Shared Defence Law Firm Confirmed; Recusal Application Scheduled

At a Court of Queen's Bench hearing on December 4, 2014, it was confirmed that Justice E.C. Wilson's personal legal counsel in unrelated matters, Peacock Linder & Halt, is the same law firm that represents the defendants in this matter, Megan McMahon, Taryn Burnett and Gowlings.

This shared defence counsel between the defendants and the judge assigned to case manage this same lawsuit raises significant conflict of interest issues, including predisposal of the judge to decide in his personal legal counsel's favour, and bias issues beyond those previously raised.

The plaintiff's application for removal of the judge from this case on these grounds has been scheduled to be heard in February 2015.

Conflict of Interest: Shared Defence Law Firm for Defendants Megan McMahon,Taryn Burnett AND Their Judge

In a disturbing development in the matter of Carbone v. Megan McMahon and Gowlings, it has come to light that the defendants Megan McMahon and Taryn Burnett have the same defence counsel as the judge assigned to case manage the same lawsuit.This represents a serious conflict of interest.

Mr. Mack with law firm Peacock Linder & Halt is defence counsel for Ms. McMahon and Ms. Burnett, while the same firm is in fact defence counsel for Justice E.C. Wilson who is a defendant in an unrelated matter, Somji v. Earl C. Wilson. Justice E.C. Wilson is currently the case management judge in the Carbone v. Megan McMahon and Gowlings action.

An application has been filed at the Court of Queen's Bench to have Justice Wilson removed from the case. The Plaintiff had already stated her intention to make an application for recusal due to judge shopping by the defendants and has been waiting to be heard before the judge for several months to date.

As mentioned in an earlier post in this blog, the Plaintiff had previously applied to the Court of Appeal to have Justice Wilson removed from the Carbone v. Megan McMahon and Gowlings lawsuit when he was assigned at the judge shopping request of the defendants Megan McMahon and Taryn Burnett. Those particular grounds could not be dealt with as an order was first required at the Court of Queen's Bench and the Plaintiff therefore awaits to have her recusal application heard before the judge. Justice Wilson had earlier refused recusal in the underlying medical negligence action despite blatant bias, which a lawyer also recognized and advised the Plaintiff to seek recusal for.

The grounds of the present application for recusal of Justice E.C. Wilson are judge shopping and now include conflict of interest. The application, filed November 18, 2014, can be viewed here.

Remedy claimed or sought:

1. Justice Earl C. Wilson is recused from the within action in light of the discovered serious Conflict of lnterest and further to the judge shopping by the Defendants.

2. Costs of this application are payable to the Plaintiff forthwith and in any event of the cause.

Grounds for making this application:

3. In an egregious Conflict of Interest, counsel for the Defendants, Perry Mack and his law firm Peacock Linder Halt ("PLH"), concurrently represent both the within Defendants and, in an unrelated matter, the Defendant Justice Earl C. Wilson in the action Somji v. Earl C. Wilson. Justice Earl C. Wilson ("Justice E.C. Wilson") is the case management judge in the within action.

4. It is arguably the most serious Conflict of Interest for the same defence counsel to concurrently represent both the defendants of an action and the judge assigned to the action. The judge is invariably predisposed to decide in favour of his counsel, as with the present case. Supreme Court of Canada law prohibits such Conflicts of Interest.

5. In email correspondence dated November 14, 2014, the Plaintiff gave indication to Perry Mack ("Mr. Mack") that she is aware of existing Conflicts of Interest and gave opportunity for Mr. Mack to disclose them. Mr. Mack did not reply to said email and has made no disclosure of Conflicts of Interest to date. [Plaintiff's Affidavit filed November 18, 2014]

6. Justice E.C. Wilson has made no disclosure of Conflicts of lnterest to date. Justice Wilson has been aware that Mr. Mack has been defence counsel for the within Defendants since no later than January 2014, at which time the within Defendants requested by letter copied to Justice Wilson that he be assigned as case management judge to the within action. It is not known when discussions or negotiations took place regarding Mr. Mack's merge with PLH and in any event the serious Conflict of Interest is fatal to Justice Wilson's continuance in this matter.

7. Said request by the Defendants for Justice Wilson to be assigned as case management judge to the within action was made without the Plaintiff's consent and was in fact made while the Plaintiff's application was in progress for the recusal of Justice Wilson from the underlying action Carbone v. Whidden, a medical negligence matter. The recusal application in that underlying matter was made further to a lawyer giving opinion to the Plaintiff that Justice E.C. Wilson is biased and that she should seek his recusal. [Plaintiff's Affidavit filed July 22, 2014]

8. The grounds of the within action against the Defendants Megan McMahon (commenced January 22, 2014) and Taryn Burnett with law firm Gowling Lafleur Henderson LLP ("Gowlings") include their malicious harassment and defamation of the Plaintiff and egregious misrepresentations to the courts, in their capacity as defence counsel in the underlying action Carbone v. Whidden, to the point of putting the Plaintiff in the hospital. Their egregious behaviour continues to this day. Lawyers on limited retainer for the Plaintiff have stated in materials filed with the courts that Megan McMahon and Taryn Burnett have lied to the courts. [Plaintiff's materials filed in the underlying action]

9. Taryn Burnett was removed from acting as defence counsel in the Carbone v. Whidden action and has been under investigation by the Law Society of Alberta for approximately one and a half years to date for her malicious behaviour toward the Plaintiff. [Plaintiff's Affidavit filed October 24, 2014].

