Conflicts of interest grow in the harassment, defamation and fraud action against the defendants Megan McMahon, Taryn Burnett and Gowlings, and related matters.
In the Carbone v. Megan McMahon and Gowlings lawsuit commenced on January 22, 2014, Justice E.C. Wilson was removed as case management judge from the case in January 2015 on grounds of conflict of interest, apprehension of bias, and judge shopping. Since then, there have been two more case management judges. The 2nd case management judge voluntarily recused himself due to conflict of interest.
The 3rd case management judge is Justice D.B. Nixon. It was disclosed at a case management meeting on May 7, 2015 that defence counsel Perry Mack was Justice Nixon's lawyer for several years from 2011 through 2013. As such, there has been no significant passage of time that changes the long-term solicitor-client relationship and Mr. Mack must still be considered Justice Nixon's lawyer. Apprehension of bias can not be ignored either.
Needless to say, after the conflict of interest that in part resulted in Justice Wilson's removal as case management judge involving Mr. Mack's law firm representing Justice Wilson in unrelated matters, it is boggling that neither Mr. Mack nor his client Justice Nixon have voluntarily removed themselves from the case so far. An application is being scheduled by the plaintiff for recusal of Justice Nixon.
In the underlying medical malpractice matter of Carbone v. Dr. Peter Whidden, the plaintiff has sought to restrict involvement of Megan McMahon, defence counsel for Dr. Whidden, in that matter due to conflict of interest. While the Court found it did not have jurisdiction on conflict of interest concerning an opposing lawyer, it directed that Megan McMahon may not speak on matters relating to her own conduct in the Whidden matter. The plaintiff's motion filed for this and other matters can be viewed here.
The conduct matters include harassment of the plaintiff and fraud allegations involving Ms. McMahon making egregious misrepresentations as to costs, including misstating the date she served an offer to settle the Whidden matter as being 9 years earlier in 2005, rather than the actual offer date of March 4, 2014 which she failed to voluntarily disclose, misrepresenting column costs, in addition to misstating numerous cost items for unjust profit. After the plaintiff stated her intentions in July 2014 that she was amending her action against Ms. McMahon to include fraud, Ms. McMahon sent another formal offer to settle the Whidden lawsuit on August 22, 2014. The plaintiff has refused the offer in the interests of justice which includes seeking a rightful declaration of Dr. Whidden's negligence requiring the plaintiff to undergo multiple corrective surgeries, and because Ms. McMahon has not honoured terms of formal offers to settle she has served in the past.
In the Law Society of Alberta complaints matter, Gowlings lawyer James Eamon was recently appointed president of the Law Society, in its self-described record-low voting participation. It is a significant conflict of interest for Mr. Eamon to oversee functions handling complaints of the defendant lawyers, who are his Gowlings partners. Yet under James Eamon's direction the LSA has refused the plaintiff's request for an independent group to handle the complaints.
