The grounds for the application to remove Justice Wilson from these matters are conflict of interest due to his shared defence counsel law firm with the Defendants Megan McMahon, Taryn Burnett and Gowlings. The grounds also include bias and judge shopping by the Defendants.
PART I: BACKGROUND
The Action
1. This Action concerns the malicious and egregious harassment, defamation and fraud inflicted
by the Defendants Megan McMahon, Taryn Burnett and Gowling Lafleur Henderson LLP
(collectively, "the within Defendants") on the Plaintiff (Applicant), while acting in their
capacity as counsel for the defendant Dr. Peter Whidden ("the Whidden defendant") in the
underlying medical malpractice action, Carbone v. Whidden ("the Whidden action").
2. The Honourable Justice Earl C. Wilson was the case management judge in the Whidden action.
At the judge shopping request of the within Defendants, Megan McMahon, Taryn Burnett and
Gowling Lafleur Henderson LLP ("Ms. McMahon", "Ms. Burnett", and "Gowlings"), Justice
Wilson was assigned as the case management judge in the within action. That judge shopping
request included the within Defendants sending a letter dated January 27, 2014 to Justice
Wilson requesting his assignment as case management judge, without any prior notice or
canvassing of consent from the Plaintiff. Further, the judge shopping request was egregiously
made while the Plaintiff's recusal of Justice Wilson was in fact in progress in the Whidden
action on grounds including Justice Wilson's bias toward the within Defendants Ms. McMahon
and Ms. Burnett, and bias against the Plaintiff.
3. Counsel for the within Defendants, Ms. McMahon, Ms. Burnett and Gowlings, is Perry Mack
("Mr. Mack"), a lawyer at the law firm of Peacock, Linder & Halt LLP ("PLH"). It is significant
that Peacock, Linder & Halt LLP is also the personal legal counsel firm of Justice E.C. Wilson,
the within case management judge. Justice Wilson acknowledged that PLH is his personal legal
counsel at the first case management meeting for the within action held on December 4, 2014,
further to the Plaintiff's application filed November 18,2014 for recusal of Justice Wilson from
the within action.
4. The action against the Defendant Ms. Burnett with Action No. 1301-03943 was commenced on
March 28,2013. The Defendant Ms. Burnett was removed from the Whidden action in May
2013 due to misconduct and has been under investigation by the Law Society of Alberta for
over one and a half years to date.
5. The within Defendants have unreasonably and repeatedly delayed and adjourned the Plaintiffs
applications for amendments from December 2013 to March 2014, and then again to December
12014, so that their judge of choice, Justice Wilson, could hear the applications. The amendments
sought by the Plaintiff included the addition of Ms. McMahon as a defendant. The unreasonable
delays necessitated a separate action against the Defendant Ms. McMahon, with Action No.
1401-00821, filed on January 22, 2014. The Plaintiff seeks consolidation of the actions and
approval of her proposed amendments.
Application Issues Raised
6. The circumstances of concurrent legal representation by PLH and Mr. Mack for both the within
defendants and Justice Wilson, and the egregious judge shopping by the within Defendants for
Justice Wilson's assignment as case management judge, represent a massive conflict of interest.
It is essential to the administration of justice and the public's confidence that Justice Wilson be
recused.
7. The conflict of interest also warrants that counsel for the Defendants, PLH and Mr. Mack, be
disqualified and removed from the within action.
8. The Plaintiff's proposed claim amendments should be allowed.
PART II: LAW AND ARGUMENT
Recusal of Justice E.C. Wilson
Conflict of Interest, Reasonable Apprehension of Bias and Judge Shopping
10. The representation of the within Defendants and the within case management judge, Justice
Wilson, by the same law firm, PLH, represents a serious conflict of interest. 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.
11. Justice Wilson acknowledged at the case management meeting on December 4, 2014 that PLH
is his personal legal counsel. PLH acts for Justice Wilson in unrelated litigation. One matter in
which PLH represents Justice Wilson is the action Somji v. Earl C. Wilson, which was in
progress at the time of that case management meeting.
