Appeal success mentioned in National Self-Represented Litigants Project Podcast

The self-represented plaintiff Carbone is pleased to be quoted and have her recent successful decision about reasonable apprehension of judicial bias mentioned in the latest podcast ("In Other News" segment) and newsletter article by the National Self-Represented Litigants Project (NSRLP).

The Alberta Court of Appeal decision Carbone v McMahon, 2017 ABCA 384, is about issues of apprehension of bias regarding a case management judge who had a recent solicitor-client relationship with the opposing defence lawyer appearing before him in this lawyer abuse case. The judge refused to recuse himself, but the appeal court found there was insufficient disclosure of that solicitor-client retainer and set aside the judge's decision declining recusal. The appeal court also noted the judge did not hear the plaintiff's application for his recusal for two years. More can be read on this decision here.

The NSRLP is focused on improving the justice system for self-represented litigants (SRLs) through research, dialogue on SRL issues with key players in the justice system, and providing resources for SRLs on the NSRLP website. The NSRLP also successfully intervened in the recent Supreme Court of Canada case, Pintea v Johns, SCC 2017 23, which contributed to the SCC's important endorsement of the Statement of Principles on Self-Represented Litigants promoting access to justice for SRLs.

Carbone appeal successful; New case management judge to be assigned

The Alberta Court of Appeal has granted the plaintiff/appellant Carbone's appeal of the case management judge's refused recusal, and asked the Chief Justice of the Court of Queen's Bench to assign a new case management judge in the Carbone case against defendant lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings.

In this important ruling about apprehension of bias, and impartiality required for public confidence in the justice system, Carbone v McMahon, 2017 ABCA 384, issued November 16, 2017, the Court of Appeal gave two concurring in result decisions. It found various issues with case management judge Justice D.B. Nixon's handling of matters and extent of disclosure of recent retainer he had with defence counsel on this case, Perry Mack.

Mack had been Justice Nixon's own lawyer in an unrelated matter, with their solicitor-client relationship being in the recent past, ending only 10 months before Justice Nixon took disposition of the Carbone case. A significant factor for granting the appeal was Justice Nixon's insufficient disclosure of their retainer that is required for informed recusal proceedings and meaningful appellate review. The appeal court also found concerning the delay with Justice Nixon not hearing the application for his recusal until two years after the plaintiff initiated it (nor was there any other case management progression during that two year interval).

The plaintiff's grounds for appeal including matters of conflict of interest, reasonable apprehension of bias and unduly delay are summarized in this prior post.

Justice Nixon was the third case management judge in this case. The first case management judge Justice Wilson was removed in January 2015, and the second case management judge recused himself on his own motion in February 2015 when he realized one of the defendants was the daughter of his friend.

The amendments and striking applications which were heard in February 2017 with decision that had still been pending, and the rest of the plaintiff's case about litigation misconduct by lawyers Megan McMahon and Taryn Burnett, will now return to the Court of Queen's Bench and proceed before a new case management judge.

This ruling is an important victory for the self-represented plaintiff, and also landmark appellate jurisprudence to be applied on apprehension of bias matters where there is connection between judges and lawyers appearing before them and retainer disclosure requirements.

Defendants Taryn Burnett, Gowlings give contradictory excuses for pulling Plaintiff's credit report

As indicated in this earlier blog post, defendant Taryn Burnett pulled the credit report of the opposing self-represented plaintiff without the plaintiff's knowledge or consent, and for no valid reason, constituting a serious privacy breach.

Since then, Burnett and her law firm Gowlings have given contradictory excuses for the credit report pull throughout two different forum processes with which the plaintiff is pursuing grievances - the Office of the Information and Privacy Commissioner (OIPC) which has thus far ruled on the preliminary matter of Gowlings' refused response, and the Law Society of Alberta. The moving target of Burnett/Gowlings' shifting excuses has delayed and frustrated the plaintiff's pursuit of justice through the forums' processes, and the plaintiff continues to deal with them.

The history of Burnett/Gowlings' privacy breach and the OIPC's order in the preliminary matter for Gowlings to respond to the plaintiff's PIPA request for her credit and financial information, which Gowlings had sought to refuse, can be read here and here. Since that order was made, Gowlings has stalled and stonewalled the plaintiff from obtaining the records and answers and given only minimal information.

Gowlings and Megan McMahon (who replaced Burnett when she was removed from the case) initially purported the credit report was pulled for their security for costs application, which they in fact lost when it was dismissed by the court in 2013. A security for costs application is not even a valid reason to pull an opposing party's credit report.

More recently, in August 2017, Burnett gave a completely different excuse to the Law Society, which she and Gowlings made no mention of to the plaintiff in their ongoing stonewalling. Not only does the plaintiff dispute the new excuse Burnett has conveniently come up with in the wake of the spotlight on this matter, Burnett gave no evidence for it.

If there was any confusion as to what McMahon originally admitted to the Law Society concerning her colleague Burnett's credit pull for the improper purpose of a security for costs application they were both involved in, this excerpt from a letter dated April 18, 2016 from Christine Blair, conduct counsel at the Law Society (repeating McMahon's written statement) should make it clear:

Click to read

In related matters, in the plaintiff's lawsuit against Taryn Burnett, Megan McMahon and Gowlings, both the appeal matter concerning the judge's refused recusal, and the amendments/striking applications have not yet been decided.

