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.
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.