10. It is trite law that a conflict of interest and reasonable apprehension of bias can be drawn from
certain relationships between a presiding judge and a party appearing before him, such as a
presiding judge's past client appearing before him as a party. Here, in the present circumstances,
the issue is not merely a past association with a party but in fact an ongoing solicitor-client
relationship where Justice Wilson is the client, and counsel for the within Defendants is his
personal legal counsel. The circumstances are further concerning given counsel for the within
Defendants is an authority to Justice Wilson for legal advice. This unique situation makes the
conflict of interest far more serious and gives rise to reasonable apprehension of bias.
11. The Plaintiff is being prejudiced by the dual representation by PLH and will be prejudiced
further if Justice Wilson does not recuse himself. Recusal is the appropriate remedy.
12. A reasonable person would conclude that Justice Wilson is in a conflict of interest and that he is
predisposed to decide in favour of the party represented by his personal legal counsel. A
reasonably informed bystander could reasonably perceive bias on the part of Justice Wilson.
13. The continuation of Justice Wilson as case management judge would put the administration of
justice in disrepute.
14. The Supreme Court of Canada has affirmed that disqualification is appropriate when a law firm
is in a conflict of interest and the bright line rule on its face supports disqualification: R. v. Neil,
[2002] 3 S.C.R. 631; Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39.
15. The test for apprehension of bias and the importance of impartiality in our justice system is set
out by the Supreme Court of Canada in Wewaykum Indian Band v. Canada, 2003 SCC 45
(CanLIl), [2003] 2 S.C.R. 259:
decisions. Maintaining this confidence requires not only that a judge is in fact impartial, but
that they are also perceived to be impartial:
17. The public's perception of ajudge's impartiality must always be maintained for the
administration of justice, even if there is no evidence of a bias or conflict of interest:
Bailey v. Barbour, 2012 ONCA 325
18. The chapter on Impartiality in the Canadian Judicial Council's document Ethical Principles for
Judges states "Judges must be and should appear to be impartial with respect to their decisions
and decision making" and "the appearance of impartiality is to be assessed from the perspective
of a reasonable, fair-minded and informed person."
19. The same document refers to a "cooling off period" in the section "Former Clients". Even ifit
were the less serious situation of a former client, Justice Wilson's direct and current
involvement with PLH does not meet the direction: "(c) with respect to the judge's former ...
clients, the traditional approach is to use a 'cooling off period', often established by local
tradition at 2, 3 or 5 years ... "
20. In Boardwalk REIT LLP v. Edmonton (City), 2008 ABCA 176, a Court of Appeal justice recused
himself because he had hired an accountant who was with the same national firm of chartered
accountants as the people engaged by Boardwalk for its assessment appeals. In the present
matters, there is a much more direct connection between Justice Wilson and the law firm
representing the Defendants, making the decision to recuse an obvious and necessary choice.
21. Rule 13.1 of the Alberta Rules of Court provides:
within Defendants request Justice Wilson's appointment as case management judge to the
within action, and without consent of the Plaintiff, they 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 within
Defendants. A lawyer familiar with the case advised the Plaintiff to seek Justice Wilson's
recusal due to bias.
23. Kent J. explained the serious issues with judge shopping at para. 3 in Schwartz Estate v.
Kwinter, 2012 ABQB 389:
action was at the within Defendant's request [Transcript of Proceedings of February 28, 2014 in
the Whidden action, p. 25-26].
25. At the case management meeting in the within action on December 4,2014, in Justice Wilson's
usual fashion, consistent with his behaviour in the Whidden action, Justice Wilson yelled at the
Plaintiff without reason, refused to let her speak until well into the meeting though allowed
opposing counsel to speak freely throughout, and granted opposing counsel requests without
hearing from the Plaintiff. Justice Wilson also scheduled the Defendants' application for striking
at the same hearing for the within application for recusal, suggesting Justice Wilson is
predetermined to decide in favour of the Defendants. Further, on December 10,2014 Justice
Wilson entertained an ex-parte application by counsel for the Defendants who sought special
treatment, due to his role as Justice Wilson's personal legal counsel, to change the terms of the
order already set at the December 4,2014 case management meeting.