Updates will appear in future blog posts.

Post updated to add evidence.

Plaintiff's recusal appeal proceeds at Court of Appeal in September 2017

As indicated in this earlier blog post, the plaintiff Carbone has an appeal in progress with the primary issue being the conflict of interest with the case management judge presiding over this case while his own personal lawyer represents the defendants Megan McMahon, Taryn Burnett and Gowlings.

There was only one year between defence counsel Perry Mack's last representation of his client Justice Nixon and Justice Nixon's commencement as case management judge over the case. Further disclosure made at the February 21, 2017 recusal application hearing narrowed this passage of time to only 10 months between their last solicitor-client communications in April 2014 and Justice Nixon's disposition of the case in February 2015. But the judge declined to recuse himself.

The appeal is scheduled to be heard at the Court of Appeal on September 13, 2017 at 10:00am.

The Court of Appeal will be asked to apply the principle of impartiality to this serious conflict of interest matter in order to ensure the plaintiff's right to fair resolution of her case, as well as to preserve the public's confidence in the administration of justice.

This appeal also deals with matters of procedural fairness involving Justice Nixon's repeated delays of the plaintiff's recusal and amendments applications over two years which prejudiced the plaintiff's access to justice rights. This included giving the plaintiff's hearing date away to the defendant in this case, lawyer Taryn Burnett, so she could use that timeslot for her own unrelated trial, with Justice Nixon presiding over it. In another procedural fairness matter, the plaintiff was denied reasonable opportunity to present all of her submissions.

The Court of Appeal will also be asked to apply the Supreme Court of Canada decision from earlier this year Pintea v. Johns, 2017 SCC 23, which asserts that self-represented people have a right to a standard of fair treatment and access to justice.

Part of the Court of Appeal's obligation to decide fairly is to be transparent and accurately state and consider the key arguments, facts and evidence of both parties (including when one party is self-represented). To better facilitate this transparency, some of the plaintiff's materials filed in support of her appeal can be read at the links below:

• Plaintiff's Appeal Factum - filed May 24, 2017
• Recusal Application Transcript - February 21, 2017
• Plaintiff's Affidavit sworn February 20, 2017 - filed at Court of Queen's Bench February 21, 2017/filed with Extracts of Key Evidence at Court of Appeal May 24, 2017 -(personal information redacted)  

Law firm Gowlings refuses to give Plaintiff her personal information...again

Gowlings was previously ordered by the Privacy Commissioner on December 12, 2016 to respond to the plaintiff's access request for her personal information containing, and relating to, her credit and financial personal information.

The plaintiff sought this personal information when she learned that Gowlings and its lawyers Taryn Burnett and Megan McMahon unlawfully obtained her credit report.

Gowlings eventually gave the plaintiff some of this information on February 10, 2017 but since then has once again refused to give the plaintiff the entirety of the credit and financial personal information she is entitled to have. The plaintiff requires the complete information for the Personal Information Protection Act (PIPA) complaint she is filing against Gowlings.

As reported in this earlier post, Gowlings took another opportunity to stall this privacy breach matter over the last two months.

The plaintiff will deal with this matter through the Office of the Information and Privacy Commissioner processes. Updates will appear on this blog.

Carbone Appeal Factum for recusal

In the lawsuit against defendant lawyers Megan McMahon and Taryn Burnett, and their law firm Gowlings, the plaintiff has filed an appeal solely on the matter of the case management judge declining to recuse himself from this case.

The plaintiff filed her appeal factum with her argument, below, with the Court of Appeal on May 24, 2017. The PDF version can be viewed here.

The main issue on appeal concerns the case management judge Justice D.B. Nixon declining to recuse himself from this case with the conflict of interest with his own personal lawyer, Perry Mack, representing the defendants in this case before him. There was only 10 months between the end of their solicitor-client retainer and Justice Nixon taking disposition of this case. It will be argued that a judge that is predisposed to one side, in this case to his lawyer and the party represented by him, can not be impartial.

The second issue is that the plaintiff was denied procedural fairness by Justice Nixon repeatedly rescheduling her applications for two years, and also denying her reasonable requests to ensure all materials were before him, and other scheduling matters.

This appeal is currently scheduled to be heard before the Court of Appeal in September 2017.

PART 1 – STATEMENT OF FACTS

1.   This is the Factum of the Appellant/Plaintiff. The Appellant appeals from the February 21, 2017 oral decision of the Honourable Mr. Justice D. Blair Nixon declining to recuse himself as case management judge.

2.   The primary issue on appeal concerns the conflict of interest with Justice Nixon presiding over this case with his own personal lawyer, Perry R. Mack, appearing before him as counsel for the Respondents/Defendants.

3.   This appeal also deals with the two year delay imposed by Justice Nixon, which has prejudiced the Appellant’s right to a timely and fair resolution of her matters.

