The proposed amendments allege the defendants' further and ongoing harassment of the plaintiff, misleading of the courts, and fraud by the defendant Megan McMahon. The plaintiff first attempted to have her amendment application heard in December 2013, but the defendants delayed it to March 2014, and then again to December 2014 in abuse of process.
After the removal of Justice E.C. Wilson as case management judge in January 2015, whom the defendants sought to have appointed through judge shopping, the current case management judge, Justice D.B. Nixon, was appointed.
Justice Nixon happens to be the client of Perry Mack, the lawyer of the defendants, raising yet another significant conflict of interest in this case. It was disclosed at a case management meeting on May 7, 2015 before Justice Nixon that Mr. Mack was Justice Nixon's lawyer for a number of years. A recusal application has been ordered to be heard at a date to be determined.
In an attempt to avoid the plaintiff's long-awaited case amendments from being heard, at the May case management meeting Mr. Mack told Justice Nixon that it was previously ordered that the plaintiff's application for amendments be heard after their recent application to attempt to dispose of the case was heard, and that the plaintiff's amendment application would not be heard at all if their application was granted. This is absolutely false and misleading, as evidenced by the transcripts of prior hearings in the case. The plaintiff's application for amendments has always been ordered to be heard.
The plaintiff has had to file an appeal to change the sequence of applications to ensure her application for amendments is heard in the interests of justice. It is common legal principle that any amendments be heard before an application for striking by defendants, as it is the pleadings in the Statement of Claim that form the basis of a case.
The defendants are merely trying to take advantage of the plaintiff being self-represented which the courts must not allow, as mandated by the Supreme Court of Canada which has directed that all courts must assure self-represented people access to justice.
Mr. Mack did not give the plaintiff a copy of the filed order from the May 7, 2015 case management meeting until June 29, 2015. The plaintiff then immediately filed an appeal the same day, but the timing for filing an appeal had changed under the new Court of Appeal rules and she had to file an application to request an extension.
Below is the application of the plaintiff filed July 24, 2015 for extension to proceed with her appeal.
Memorandum of Argument filed July 24, 2015
Affidavit filed July 24, 2015
PART
I: RELIEF SOUGHT
- The Applicant/Plaintiff requests an extension for her Notice of Appeal, already filed on June 29, 2015, for appeal action no. 1501-0165AC, further to the subsequent direction from this Court that she must seek the extension to proceed with her appeal. The Applicant is appealing the sequence of applications ordered to be heard by the new case management judge, Mr. Justice D.B. Nixon, who operated erroneously based on misstatements of prior events by counsel for the Respondents/Defendants (also Justice Nixon's personal lawyer).
PART
II: BACKGROUND AND STATEMENT OF FACTS
- The Court of Queen's Bench action with action no. 1401-00821 arises from the malicious harassment, defamation, fraud and misleading of the courts by the Respondents/Defendants Megan McMahon, Taryn Burnett and Gowling Lafleur Henderson LLP, while acting in their capacity as counsel for the defendant Dr. Peter Whidden in the underlying medical malpractice action. In that underlying action, the Respondents brought a series of malicious, frivolous applications in the months preceding their unmeritorious application for summary judgment in attempt to harm the Applicant and confuse the court. All of the Respondents' malicious applications were dismissed by the court, and their summary judgment application was also properly dismissed. The Respondent Ms. Burnett was removed as counsel in that matter for misconduct. The Respondent Ms. McMahon's continuation of reprehensible and malicious behaviour was so egregious the ordeal led to health complications to the Applicant as noted by her doctor, and additional damages.