26. The ramifications and implications of the 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
Whidden action in May 2014. The biased actions include setting an expedited trial date at the
unilateral request of the within Defendant Ms. McMahon, contrary to the Alberta Rules of Court
8.4 and 8.5 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,
Justice Wilson allowed the within Defendant Ms. McMahon to serve a Whidden defendant
expert report just three months prior to trial contrary to the Rules, 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 stated availability for trial in June 2014 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.
27. Justice Wilson is currently a subject of the Plaintiff's appeal before the Alberta Court of Appeal
with constitutional questions relating to the discrimination of self-represented people in
violation of Section 15 of the Charter, which guarantees that every individual is equal before
and under the law and has equal benefit of the law. It is also common knowledge that Justice
Wilson has a number of issues with self-represented people in unrelated matters due to his bias
toward lawyers and has even been sued by a self-represented person for support of deceitful
lawyers: Somji v. Earl C. Wilson.
28. In Brown v. Canada (Attorney General), 2013 ONCA 18 (CanLII), 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.
ordered his removal due to reasonable apprehension of bias determined by his words and
actons. The Court stated at para. 76 and 77:
health effects. He now wishes to be case management judge for the within Defendants at their
request. The Plaintiff must not be subjected to such bias any further.
12. To date, there has been just one case management meeting in the within action. There is nothing
substantial in progress that would be disrupted by a new case management judge carrying on
with proceedings. Further, the purpose of a case management judge is to efficiently see a case to
trial and there is no benefit to Justice Wilson case managing these matters. Justice Wilson is,
quite frankly, the case management judge at the Defendants' judge shopping for the sole reason
that Justice Wilson has a pattern of deciding in favour of the within Defendants.
13. The issues of conflict of interest, judge shopping and apprehension of bias can only be cured by
the removal of Justice Wilson from these matters.
Disqualification of PLH as Counsel for the Defendants
14. It is a conflict of interest for PLH to represent the within Defendants while also representing
Justice Wilson.
15. The Plaintiff is being prejudiced by PLH acting as counsel for the Defendants given the
concurrent solicitor-client relationship with Justice Wilson, and will be prejudiced further if
PLH is not disqualified from representing the within Defendants.
16. A reasonable person would conclude that PLH is in a conflict of interest. Disqualification is the
appropriate remedy.
17. The maintenance of the public confidence in the integrity of the legal profession and the
administration of justice requires that PLH no longer represent the within Defendants in these
matters.
18. It is contrary to the principles in the Law Society of Alberta Code of Conduct for PLH to
continue as counsel for the Defendants.
19. Mr. Mack became a lawyer at PLH via merger of two firms. The case authorities are clear that
law firms can not escape the rules governing conflict of interest on this basis.
20. The Supreme Court of Canada decisions R. v. Neil, [2002] 3 S.c.R. 631 and Canadian National
Railway Co. v. McKercher LLP, 2013 SCC 39 support disqualification in the present
circumstances.
21. Regarding the issue of conflict of interest in cases of mergers and lawyer mobility, the Supreme
Court of Canada emphasized the importance of preserving the integrity of the justice system, in
the case of Martin v MacDonald Estate (Gray) [1990] S.C.R. 1235.
8:
Defendants. Rule 2.28 1(b) requires that an Affidavit of Service be filed for a Notice of Change
of Representation in order for the change to take effect. The Affidavit of Service for the change
of representation was not filed. Further, the filed Notice of Change of Representation states the
law firm counsel of record is "Peacock, Linder & Halt" though other materials suggest this is
not and was not the current legal name at the time of filing the change. In the Whidden action,
Justice Wilson refused to allow the Plaintiff to proceed with a case management application
until an Affidavit of Service was filed after a lawyer on limited retainer assisted her. The Rule
must be applied consistently and may not be relaxed for Justice Wilson's personal legal counsel.
