice Paperny is rushing a decision on the appeals #1901-0179AC/1901-0078AC based on her knowledge that the Applicant has applications in progress for (a) permission to appeal to a panel Justice Paperny’s oral decision refusing recusal; and (b) Supreme Court of Canada leave to appeal application which will likely change the course of the appeals decision as it seeks to ensure the appeal panel has the Applicant’s amended factum before it for informed appeal adjudication.

9. The circumstances and rush decision in play which have the appearance of seeking to beat the timing of the Applicant’s crucial applications in progress are highly shocking and egregious. The Applicant’s materials will be submitted to many public offices across Canada and there will be no confusion as to the circumstances.

10. The Applicant has submitted the within memorandum on an emergency basis, September 16, 2020, so that these facts are clear before any decision on appeals #1901-0179AC/1901-0078AC are known or released.

11. Given the emergency basis upon which this Memorandum of Argument has been filed, the Applicant will be amending this Memorandum of Argument in due course and it will total 13 pages, as mentioned above, and contain extensive further facts raising apprehension of bias concerning Justice Marina Paperny. Therefore, the facts and argument sections for the Applicant’s application seeking permission to appeal to a panel the oral decision of Justice Paperny will be contained in her amended Memorandum of Argument.