- Ms. McMahon's egregious conduct continued over time, which includes she fraudulently misrepresented costs for which she refused to produce supporting detail [Applicant's Appeal Affidavit filed July 24, 2015], failed to voluntarily disclose the actual service date on which she served a formal offer to the Applicant and misrepresented the date for service as being nine years earlier, claimed costs for applications for which the Applicant was successful (including their repeated failure in refusing to produce Dr. Whidden for questionings, and time for questionings Dr. Whidden was ordered to attend) and falsely stated there were no costs to parties for some applications (including the summary judgment application the Applicant was successful on), falsely misrepresented orders in stating the orders not containing costs (differentiated from the orders specifying costs) somehow were costs she could seek which is in fact opposite of the justices' direction, and sought costs for purported application dates which were duplicated or did not even exist, all in the absence of any supporting detail whatsoever. Additional conduct issues and damages to the Applicant therefrom mounted over time, necessitating further claim amendments against Ms. McMahon.
- After the Applicant stated her intention to add fraud to the action against Ms. McMahon, Ms. McMahon served to the Applicant a further offer to settle the underlying Whidden action on August 22, 2014 [Applicant's Appeal Affidavit filed July 24, 2015], on condition that the Applicant drop her important Whidden matter appeals on merits and costs. The Applicant refused that offer in the interests of justice.
- The Respondents have repeatedly and unreasonably delayed and adjourned the Applicant's application for amendments in the within action against them since she first sought to have amendments heard in December 2013, now one and a half years ago. The Respondents sought to have their judge of choice Mr. Justice Earl Wilson assigned through judge shopping via letter to him dated January 28, 2014. Remarkably, this judge shopping was done while the Applicant's application for recusal of Justice E.C. Wilson was in fact in progress in the underlying Whidden action. Justice Wilson was removed from the action against the within Respondents in January 2015 on grounds of conflict of interest, apprehension of bias, and judge shopping, and further to the Applicant's brief for recusal filed January 19, 2015 [Applicant's Appeal Affidavit filed July 24, 2015]. The Respondents' unsuccessful judge shopping therefore further delayed the Applicant's action and claim amendments by an entire year, and the Respondents' latest tactics continue to cause unreasonable delays.
- The second case management judge assigned voluntarily recused himself in February 2015 due to conflict of interest. The third and present case management judge is the Honourable Mr. Justice D.B. Nixon.
- Perry Mack, QC, counsel for the within Respondents is the personal lawyer of Justice Nixon, giving rise to conflict of interest, for which a recusal application has been ordered. It was disclosed at a case management meeting on May 7, 2015 that Mr. Mack was Justice Nixon's personal lawyer from 2011 through 2013 and that they had known each other for a number of years. Given the lengthy and relatively recent solicitor-client relationship, Mr. Mack must still be considered Justice Nixon's lawyer.
- In addition to the recusal application, applications for amendments and striking and sequence of their hearing were also discussed at the May 7, 2015 case management meeting. The Applicant appeals from the ordered sequence of applications to be heard which was based on Mr. Mack's strategic misstatements of prior events intended to confuse Justice Nixon who then operated erroneously with regards to the amendment application.
- The Applicant filed proposed claim amendments in December 2013, February 2014, July 2014, December 2014 and January 2015, all of which remain to be heard due to the Respondents' ongoing delays. The application for claim amendments was scheduled to be heard by Justice Wilson on February 2, 2015 as directed at the case management meeting on December 4, 2014. It should be noted that the Respondents earlier adjourned the Applicant's application for amendments from December 18, 2013 to March 24, 2014 and then again to be heard by Justice Wilson, with Mr. Mack's representation to the Court at that time that he understood the Applicant's amendment application would be heard.
- After viewing the Applicant's valid proposed claim amendments waiting to be heard and unreasonably refusing to agree to any of them, the Respondents then filed an application for striking. In a blatant misrepresentation and in fear of the amendments being heard, Mr. Mack told his client Justice Nixon at the May 7, 2015 case management meeting, that the December 4, 2014 order under Justice Wilson implied that the Applicant's amendment application was not to be heard until after the Respondents' application for striking, and that it would not be heard at all if the striking was granted. This is absolutely false. The Applicant's application for amendments in waiting since December 2013 with additional proposed amendments filed thereafter was indeed ordered to be heard in any event, as evidenced by the December 4, 2014 transcript of proceedings [Transcript of Proceedings - Applicant's Appeal Affidavit filed July 24, 2015], including at these passages:
p.11, lines 16- 27:
MS. CARBONE: Mr.