Plaintiff's Proposed Claim Amendments
24. Rule 3.62 of the Alberta Rules of Court provides:
pleading can be amended no matter how careless or late the party is in seeking to amend.
27. Also in Balm, the Court further expanded on the low threshold for amendment of pleadings:
the amendments in one suit.
similar amendments in parallel actions against the same defendants should be allowed:
thoroughly reviewed and summarized the leniency of principles to be applied to amendments
not adding parties.
30. The Court asserted that there is a low threshold for amendment of pleadings and allowed the
amendments in Kent v. Martin, 2011 ABQB 298, in which the Plaintiff sought to amend
pleadings, including adding a Gowlings lawyer as defendant to his defamation claim.
31. An amendment may be permitted to correct an accidental omission in the description of an
element of a cause of action: Yasuda & Marine Insurance Co. Ltd. v. Nosira Shipping Ltd.,
[1985] F.C.J.
32. The amended pleadings of the Plaintiff are timely considering the unreasonable and repeated
delays of the Defendants in this matter, and the amendments do not cause prejudice to the
Defendants, are not hopeless, are not limited by statute, and were pleaded after the amendment
in the first instance due to relevant events arising later. The proposed amendments should be
allowed.
33. In addition, the proposed amendments to the Statement of Claim will facilitate clarifying the
legal issues before the Court and, therefore, facilitate a more timely and cost effective resolution
of the within action.
PART III: RELIEF SOUGHT
34. The Plaintiff (Applicant) respectfully requests the following relief:
The Action
1. This Action concerns the malicious and egregious harassment, defamation and fraud inflicted
by the Defendants Megan McMahon, Taryn Burnett and Gowling Lafleur Henderson LLP
(collectively, "the within Defendants") on the Plaintiff (Applicant), while acting in their
capacity as counsel for the defendant Dr. Peter Whidden ("the Whidden defendant") in the
underlying medical malpractice action, Carbone v. Whidden ("the Whidden action").
2. The Honourable Justice Earl C. Wilson was the case management judge in the Whidden action.
At the judge shopping request of the within Defendants, Megan McMahon, Taryn Burnett and
Gowling Lafleur Henderson LLP ("Ms. McMahon", "Ms. Burnett", and "Gowlings"), Justice
Wilson was assigned as the case management judge in the within action. That judge shopping
request included the within Defendants sending a letter dated January 27, 2014 to Justice
Wilson requesting his assignment as case management judge, without any prior notice or
canvassing of consent from the Plaintiff. Further, the judge shopping request was egregiously
made while the Plaintiff's recusal of Justice Wilson was in fact in progress in the Whidden
action on grounds including Justice Wilson's bias toward the within Defendants Ms. McMahon
and Ms. Burnett, and bias against the Plaintiff.
3. Counsel for the within Defendants, Ms. McMahon, Ms. Burnett and Gowlings, is Perry Mack
("Mr. Mack"), a lawyer at the law firm of Peacock, Linder & Halt LLP ("PLH"). It is significant
that Peacock, Linder & Halt LLP is also the personal legal counsel firm of Justice E.C. Wilson,
the within case management judge. Justice Wilson acknowledged that PLH is his personal legal
counsel at the first case management meeting for the within action held on December 4, 2014,
further to the Plaintiff's application filed November 18,2014 for recusal of Justice Wilson from
the within action.
4. The action against the Defendant Ms. Burnett with Action No. 1301-03943 was commenced on
March 28,2013. The Defendant Ms. Burnett was removed from the Whidden action in May
2013 due to misconduct and has been under investigation by the Law Society of Alberta for
over one and a half years to date.