10. It is noteworthy that the aforementioned unrelated action in which Justice E.C. Wilson is Defendant is also related to his support of deceitful lawyers.

11. The Plaintiff's application for recusal for judge shopping by the Defendants has been outstanding for several months. This matter has not been dealt with to date and the additional serious issue of Conflict of Interest warrants immediate recusal.

The Plaintiff has a number of other adjourned and outstanding applications to be heard, some of which have been outstanding for one year due to the Defendants' repeated delays. These outstanding applications include amendments to the Statement of Claim, consolidation, compelling the Defendants to attend for refused questioning for discovery, and permanent injunction against the Defendants which a judge previously advised the Plaintiff she could make in circumstances which are present.

It has also become necessary for the Plaintiff to make an application to declare the Defendants Megan McMahon and Taryn Burnett vexatious litigants given their ongoing behaviours that meet the criteria set out in Part 2.1 of the Judicature Act, RSA 2000. In accordance with the Judicature Act, the Plaintiff gave notice to the Attorney General in October 2014 of her forthcoming application. [Plaintiff's Affidavit filed November 18, 2014]

12. The ramifications and implications of the discovered Conflict of Interest, which gives rise to further grounds of bias, are enormous as they relate to Justice Wilson's repeated biased actions intended to restrict the Plaintiff's Access to Justice and prevent her from having a fair trial in the medical negligence action in May 2014. The biased actions include setting an expedited trial date at the unilateral request of Megan McMahon, contrary to the Rules of Court requiring certificate of trial readiness, and despite that the self-represented Plaintiff had always stated that she could not be ready for trial at that time on legal advice. Further, among numerous other displays of bias made even more apparent by the Conflict of Interest discovery, Justice Wilson allowed Megan McMahon to serve a Defendant expert report just three months prior to trial contrary to the Rules of Court, in effort to hinder the Plaintiff from properly preparing for it, and also refused to adjourn the trial to accommodate the Plaintiff's treating physician's availability for trial with the result that he was unfairly forced to attend trial immediately upon returning to the country with the alternative being that he would not otherwise be allowed to testify at all. At the same time all of these events took place, Mr. Mack was representing the Defendants Megan McMahon and Taryn Burnett and Gowlings, and Justice Wilson was being represented by his firm in the Somji matter, still in progress. There can be no question as to Justice Wilson's intent.

13. It is common knowledge that Justice Wilson is biased against the Plaintiff. In light of this, the Conflict of Interest, and the other issues raised, it would put the administration of justice in disrepute if Justice Wilson does not immediately recuse himself.

14. In a series of recent decisions and reports, the Supreme Court of Canada has made it clear that behaviour such as Justice Wilson's practices which interfere with access to justice can no longer be tolerated.

Material or evidence to be relied on:
15. Affidavit of the Plaintiff filed November 18, 2014.
16. Affidavit of the Plaintiff filed October 24, 2014.
17. Affidavit of the Plaintiff filed July 22, 2014.

Applicable rules:
18. 13.1

Applicable Acts and regulations:
19.

Any irregularity complained of or objection relied on:
20.

How the application is proposed to be heard or considered:
21. Before the current case management judge, Justice E.C. Wilson.

Law Society of Alberta: Taryn Burnett Remains Under Investigation

In a letter dated October 8, 2014, the Law Society of Alberta conduct manager provided a further update to the complainant that Gowlings lawyer Taryn Burnett continues to be under lengthy review.

Ms. Burnett has been under investigation for misconduct by the Law Society of Alberta for one and a half years to date for her reprehensible abuse of the complainant, a plaintiff in a medical negligence matter who had to undergo multiple corrective surgeries. Ms. Burnett was removed from acting as opposing defence counsel in that matter.

In addition to the Law Society investigation, Ms. Burnett and Gowlings colleague Megan McMahon face harassment and defamation proceedings at the Court of Queen's Bench.

Another Gowlings Lawyer Sued for Defamation Found Guilty of Misconduct

In an unrelated matter, Kristine Robidoux, another Gowlings lawyer being sued for defamation, has been found guilty of misconduct by the Law Society of Alberta and has resigned from Gowlings.

Legal Feeds Article

In the present matter on which this blog reports, Gowlings lawyer Taryn Burnett has been under investigation by the Law Society of Alberta for over a year and the LSA has advised the complainant that they continue to look into this matter with an indefinite time period for conclusion. Ms. Burnett was removed from acting as opposing counsel for the defendant of the underlying medical malpractice action of the present matter in May of 2013, following her reprehensible harassment and defamation of the plaintiff. Ms. Burnett was replaced with colleague Megan McMahon, who has continued to defame and harass the plaintiff, to the point of putting her in the hospital.