Mack is trying to oppose my application
for amendment
altogether, despite that he gave his word to the court that
the
application would be adjourned
before you.
THE COURT: But it
can. I can still hear it.
…
I will still do the
second part, that is the amendment matter...
p.31, lines
15- 17:
THE
COURT: The matter of recusal can be brought at the same time when the
issue about
consolidation and amendment is dealt with and, of course, I will be
hearing all of those matters.
p.31, lines 27- 28:
THE COURT: So the
notion is, therefore, that we will require two days to do the
hearing
on the recusal, as well as the
matter of consolidation and the matter of
amendment.
- The Applicant attended the May 7, 2015 case management meeting before Justice Nixon understanding it was merely to schedule applications, including her amendment application, and was ambushed with Mr. Mack's misrepresentation of it. The Applicant did not expect she would need to have the transcript and amendment materials with her to show what actually happened.
The
Present Application
- The order appealed arose from the case management meeting on May 7, 2015, however Mr. Mack failed to serve the order until June 29, 2015 [Applicant's Appeal Affidavit filed July 24, 2015].
- Upon receiving the late served order from Mr. Mack, the Applicant filed a Notice of Appeal with this Court the same day, June 29, 2015, together with payment of the $600 filing fee.
- The Applicant had raised concerns with the hearing sequence of applications discussed at the May 7, 2015 case management meeting and Justice Nixon told her she was entitled to appeal the order if she was not satisfied. Mr. Mack has also been aware of the Applicant's intention to appeal since the Applicant sent a letter dated June 8, 2015 to Justice Nixon with copy to Mr. Mack [Applicant's Appeal Affidavit filed July 24, 2015], in the context of providing availability for scheduling of applications, yet Mr. Mack did not serve the order until nearly two months after the case management meeting. To date the applications have not been scheduled.
- Subsequent to the filing of the Notice of Appeal, this Court advised the Applicant that she would need to seek an extension for her Notice of Appeal as it was filed out of time.
- The Applicant understood that a Notice of Appeal must be filed within 20 days from the date the order is served, and the Applicant operated under that timeframe, pursuant to former Rule of Court 506(1)(b), which provides:
506(1)
Subject to Rule 514(3) and Rule 577.3, notice of appeal shall be
filed in the office of the clerk of the judicial district in which
the proceedings have been carried on and in the office of the
Registrar of the court to which appeals from that judicial district
are required to go, within 20 days
(b)
in the case of an order, after the order has been signed issued and
served
- The Applicant was not aware that the timeframe for filing a Notice of Appeal changed to 20 days from pronouncement, instead of 20 days from service, when the new Court of Appeal Rules came into effect in the fall of 2014, and was waiting to receive the order from Mr. Mack.
PART
III: GROUNDS AND ARGUMENT
- Rule 14.73 (b) of the Alberta Rules of Court provides that:
In
addition to the powers provided for in other Parts of these rules, a
single appeal judge or a panel of the Court of Appeal may:
(b)
cure any contravention, non compliance or irregularity in
procedure, or permit or direct any amendment or any deviation from
the requirements of these rules with respect to the form or filing of
any document.
- The Applicant had every intention of proceeding with an appeal from the May 7, 2015 order. This is confirmed in the Applicant's email correspondence dated June 1, 2015 to Mr. Mack and letter to Justice Nixon dated June 8, 2015. Having full knowledge that the Applicant intended to appeal, Mr. Mack strategically served the order on the self-represented Applicant nearly two months after the case management meeting.
- The Applicant diligently filed her Notice of Appeal immediately upon finally receiving the order from Mr. Mack.
- The Applicant's proposed claim amendments are important and valid. The interests of justice, including access to justice, require that her longstanding application for amendments be heard. It would be unfair to deprive the Applicant of her right to have her amendment application heard, which was in fact already ordered by prior justices in March 2014 and December 2014. In order for the Applicant to be assured this right, her appeal with action no. 1501-0165AC must be allowed to proceed.