5. The within Defendants have unreasonably and repeatedly delayed and adjourned the Plaintiffs
applications for amendments from December 2013 to March 2014, and then again to December
12014, so that their judge of choice, Justice Wilson, could hear the applications. The amendments
sought by the Plaintiff included the addition of Ms. McMahon as a defendant. The unreasonable
delays necessitated a separate action against the Defendant Ms. McMahon, with Action No.
1401-00821, filed on January 22, 2014. The Plaintiff seeks consolidation of the actions and
approval of her proposed amendments.
Application Issues Raised
6. The circumstances of concurrent legal representation by PLH and Mr. Mack for both the within
defendants and Justice Wilson, and the egregious judge shopping by the within Defendants for
Justice Wilson's assignment as case management judge, represent a massive conflict of interest.
It is essential to the administration of justice and the public's confidence that Justice Wilson be
recused.
7. The conflict of interest also warrants that counsel for the Defendants, PLH and Mr. Mack, be
disqualified and removed from the within action.
8. The Plaintiff's proposed claim amendments should be allowed.
PART II: LAW AND ARGUMENT
Recusal of Justice E.C. Wilson
Conflict of Interest, Reasonable Apprehension of Bias and Judge Shopping
10. The representation of the within Defendants and the within case management judge, Justice
Wilson, by the same law firm, PLH, represents a serious conflict of interest. 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.
11. Justice Wilson acknowledged at the case management meeting on December 4, 2014 that PLH
is his personal legal counsel. PLH acts for Justice Wilson in unrelated litigation. One matter in
which PLH represents Justice Wilson is the action Somji v. Earl C. Wilson, which was in
progress at the time of that case management meeting.
10. It is trite law that a conflict of interest and reasonable apprehension of bias can be drawn from
certain relationships between a presiding judge and a party appearing before him, such as a
presiding judge's past client appearing before him as a party. Here, in the present circumstances,
the issue is not merely a past association with a party but in fact an ongoing solicitor-client
relationship where Justice Wilson is the client, and counsel for the within Defendants is his
personal legal counsel. The circumstances are further concerning given counsel for the within
Defendants is an authority to Justice Wilson for legal advice. This unique situation makes the
conflict of interest far more serious and gives rise to reasonable apprehension of bias.
11. The Plaintiff is being prejudiced by the dual representation by PLH and will be prejudiced
further if Justice Wilson does not recuse himself. Recusal is the appropriate remedy.
12. A reasonable person would conclude that Justice Wilson is in a conflict of interest and that he is
predisposed to decide in favour of the party represented by his personal legal counsel. A
reasonably informed bystander could reasonably perceive bias on the part of Justice Wilson.
13. The continuation of Justice Wilson as case management judge would put the administration of
justice in disrepute.
14. The Supreme Court of Canada has affirmed that disqualification is appropriate when a law firm
is in a conflict of interest and the bright line rule on its face supports disqualification: R. v. Neil,
[2002] 3 S.C.R. 631; Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39.
15. The test for apprehension of bias and the importance of impartiality in our justice system is set
out by the Supreme Court of Canada in Wewaykum Indian Band v. Canada, 2003 SCC 45
(CanLIl), [2003] 2 S.C.R. 259:
[57] ... Simply put, public confidence in our legal system is rooted in the fundamentalbelief that those who adjudicate in law must always do so without bias or prejudice andmust be perceived to do so.[58] The essence of impartiality lies in the requirement of the judge to approach the caseto be adjudicated with an open mind ....[60] ... the apprehension of bias must be a reasonable one, held by reasonable and rightminded persons, applying themselves to the question and obtaining thereon the requiredinformation. In the words of the Court of Appeal, that test is "what would an informedperson, viewing the matter realistically and practically - and having thought the matterthrough - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."16. The public confidence in the justice system is dependent on the impartiality of judges in making
decisions. Maintaining this confidence requires not only that a judge is in fact impartial, but
that they are also perceived to be impartial:
It is not merely of some importance but is of fundamental importance that justice shouldnot only be done, but should manifestly and undoubtedly be seen to be done: The King v.Sussex Justices, Ex parte McCarthy, [1924] 1 KB 256
17. The public's perception of ajudge's impartiality must always be maintained for the
administration of justice, even if there is no evidence of a bias or conflict of interest:
Bailey v. Barbour, 2012 ONCA 325
18. The chapter on Impartiality in the Canadian Judicial Council's document Ethical Principles for
Judges states "Judges must be and should appear to be impartial with respect to their decisions
and decision making" and "the appearance of impartiality is to be assessed from the perspective
of a reasonable, fair-minded and informed person."