Carbone v. Megan McMahon and Gowlings, Carbone Appellant Factum

Below is the Carbone Appellant/Plaintiff Factum filed with the Alberta Court of Appeal on May 5th, 2014 with respect to the judge shopping by the Respondent/Defendant Megan McMahon.

I. STATEMENT OF FACTS

1. This is the Factum of the Appellant/Plaintiff. The Appellant appeals from the case management judge appointment of Mr. Justice E.C. Wilson to the Court of Queen's Bench action Carbone v. McMahon, with action no.1401-00821 [Key Extracts of Evidence – Tab 11, Appellant's Statement of Claim filed January 22, 2014; Tab 12, Reply to Defence].
2. The issue on appeal is whether the Appellant has been deprived of her right to procedural fairness with respect to the case management judge assignment of Justice Wilson and his acceptance of it, to the Carbone v. McMahon action at the written request of the Respondent/Defendant Megan McMahon ("the Respondent Ms. McMahon"). Moreover, the Respondent Ms. McMahon's request was made while an application for the recusal of Justice Wilson as case management judge was in fact in progress in the underlying medical negligence action, for which the Respondent Ms. McMahon is opposing counsel and the Appellant is the Plaintiff, on grounds including reasonable apprehension of bias and bias toward Ms. McMahon. The issue is also whether a new case management judge should be appointed.
3. The events leading to the case management appointment of Justice Wilson can be summarized as follows:
        (a) On January 27, 2014, the Appellant became aware of written ex-parte communication from     
        Taryn Burnett, former defence counsel in the underlying Carbone v. Whidden action who was     
        removed for conduct issues, to Justice Wilson. The Appellant then sent a letter dated January 27,  
        2014 [Key Extracts of Evidence – Tab 3] to Justice Wilson with copy to the Respondent, 
        requesting copies of correspondence.
        (b) Upon receiving this correspondence of the Appellant's discovery, the Respondent sent a    
         letter dated January 28, 2014 [Key Extracts of Evidence – Tab 3] to the Honourable Chief   
         Justice Wittmann with copy to Justice Wilson, seeking Justice Wilson's appointment as case 
         management judge to the Carbone v. McMahon action. This is despite that the Appellant's 
         application for the recusal of Justice Wilson was in progress in the Carbone v. Whidden action.  
         That recusal application was filed on November 12, 2013 and began to be heard on November 
         18, 2013, with subsequent adjournment to February 28, 2014 at the direction of Justice Wilson. 
         At that case management meeting, Justice Wilson acknowledged that the Respondent sent him a 
         letter requesting his case management appointment [AB – Tab 10, Transcript of February 28, 
         2014 proceedings, p. 25-26].
        (c) On January 28, 2014, the Appellant sent a reply letter [Key Extracts of Evidence – Tab 4]    
         opposing the blatant judge shopping
        (d) In a letter dated February 19, 2014 [Key Extracts of Evidence – Tab 5], the Appellant  
          requested that the parties be heard before the Honourable Chief Justice Wittmann so that the 
         Appellant could be fully heard on her concerns and request assignment of a different case 
         management judge.
4. The Appellant’s Court of Queen’s Bench action, Carbone v. McMahon, is a defamation and harassment matter brought on the basis of the Respondent Megan McMahon and her colleague Taryn Burnett, as opposing defence counsel, bringing a series of malicious, harassing and defamatory applications against the Appellant in the underlying Carbone v. Whidden medical negligence action ("the Whidden action") in abuse of process outside of their defendant client's interest for the purpose of personal and irrelevant attack on the Appellant. The Respondent Ms. McMahon made outrageous and frivolous false allegations in said applications, including that the Appellant brought six applications for a stay, which is false as there were two brought on separate matters [Key Extracts of Evidence – Tabs 1 and 2, Appellant's Affidavits filed August 2 and 12, 2013], and that the Appellant had not paid $150 in costs despite the Respondent being fully aware that it was not due until conclusion of the action. In addition, the Respondents vexatiously and unsuccessfully brought three applications for security for costs within three months, also including malicious statements. All of these applications were dismissed by the court. These applications were systematically brought in the months preceding the the Respondent Ms. McMahon's summary judgment application in the Whidden action with intent to confuse the court and harm the Appellant so that she could not properly prepare for their summary judgment application. The result was that the Appellant was put on medical leave and referred to the emergency upon her doctor noting irregular pulse and chest pain related to the ordeal [Key Extracts of Evidence – Tab 6, Appellant's medical charts]. The Respondent Ms. McMahon lost her summary judgment application, which Justice Wilson was recused from hearing [Appellant's Book of Authorities – Tab 11]. Throughout the Respondent's barrage of unfounded attacks, Justice Wilson entertained, condoned and prolonged, to the health detriment of the Appellant, all of the malicious and defamatory applications for months before eventually dismissing them.
5. The Respondent Ms. McMahon subsequently went on to make further egregious misrepresentations at the Court of Appeal in order to prevent the Appellant's appeal, seeking refused physician qualifications, from being restored, with such false statements as the Appellant had questioned on a topic for a duration that was actually twice the actual duration, the absurd statement that the Appellant had withdrawn her affidavit sworn September 9, 2013 in the Respondent Ms. McMahon's attempt to prevent evidence from being filed, and the egregious fabrication that a case management officer had provided a letter to the Appellant specifically stating that her factum deadline was December 12, 2012, which does not exist, and for which the Appellant's appeal lawyer filed in appeal materials on October 3 and 28, 2013 that the Respondent Ms. McMahon made misrepresentation to the Court of Appeal. Despite the Respondent Ms. McMahon's ongoing egregious misrepresentations to the Courts and abusive tactics toward the Appellant, Justice Wilson turned a blind eye and now wishes to be case management judge in the Carbone v. McMahon action at the Respondent Ms. McMahon's request.