- The Respondents' tactics must be seen for what they are – repeated unreasonable adjournments in abuse of process intended to delay and avoid the Applicant's proposed amendments for a year and a half and until their judge of choice they judge shopped for could hear them, and when that plan failed, confusion of the new case management judge inclined to agree with his lawyer into allowing the Respondents' striking application to go first with the potential for not hearing the Applicant's important and long-awaited amendment application at all.
- There is no prejudice to the Respondents with the granting of the extension. It is in fact the Applicant who has been prejudiced by the Respondents' ongoing unreasonable delays and adjournments of her application for amendment for an astounding one and a half years. Also, the applications have not yet been scheduled.
- Justice Nixon's agreement with his lawyer Mr. Mack's statement that the amendments would not need to be heard if the striking application is heard first and granted is void of any legal principles or valid reason: Tran.
- The Applicant's appeal is arguable and has a good chance of success. The grounds for appeal include procedural unfairness and error in law which are subject to a standard of correctness.
- The Applicant has completed her Appeal Record [copy attached to Applicant's Appeal Affidavit filed July 24, 2015], and it is ready to be filed.
- The case authorities are clear that an appeal only need be reasonably arguable to grant extension, that there is a low threshold for amendments, and that amendments must be heard before any application for striking.
- In Broeker v. Bennett Jones, 2009 ABCA 162 (CanLII), Hunt J. granted the self-represented applicant an extension for her Notice of Appeal from a case management judge's interlocutory order, because the respondent's counsel failed to serve the order within a reasonable period of time resulting in that applicant's late-filing of the Notice of Appeal. In granting the extension, the Court cited Kerr v. Robert Matthews Investments, 2008 ABCA 193 (CanLII), 433 A.R. 251 in affirming that what “must be demonstrated is a reasonable chance of success, not certainty or even likely victory. Here, the applicant's case is not hopeless ...”: para. 7
- A misunderstanding of a rule as to when time to appeal begins and an intention shown to appeal ought to incline a court to grant an extension for filing of a Notice of Appeal; a court should be generous in the early days of new rules: Byers v. Pentex Print Master, 2003 CanLII 42272 (ON CA), para. 48-50
- In Tran v. University of Western Ontario, 2015 ONCA 295, the Ontario Court of Appeal found the motion judge erred by failing to grant leave to amend prior to hearing an application for striking. Citing South Holly Holdings Ltd. v. The Toronto-Dominion Bank, 2007 ONCA 456, the court stated that “leave to amend should be denied only in the clearest of cases.” The court referred to South Holly Holdings Ltd. at para. 6:
A
litigant’s pleading should not lightly be struck without leave to
amend. To the contrary, leave to amend should be denied only in the
clearest of cases. This is particularly so where the deficiencies in
the pleading may be cured by an appropriate amendment…
- This Court asserted in Balm v. 3512061 Canada Ltd, 2003 ABCA 98 (CanLII) that the threshold for amendments is low and that any pleading can be amended no matter how careless or late a party is in seeking to amend. The Court further stated that it is desirable that amendments in parallel suits against the same defendants be similar and then consolidated, and that this is a ground not to deny amendments in one suit. The Court also noted the danger in requiring a stiff standard to amend and that such 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.” These principles for allowing amendments are also stated in Hatch v. Kelly Peters & Assoc. Ltd., 1988 (BC CA).
- Further, the order of Justice Nixon states no terms and is not technically valid, and even if there was not direction for the prior order to hear the Applicant's amendment application in any event, though the December 4, 2014 transcript indeed proves this was directed, a recused judge's order is void (Wewaykum) and thus it is an error for Justice Nixon, under insistence of his lawyer Mr. Mack, to assume we are still under the order of Justice Wilson.
- The Canadian Judicial Council's Statement of Principles on Self-Represented Litigants, September 2006, directs that “Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons” and “...[I]t is important that judges, court administrators and others facilitate, to the extent possible, access to justice for self-represented persons.” Granting the self-represented Applicant an extension for her Notice of Appeal is consistent with this direction.
- This factum appears online for transparency.