19. The same document refers to a "cooling off period" in the section "Former Clients". Even ifit
were the less serious situation of a former client, Justice Wilson's direct and current
involvement with PLH does not meet the direction: "(c) with respect to the judge's former ...
clients, the traditional approach is to use a 'cooling off period', often established by local
tradition at 2, 3 or 5 years ... "
20. In Boardwalk REIT LLP v. Edmonton (City), 2008 ABCA 176, a Court of Appeal justice recused
himself because he had hired an accountant who was with the same national firm of chartered
accountants as the people engaged by Boardwalk for its assessment appeals. In the present
matters, there is a much more direct connection between Justice Wilson and the law firm
representing the Defendants, making the decision to recuse an obvious and necessary choice.
21. Rule 13.1 of the Alberta Rules of Court provides:
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.22. The circumstances of judge shopping in the present situation are remarkable. Not only did the
within Defendants request Justice Wilson's appointment as case management judge to the
within action, and without consent of the Plaintiff, they 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 within
Defendants. A lawyer familiar with the case advised the Plaintiff to seek Justice Wilson's
recusal due to bias.
23. Kent J. explained the serious issues with judge shopping at para. 3 in Schwartz Estate v.
Kwinter, 2012 ABQB 389:
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.24. Justice Wilson acknowledged that his assignment as case management judge to the within
action was at the within Defendant's request [Transcript of Proceedings of February 28, 2014 in
the Whidden action, p. 25-26].
25. At the case management meeting in the within action on December 4,2014, in Justice Wilson's
usual fashion, consistent with his behaviour in the Whidden action, Justice Wilson yelled at the
Plaintiff without reason, refused to let her speak until well into the meeting though allowed
opposing counsel to speak freely throughout, and granted opposing counsel requests without
hearing from the Plaintiff. Justice Wilson also scheduled the Defendants' application for striking
at the same hearing for the within application for recusal, suggesting Justice Wilson is
predetermined to decide in favour of the Defendants. Further, on December 10,2014 Justice
Wilson entertained an ex-parte application by counsel for the Defendants who sought special
treatment, due to his role as Justice Wilson's personal legal counsel, to change the terms of the
order already set at the December 4,2014 case management meeting.
26. The ramifications and implications of the 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
Whidden action in May 2014. The biased actions include setting an expedited trial date at the
unilateral request of the within Defendant Ms. McMahon, contrary to the Alberta Rules of Court
8.4 and 8.5 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,
Justice Wilson allowed the within Defendant Ms. McMahon to serve a Whidden defendant
expert report just three months prior to trial contrary to the Rules, 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 stated availability for trial in June 2014 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.
27. Justice Wilson is currently a subject of the Plaintiff's appeal before the Alberta Court of Appeal
with constitutional questions relating to the discrimination of self-represented people in
violation of Section 15 of the Charter, which guarantees that every individual is equal before
and under the law and has equal benefit of the law. It is also common knowledge that Justice
Wilson has a number of issues with self-represented people in unrelated matters due to his bias
toward lawyers and has even been sued by a self-represented person for support of deceitful
lawyers: Somji v. Earl C. Wilson.