6. Justice Wilson granted an interim order with ex-parte attendance by the Respondent on April 11, 2013 [AB – Tab 1, Transcript of Proceedings] without the Appellant having opportunity to respond to the Respondent's malicious application filled with false and defamatory allegations. The Appellant was not even aware the case management meeting was proceeding given that she had provided to Justice Wilson a letter from her employer as per his request [Key Extracts of Evidence – Tabs 1 and 2] communicating the Appellant's core hours of work and offering that Justice Wilson could contact her employer if there were any questions. Justice Wilson repeated the incident on May 7, 2013, a return date he set only at the availability of the Respondent [AB – Tab 1, Transcript of Proceedings, April 11, 2013, p. 33] and chose to proceed with despite that prior to this return meeting the Appellant sent Justice Wilson a letter notifying him that she was unavailable on this date due to her prior course enrollment through her employer, with enclosure confirming the prior enrollment, and request for adjournment to another date [Key Extracts of Evidence – Tabs 1 and 2]. Once again, Justice Wilson did not adjourn the meeting to accommodate the availability of both parties, and without any word to the Appellant. Given Justice Wilson's prior action on April 11, 2013 to grant an interim order at the Respondent's malicious ex-parte request, the Appellant had to forgo part of her course and attend the case management meeting on May 7, 2013. Justice Wilson allowed the Respondent Ms. McMahon to make further malicious, false and frivolous submissions and would not let the Appellant speak [AB – Tab 2, Transcript of Proceedings, May 7, 2013] for nearly an hour. Such submissions included Ms. McMahon stating that there should be a final order because the Appellant stated in her affidavit filed May 2, 2013 that she felt harassed by the Respondent Ms. McMahon. When the Appellant was finally given an opportunity to speak briefly, she reiterated her course commitment as stated in the letter. Justice Wilson then directed the Appellant to go to her workplace to confirm her schedule for a subsequent case management meeting, but then in her absence extended the interim order at the Respondent Ms. McMahon's request, again refusing the Appellant opportunity to speak to the false allegations. At two more continued applications on the matter on May 21, 2013 [AB – Tab 3] and May 30, 2013 [AB – Tab 4], Justice Wilson continued to allow the Respondent Ms. McMahon to make false allegations and refused the Appellant opportunity to respond, and in fact told her to be quiet when she attempted to speak [AB – Tab 4, p. 19, p.35].
7. The Respondent Ms. McMahon's malicious and defamatory misrepresentations contained in her applications were all proven to be false further to the Appellant's numerous affidavits filed on the matter with the Court of Queen's Bench, including her affidavits filed August 2, 2013 and August 12, 2013 [Key Extracts of Evidence – Tabs 1 and 2]. In addition, the Respondent Ms. McMahon had also refused to allow the Appellant to cross-examine on their defamatory application materials [Key Extracts of Evidence – Tab 2], and when the court questioned why she refused to allow the questioning, the Respondent Ms. McMahon admitted that she had no reason and that she "just chose not to", and acknowledged concern with her conduct [AB – Tab 5, p. 35-36]. The Respondent Ms. McMahon's malicious applications were dismissed and the interim order obtained ex-parte without the Appellant having an opportunity to respond to it was revoked and vacated in an order pronounced August 14, 2013 [Key Extracts of Evidence – Tab 7].
8. The Appellant filed an application on September 26, 2013, amended February 21, 2014 [Key Extracts of Evidence – Tab 13] to recover her solicitor and own costs incurred further to the dismissal of the Respondent Ms. McMahon's malicious and defamatory applications. Justice Wilson delayed the hearing with multiple adjournments to February 28, 2014. On that date, in a great travesty of justice, and despite the horrific behaviour of the Respondent Ms. McMahon which gave rise to the Appellant's health issues, Justice Wilson refused to grant the Appellant any costs for the Respondent Ms. McMahon's malicious and defamatory applications despite that they were all dismissed and, further, that the interim order, which the Appellant was never given opportunity to speak to, was revoked and vacated to a state of never being made in the first place. The Appellant recalled the Respondent Ms. McMahon stating "certainly it wasn't misconduct", which somehow did not make it into the transcript. Justice Wilson gave no valid reason for refusing to grant costs to the Appellant and selectively read sentences from communications, also leaving out the second incident of granting the interim order extension on ex-parte attendance of the Respondent. Also at the February 28, 2014 case management meeting, Justice Wilson refused to recuse himself.
9. The numerous adjournments of the aforementioned application is also noteworthy. The Appellant initially filed the application on September 26, 2013 to be heard on October 1, 2013, however Justice Wilson claimed he did not receive the application. Justice Wilson then directed that the Appellant's costs application be adjourned to a two-hour case management meeting. This was scheduled to be heard on November 18, 2013 from 2:00pm – 4:00pm, however, Justice Wilson did not appear until 3:00pm, thereby necessitating continuation for a third hearing, which Justice Wilson directed be held in the New Year for a full day. Justice Wilson would not offer a date in January 2014 at the Appellant's request [Key Extracts of Evidence - Tab 14] and the date that it was heard, February 28, 2014, was significantly just two months prior to the trial date of May 5, 2014, which was scheduled and expedited at the unilateral request of the Respondent Ms. McMahon though the self-represented Appellant repeatedly stated she could not be properly prepared for trial until the fall of 2014. It is also significant that Justice Wilson had stated that the Respondent Ms. McMahon did not have to file any materials to respond or object to the Appellant's costs and recusal application, contrary to the Rules of Court, in order that the Appellant be hindered in preparing for the opposing position. When the Appellant inquired as to why the Respondent Ms. McMahon was not required to file any materials to respond or object contrary to the Rules, Justice Wilson replied, "I’m not answering your questions." [AB –Tab 10, p.5-6].
10. In January 2013, a lawyer familiar with the proceedings gave opinion that Justice Wilson is biased, and advised her to seek recusal [Key Extracts of Evidence – Tab 2]. He gave further opinion that the Respondent was bringing applications with no merit to drive up costs and avoid the true merits of the claim [Key Extracts of Evidence – Tab 9]. The recusal application was finally heard on February 28, 2014, though the Appellant had been seeking recusal since her letter dated March 18, 2013 [Key Extracts of Evidence – Tab 16]. Justice Wilson would not agree to hear the Appellant's recusal application until the Appellant raised her request for it again at a May 21, 2013 case management meeting, at which time he said he would not hear it until after the Respondent Ms. McMahon's application was heard. At the end of August 2013, the Appellant had the understanding that Justice Wilson would have limited involvement going forward, namely with trial scheduling, in a letter August 16, 2013 [Key Extracts of Evidence – Tab 8] and she held her recusal application abeyance and further stated she reserved her right to proceed with it later if necessary.
11. At the case management meetings on October 1, 2013 and October 22, 2013 it was apparent that Justice Wilson continued to align himself with the Respondent Ms. McMahon by conceding to all of her requests for trial despite causing prejudice to the Appellant, including ordering an expedited spring trial though the Appellant repeatedly stated she would not be properly prepared until the fall of 2014, further to legal advice she received.
12. Previously, Justice Wilson had stated on August 14, 2013 that trial could be accommodated in the fall of 2014: “I would presume a ten-day trial can be accommodated anytime in 2014. In other words, it would have to wait until the fall.” [AB, Tab 5 - p. 10]. Yet, as the transcripts of the subsequent case management dates of August 29, 2013, October 1, 2013, October 22, 2013 and February 28, 2014 indicate [AB - Tabs 6, 7, 8, 10], when the Appellant repeatedly requested that trial take place in the fall of 2014, further to legal advice she received, Justice Wilson refused to accommodate her trial readiness. On October 1, 2013 the Respondent Ms. McMahon sought a trial date of May 5, 2014, not canvassed with the Appellant, and Justice Wilson immediately granted it.
13. Further, Justice Wilson ignored the Rules of Court for trial readiness which require that both parties be ready for trial before a trial date is scheduled and, further, that any expert reports must be exchanged prior to a trial date being scheduled, pursuant to Rules 8.4 and 8.5. The Appellant did not become aware of these Rules until after trial discussions commenced, and when she stated her concerns at the October 22, 2013 case management meeting that her right to trial readiness was being violated, Justice Wilson refused to reschedule the trial date, resulting in the Appellant being greatly prejudiced for trial. Also at this case management meeting, the self-represented Appellant sought clarification on deadlines related to trial and when she stated her understanding that the Court should explain processes and procedures to a self-represented plaintiff, Justice Wilson told her that she is entitled to feel however she wishes and to sit down [AB – Tab 8, p. 14].
14. On February 5, 2014 the Respondent Ms. McMahon served an expert report, just three months prior to the scheduled trial date of May 5, 2014, again contrary to the Rules requiring that any expert reports be exchanged prior to the setting of a trial date. It is also apparent from the date of the report that the Respondent Ms. McMahon received it on December 18, 2013 but chose not to produce it until February 5, 2014 in order to further hinder the Appellant from properly preparing for trial. The Appellant raised this issue at the February 28, 2014 case management meeting, however, Justice Wilson refused to adjourn the trial date.
15. Most recently, the Appellant became aware that her physician witness for trial would be out of the country during the scheduled trial date. He provided a letter stating such, with his next availability for trial being in June. As it was important that he testify at trial with his evidence of performing five corrective surgeries on the Appellant following the initial negligent surgery by the Whidden defendant, the Appellant requested on April 17, 2014 an urgent application for adjournment so that her physician witness could appear at trial and give critical evidence. As with all of Justice Wilson's prior refusals to honour the trial readiness Rules, Justice Wilson refused to grant an adjournment, again without any valid reason.
16. Throughout the five years of case management by Justice Wilson in the Carbone v. Whidden action, Justice Wilson repeatedly demonstrated a reasonable apprehension of bias, refused to hear submissions from the Appellant on applications, refused to explain court processes and procedures to the self-represented Appellant, often spoke in a verbally abusive manner with uncontrolled yelling tirades for no reason, made inappropriate gestures toward women in the courtroom, and took drastic measures to prevent the Appellant from having a fair trial. Further, other Honourable justices of the Court of Queen's Bench have had to reverse Justice Wilson's orders to ensure fairness to the Appellant, including reversing his order refusing to grant adjournment for the Respondent's client's summary judgment application, which was unsuccessful, despite that it was scheduled on a date the Appellant was not available.
    