28. In Brown v. Canada (Attorney General), 2013 ONCA 18 (CanLII), 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 [page 357] 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.10. In Nazarewycz v. Dool, 2009 ABCA 70, the 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 toan 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.11. The Plaintiff has already been subjected to six years of Justice Wilson's bias, with adverse
health effects. He now wishes to be case management judge for the within Defendants at their
request. The Plaintiff must not be subjected to such bias any further.
12. To date, there has been just one case management meeting in the within action. There is nothing
substantial in progress that would be disrupted by a new case management judge carrying on
with proceedings. Further, the purpose of a case management judge is to efficiently see a case to
trial and there is no benefit to Justice Wilson case managing these matters. Justice Wilson is,
quite frankly, the case management judge at the Defendants' judge shopping for the sole reason
that Justice Wilson has a pattern of deciding in favour of the within Defendants.
13. The issues of conflict of interest, judge shopping and apprehension of bias can only be cured by
the removal of Justice Wilson from these matters.
Disqualification of PLH as Counsel for the Defendants
14. It is a conflict of interest for PLH to represent the within Defendants while also representing
Justice Wilson.
15. The Plaintiff is being prejudiced by PLH acting as counsel for the Defendants given the
concurrent solicitor-client relationship with Justice Wilson, and will be prejudiced further if
PLH is not disqualified from representing the within Defendants.
16. A reasonable person would conclude that PLH is in a conflict of interest. Disqualification is the
appropriate remedy.
17. The maintenance of the public confidence in the integrity of the legal profession and the
administration of justice requires that PLH no longer represent the within Defendants in these
matters.
18. It is contrary to the principles in the Law Society of Alberta Code of Conduct for PLH to
continue as counsel for the Defendants.
19. Mr. Mack became a lawyer at PLH via merger of two firms. The case authorities are clear that
law firms can not escape the rules governing conflict of interest on this basis.
20. The Supreme Court of Canada decisions R. v. Neil, [2002] 3 S.c.R. 631 and Canadian National
Railway Co. v. McKercher LLP, 2013 SCC 39 support disqualification in the present
circumstances.
21. Regarding the issue of conflict of interest in cases of mergers and lawyer mobility, the Supreme
Court of Canada emphasized the importance of preserving the integrity of the justice system, in
the case of Martin v MacDonald Estate (Gray) [1990] S.C.R. 1235.
...The most important and compelling [factor] is the preservation of the integrity of the justice system. It is fundamentally important that justice not only be done but appear to be done in the eyes of the public. Neither the merger of law firms nor the mobility of lawyers can be permitted to adversely affect the public's confidence in the judicial system.Therefore a stricter duty must be imposed on lawyers ...This conclusion should not be taken as an impediment to the mobility of lawyers, the merger of law firms or the growth of very large firms; rather, it is a recognition of a professional responsibility owed by lawyers to the litigation process so that the process may retain the respect of the public.22. These principles were echoed by the Alberta Court of Appeal in Michel v. Lafrentz 1992 ABCA
8:
The Supreme Court of Canada declines to relax the standards of conflict of interest to accommodate larger law firms or to accommodate mergers ...There is a priority in the maintenance of public confidence in the legal profession's integrity ...A partnership is not a separate legal person, so each partner in Ogilvie & Company is the lawyer for each client of that firm.23. Further, and in any event, Mr. Mack is not properly on the record as counsel for the within
Defendants. Rule 2.28 1(b) requires that an Affidavit of Service be filed for a Notice of Change
of Representation in order for the change to take effect. The Affidavit of Service for the change
of representation was not filed. Further, the filed Notice of Change of Representation states the
law firm counsel of record is "Peacock, Linder & Halt" though other materials suggest this is
not and was not the current legal name at the time of filing the change. In the Whidden action,
Justice Wilson refused to allow the Plaintiff to proceed with a case management application
until an Affidavit of Service was filed after a lawyer on limited retainer assisted her. The Rule
must be applied consistently and may not be relaxed for Justice Wilson's personal legal counsel.