    

II. GROUNDS OF APPEAL 

17. It is respectfully submitted that Justice Wilson erred in accepting the Respondent Ms. McMahon's request for him to be case management judge given the history and, moreover, while an application for his recusal was in progress in the Carbone v. Whidden action with grounds of bias. The circumstances give rise to further reasonable apprehension of bias. In the alternative, it is respectfully submitted that the Honourable Chief Justice Wittmann may have erred in appointing Justice Wilson as case management judge when the Respondents made the written request without complying with the Rules, and did not give opportunity for the Appellant to be fully heard on her concerns and request for a different case management judge to be assigned. 

III. POINTS OF LAW AND ARGUMENT

A. Standard of Review

18. The question is whether the Appellant was denied procedural fairness when Justice Wilson was assigned and accepted appointment as case management judge at the written request of the Respondent Megan McMahon without the Appellant's consent or canvass of it and, further, with this request being made while the application for recusal of Justice Wilson was in fact in progress in the underlying action, with grounds including that Justice Wilson was biased toward the Respondent. The standard of review for issues of procedural fairness is correctness. The issue of reasonable apprehension of bias is also categorized as an issue of procedural fairness.
19. This Honourable Court cited the Supreme Court of Canada in asserting that issues of procedural fairness are reviewed on the standard of correctness in Johnston v. Alberta (Director of Vital Statistics), 2008 ABCA 188 (CanLII) at para. 12:
          [I]ssues of procedural fairness or natural justice... are reviewed on the correctness    
          standard using the analysis set out in Baker v. Canada (Minister of Citizenship and        
          Immigration), 1999 CanLII 699 (SCC).

B. Submissions

20. Kent J. explained the serious issues with judge shopping at para. 3 in Schwartz Estate v. Kwinter, 2012 ABQB 389 [Book of Authorities – Tab1]:

     Judge shopping can be a dangerous practice. At its worst, it can call into question the principle of 


     impartiality that is a foundation to a strong, legitimate judicial system. In emerging democracies, 


     one of the measures of an independent, impartial judiciary is a system of judicial assignment that 


     assures impartiality and fairness.

21. The circumstances of judge shopping in the present situation are remarkable. Not only did Ms. McMahon request Justice Wilson's appointment as case management judge to this action in which she is defendant and, further, without consent of the Appellant, she specifically requested that Justice Wilson be appointed via a letter sent directly to him, presumably to solicit his support in such appointment. Further, the request was made while the application for Justice Wilson's recusal was in progress in the Carbone v. Whidden action with grounds of bias toward the Respondent Ms. McMahon. Justice Wilson acknowledged that his appointment was at the Respondent Ms. McMahon's request [AB – Tab 10, p. 25-26]. It is respectfully submitted that undeniable judge shopping has occurred and that the circumstances give rise to further reasonable apprehension of bias and require that Justice Wilson be removed as case management judge in the within action.
22. By virtue of sending the request for Justice Wilson's appointment by concurrent and direct copy to Justice Wilson himself, Justice Wilson was put in a position of supporting the request and effectively appointing himself as case management judge. In K.B. v. P.B., 1997 ABCA 284 at para. 6 [Book of Authorities – Tab 2], this Court ruled that it was improper for a chamber's judge to appoint himself as case management judge, and allowed the appeal.
23. Rule 4.12 of the Alberta Rules of Court states that a request for case management must state the reason and whether the opposing party consents:

     Request for case management

     4.12(1)  A request for a case management order must be made in writing to the Chief Justice 

                   and a copy of the request must be served on each of the other parties.

 

            (2)  The request must state

       

                  (a)   the reason for the request, and

                  (b)   whether any of the other parties agrees with the request.

In the present situation, these requirements were not complied with by the Respondents. The 


Respondents' letter to Justice Wilson and Chief Justice Wittmann did not state the reason for the 


request for case management, nor did it give a reason for specifically requesting Justice Wilson, and 


the Respondents made no effort to ascertain whether the Appellant consented prior to making the 


request. The request for the appointment of Justice Wilson to case manage the action is therefore 


improper.

 
24. The Supreme Court of Canada set out the standard of review of correctness for issues of procedural fairness in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 [Book of Authorities – Tab 3]. In its conclusion, the Court allowed the appeal "because there was a violation of the principles of procedural fairness owing to a reasonable apprehension of bias". Of relevance to the present case is the context at the below para. introduction, 22, 45 and 76:

     [Introduction] The duty of procedural fairness is flexible and variable and depends on an 


     appreciation of the context of the particular statute and the rights affected.  The purpose of the 

     
     participatory rights contained within it is to ensure that administrative decisions are made using a 

     
     fair and open procedure, appropriate to the decision being made and its statutory, institutional 


     and social context, with an opportunity for those affected to put forward their views and 


     evidence fully and have them considered by the decision-maker...

     [22] Although the duty of fairness is flexible and variable, and depends on an appreciation of the 

     
     context of the particular statute and the rights affected, it is helpful to review the criteria that 

     
     should be used in determining what procedural rights the duty of fairness requires in a given set of 


     circumstances. I emphasize that underlying all these factors is the notion that the purpose of the 

     
     participatory rights contained within the duty of procedural fairness is to ensure that 


     administrative decisions are made using a fair and open procedure, appropriate to the decision 

     
     being made and its statutory, institutional, and social context, with an opportunity for those 


     affected by the decision to put forward their views and evidence fully and have them considered 


     by the decision-maker.

     [45] Procedural fairness also requires that decisions be made free from a reasonable 

     
     apprehension of bias, by an impartial decision-maker.

 
     [76] Therefore, both because there was a violation of the principles of procedural fairness owing 

     
     to a reasonable apprehension of bias, and because the exercise of the H & C discretion was 

     
     unreasonable, I would allow this appeal. 
 

25. In Brown v. Canada (Attorney General), 2013 ONCA 18 (CanLII) [Book of Authorities – Tab 4], the Ontario Court of Appeal found that the case management judge had predetermined issues and deprived the party of their opportunity to make submissions, and further found that assignment of the same judge on a related matter would result in the case management judge sitting in review of his own decision. The Court referenced and affirmed the Supreme Court of Canada's decision in Law Society of Upper Canada v. French stating that a judge can not sit in review of his own decision, and upheld the prior court's decision preventing the case management judge from being the judge in a second matter.

      [Introduction para.] The case management judge had apparently predetermined that there were 


      viable causes of action in negligence and breach of fiduciary duty. 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 [page357] the case management judge, were viable. 


      It was not self-evident that they were. The Divisional Court did not err in ordering that the 


      certification motion be heard by another judge. Section 34(2) of the Act, which provides that 


      the senior regional judge shall assign another judge where the case management judge "becomes 


      unavailable for any reason", does not simply contemplate unavailability due to illness or death. 


      The phrase "for any reason" is wide enough to include circumstances in which the principles of 


      natural justice preclude the judge continuing with the case.

 

      [53] ...I think it can now safely be said that judges cannot sit in appeal of their own decisions... 


      In my view, a reasonable interpretation of the reasons of the case management judge is that he 


      had determined that viable causes of action existed as he framed them... I do not think it can be 


      safely said that the respondent had an adequate opportunity to respond. To now give the 


      respondent that opportunity before the same judge would, as the Divisional Court found, result 


      in the case management judge sitting in review of his own decision.

26. In the same vein as the Ontario Court of Appeal ruled in Brown v. Canada, it is improper or 
    
    
    inappropriate for Justice Wilson to be case management judge for the present action and in effect sit 
    
    
    in review of his own decisions. Rule 13.1(c) of the Alberta Rules of Court provides:

                Judge Unable to Continue

               
             
                 When one judge may act in place of or replace another

             
             
                 13.1 One judge may act in place of or replace another judge if

               
                          
                                      (c)  it is inconvenient, improper, inappropriate or impossible for that other judge to act.

27. Rule 10.52 3(a)(i) of the Alberta Rules of Court states that one may not seek contempt of court for costs. Yet, Justice Wilson allowed the Respondent Ms. McMahon to make such a malicious application in a further abuse of process, and three months after a $500 costs order was made for an application the Appellant was successful with. Further, the contempt for costs application was brought by the Respondent on April 22, 2013, vexatiously accompanied by a third application within three months for security for costs, as a collateral attack after the Appellant was granted an adjournment earlier the same day, with the Respondent being disatisfied. The costs were paid promptly consistent with the Appellant's representations at the April 22, 2013 meeting, of which the Respondent was fully aware. The Respondents also made the false allegation that there were outstanding costs of $150 despite that this was not payable until conclusion of the Whidden lawsuit. The malicious contempt of court for costs application was dismissed on May 30, 2013 [Key Extracts of Evidence – Tab 7]. Justice Wilson prolonged the application, contributing to the Appellant being sent to the emergency days later. 
     