Plaintiff's Proposed Claim Amendments
24. Rule 3.62 of the Alberta Rules of Court provides:
A party may amend the party's pleading, including an amendment to add, remove, substitute or correct the name of a party, as follows:(b) after pleadings close,25. Rule 3.65 states:
(i) for the addition, removal, substitution or correction of the name of a party, with the Court's prior permission in accordance with rule 3.74, or(ii) for any other amendment, with the Court's prior permission in accordance with rule 3.65;
(1) Subject to subrule (5), before or after close of pleadings, the Court may give permission to amend a pleading.26. Justice Cote stated in Balm v. 3512061 Canada Ltd, 2003 ABCA 98 (CanLII) that generally any
pleading can be amended no matter how careless or late the party is in seeking to amend.
27. Also in Balm, the Court further expanded on the low threshold for amendment of pleadings:
One must recall that the original statement of claim here needed no evidence at all, and that any plaintiff can always issue a new statement of claim if the limitation period has not expired. Lack of a factual basis is ordinarily not a ground to strike out a pleading, so long as it alleges facts which (if true) would have given a cause of action (or defence).And a plaintiff with two statements of claim could likely then have the two suits consolidated or tried together.And it is desirable that the amendments in parallel suits be similar; that is a ground not to deny
the amendments in one suit.
All of these analogies confirm the authorities above which say that a modest degree of evidence justifies an amendment to pleadings within the limitation period. And the analogies show that requiring a stiffer test to amend would be pointless, producing little or no practical result. To require a stiffer standard for evidence to amend would produce a motion for summary judgment in favour of the defendant, without requiring that the defendant swear to anything. That is contrary to all principle. And attempts to argue or apply a stiffer test have delayed this suit for a year and a half.28. In Hatch v. Kelly Peters & Assoc. Ltd., 1988 CanLII 3111 (BC CA), the Court affirmed that
similar amendments in parallel actions against the same defendants should be allowed:
In my view, under those principles, the judge in chambers in this case ought to have allowed the amendments sought and there is a further consideration, that when identical or practically identical amendments were sought in a parallel action against the same defendants I believe the judge was really bound to allow amendments in this case or to express reasons why he refused to do what his colleague judge did. I would allow the appeal and give leave for the amendments which were disallowed by the chambers judge.29. In Manson Insulation Products Ltd. v Crossroads C & I Distributors, 2011 ABQB 51, the Court
thoroughly reviewed and summarized the leniency of principles to be applied to amendments
not adding parties.
30. The Court asserted that there is a low threshold for amendment of pleadings and allowed the
amendments in Kent v. Martin, 2011 ABQB 298, in which the Plaintiff sought to amend
pleadings, including adding a Gowlings lawyer as defendant to his defamation claim.
31. An amendment may be permitted to correct an accidental omission in the description of an
element of a cause of action: Yasuda & Marine Insurance Co. Ltd. v. Nosira Shipping Ltd.,
[1985] F.C.J.
32. The amended pleadings of the Plaintiff are timely considering the unreasonable and repeated
delays of the Defendants in this matter, and the amendments do not cause prejudice to the
Defendants, are not hopeless, are not limited by statute, and were pleaded after the amendment
in the first instance due to relevant events arising later. The proposed amendments should be
allowed.
33. In addition, the proposed amendments to the Statement of Claim will facilitate clarifying the
legal issues before the Court and, therefore, facilitate a more timely and cost effective resolution
of the within action.
PART III: RELIEF SOUGHT
34. The Plaintiff (Applicant) respectfully requests the following relief:
(a) An Order granting the recusal of Justice E.C. Wilson from the within action;
(b) An Order disqualifying PLH from acting in the within action for the within Defendants and removing PLH as lawyer of record for the within Defendants;
(c) An Order allowing the Plaintiff's proposed claim amendments;
(d) An Order granting costs of this Application to the Plaintiff on such a basis as this Honourable Court deems appropriate in the circumstances; and
(e) Such further and other relief this Honourable Court deems just.
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