28. Justice Wilson gave no opportunity to the Appellant to respond to the false, malicious allegations of the Respondent Ms. McMahon before making an interim order without any valid reason and extending it without the Appellant even being present in a violation of the Appellant's rights. It is significant that the interim order and extension of it, which was revoked and vacated in an order pronounced August 14, 2013 [Key Extracts of Evidence – Tab 7], state that the merits of the application were not even determined. In Morrison v. Morrison, 2005 ABCA 72 [ Book of Authorities – Tab 9], Fruman J.A. of this Honourable Court asserted that a judge must allow submissions from both parties before making a decision and he must give discernible decisions. In his determination to allow the appeal, at para. 7, Fruman J.A. cited these Supreme Court of Canada decisions:
     
         Judges are to give discernable reasons for their decisions: R. v. Sheppard, 2002 SCC 26 
    
    
         (CanLII), [2002] 1 S.C.R. 869 at para. 15. This direction is not limited to criminal decisions, but 
    
    
         to all matters...As well, judges should consider submissions from counsel before reaching a 
    
    
         decision. See for example Erven v. R., 1978 CanLII 19 (SCC), [1979] 1 S.C.R. 926 at 935. 
     
29. In Nazarewycz v. Dool, 2009 ABCA 70 [Book of Authorities – Tab 10], this Court set aside the order of a chambers judge and ordered his removal due to reasonable apprehension of bias determined by his words and actons. The Court stated at para. 76 and 77:
         76 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.
         77 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.
30. In Adams v. Adams, 2010 ABCA 256 [Book of Authorities – Tab 8], Rowbotham J.A. of this Honourable Court found that a case management judge's decision refusing to adjourn a trial date to allow time to properly deal with an expert report was unreasonable and directed that a new case management judge be appointed to deal with the case to the commencement of the trial at para. 18.
31. An unbiased appearance is an essential component of procedural fairness. Cory J. of the Supreme Court of Canada stated in Newfoundland Telephone Company Limited v. The Board of Commissioners of Public Utilities 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623 [Book of Authorities – Tab 7] at p.636: 
          The duty to act fairly includes the duty to provide procedural fairness to the parties. That simply 
     
          cannot exist if an adjudicator is biased. It is, of course, impossible to determine the precise stateof 
    
    
          mind of an adjudicator who has made an administrative board decision. As a result, the courts 
    
    
          have taken the position that an unbiased appearance is, in itself, an essential component of 
    
      
          procedural fairness. To ensure fairness the conduct of members of administrative tribunals has 
    
    
          been measured against a standard of reasonable apprehension of bias. The test is whether a 
    
    
          reasonably informed bystander could reasonably perceive bias on the part of an adjudicator. 
     
32. In Merchant v. Law Society of Alberta, 2007 ABQB 658 (CanLII) [Book of Authorities – Tab 6], the Court found that a telephone call between the chair and complainant created a reasonable apprehension of bias and the Court commented on the seriousness of a breach in procedural fairness giving rise to reasonable apprehension of bias. This is akin to the present case wherein the Respondents, upon the Appellant identifying ex-parte communication from the Respondents to Justice Wilson, immediately requested by letter dated January 28, 2014, directly and concurrently copied to Justice Wilson, that Justice Wilson case manage the proceedings in the Appellant's action against them. Reasonable apprehension of bias is increased given the circumstances of Justice Wilson accepting this appointment request while an application was in progress for his recusal. In Merchant, at para. 23 the Court stated:
          Impartiality is fundamental. When the breach of procedural fairness is such that it gives rise to 
    
           
           reasonable apprehension of bias, the decision of the tribunal is fundamentally undermined. Surely 
    
           
           once that finding is made, the process is fatally flawed. A pragmatic approach requires me to 
    
          
           look beyond the simple fact that the call was made. I must consider the circumstances of the 
    
          
           call. I have done that above and found a reasonable apprehension of bias. 
     
33. Justice Wilson has already unreasonably refused recusal in the Carbone v. Whidden action and it follows that a recusal application in the present action which would have the same grounds would be futile and a waste of resources.
34. The Appellant has already been subjected to over five years of Justice Wilson's bias, with adverse health effects. He now wishes to be case management judge for the Respondent Ms. McMahon's case at her request. The Appellant must not be subjected to such bias any further.
35. The Appellant submits that a reasonably informed bystander could reasonably perceive bias on the part of Justice Wilson. It is respectfully submitted that Justice Wilson must not continue as case management judge in the Carbone v. McMahon action, with action no. 1401-00821.
36. This factum appears online for transparency.
     
    IV. NATURE OF RELIEF SOUGHT
37. In the context of all of the forgoing, it is respectfully submitted that a new case management judge should be appointed in Queen's Bench Action No. 1401-00821.
38. In the alternative, it is respectfully submitted that the parties be directed to attend before Chief Justice Wittmann for the Appellant to be heard on her concerns and request for a new case management judge to be assigned.
39. The Appellant seeks a declaration that the circumstances of the Respondent's request for the appointment of Justice Wilson as case management judge amount to judge shopping.
40. The Appellant should be awarded her costs of the within appeal.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 5th day of May, 2014.

Appellant/Plaintiff