The Actions

4.   This case, with Court of Queen’s Bench action nos. 1401-00821 and 1301-03943 [Appellant’s Appeal Record, Tab 1], concerns the Respondent/Defendant lawyers, Megan McMahon and Taryn Burnett, and their law firm Gowling WLG (formerly Gowling Lafleur Henderson LLP, “Gowlings”), committing various malicious and predatory acts toward the self-represented Appellant in the underlying medical malpractice case, which is still in progress within the channels of the Canadian court system [Appellant’s Extracts, Tab 11].

5.   This case is about one of the most extreme and egregious cases of abuse and deceit by opposing lawyers toward a self-represented person. This case is not about opposing lawyers’ duty of care to the other side; it is about malice, fraud, and other transgressions well settled in jurisprudence as rightful causes of action against opposing lawyers when warranted.

6.   The claims against the Respondents/Defendants Ms. McMahon and Ms. Burnett include:    (a) Abuse of process, (b) Harassment of the Appellant for the purpose of personal attack outside their client’s interest, (c) Defrauding the Appellant and committing fraud upon the Court with a $150,000 bill of costs, which deceitfully claimed costs for, among other things, fabricated hearing dates that do not exist, application costs which were previously reversed to be in the Appellant’s favour, applications for which the Appellant was successful, applications for which the Defendants were refused costs sought, and duplicated bill of costs items, and refusing to provide supporting documentation for the bill of costs upon the Appellant’s request, (d) Unlawfully obtaining the Appellant’s credit report in April 2013, which came to light in 2015, in violation of her privacy and as a means of assessing the Appellant’s financial assets, along with various property searches, to carry out their fraudulent scheme; In a related matter, on December 12, 2016, the Privacy Commissioner of Alberta issued decision #003172 denying the Defendant Gowlings its request for authorization to disregard the Appellant’s access request for her credit and financial information, and ordering Gowlings to respond to that access request, (e) Numerous additional serious and deceitful misrepresentations to the Court, (f) Defaming the Appellant, including with conspiracy with a publisher which advertises for Gowlings, and from which the Appellant has obtained an out of court settlement, and (g) Intentionally inflicting physical, emotional and financial harm upon the Appellant.

7.   The Appellant’s affidavit sworn and filed February 21, 2017 with the Court of Queen’s Bench [Appellant’s Extracts, Tab 5] contains the most recent proposed amendments with allegations for events arising later.

Facts on Recusal application below

8.   This appeal deals solely with the matter of Justice Nixon’s refused recusal, decided orally on February 21, 2017 [Appellant’s Extracts, Tab 2]. Decisions on concurrently heard applications for amendments and striking have not yet been made at the time of the filing of this factum on May 24, 2017.

9.   The primary issue on appeal is whether Justice Nixon failed to recuse himself amid the conflict of interest with his own personal lawyer, Perry R. Mack, appearing before him as counsel for the Respondents/Defendants in this case.

10.  At the first case management meeting before Justice Nixon on May 7, 2015, it was disclosed that counsel for the Respondents, Perry Mack, was Justice Nixon’s lawyer in unrelated legal matters. [Appellant’s Extracts, Tab 1]. It was further learned there was only one clear year between Mr. Mack’s last legal representation of Justice Nixon and his appointment as case management judge on February 18, 2015.

11.  At the case management meetings on May 7, 2015 and February 21, 2017, and the weeks leading up to the latter, Justice Nixon displayed a predisposition toward his lawyer Mr. Mack, gave little to no weight to the Appellant’s submissions and requirements as a self-represented person, and acceded to Mr. Mack’s every request. Justice Nixon’s words and actions showed favouring of Mr. Mack and a closed mind to the Appellant. This includes:

(a)   At the May 7, 2015 case management meeting [Appellant’s Extracts, Tab 1], Justice Nixon favoured Mr. Mack’s misstated account of prior proceedings under other judges and ordered sequence of applications, and failed to consider the Appellant’s submissions, with the result Justice Nixon erroneously ordering the Respondents’ application to be heard before the Appellant’s application for amendments (which had been in waiting a year before the Respondents’ made an application for striking), and suggesting that the Appellant’s application may potentially not be heard at all despite that prior justices had always ordered her amendments application would be heard. Justice Nixon also ordered both the application for recusal and the application for striking to be heard at the same time, suggesting he was predisposed to refuse recusal and go straight to Mr. Mack’s striking application.

(b)   Also at the May 7, 2015 case management meeting, Justice Nixon erred in law in accepting Mr. Mack’s erroneous submission that we are still under the prior order of recused judge Earl C. Wilson, without considering the Appellants’ submission that authorities state a recused judge’s order is void and of no effect [Wewaykum Indian Band v. Canada, [2003] 2 SCR 259, 2003 SCC 45 (CanLII) at para 49; see also Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623].

(c)   Justice Nixon refused to accommodate the obstacle that arose concerning the Appellant’s ability to commission her affidavit out of province, which she could not have known about being self-represented, which had resulted in the Appellant being unable to file her affidavit evidence with brief materials on the filing date February 3, 2017 [Appellant’s Extracts, Tab 3]. Despite that the Appellant promptly notified Justice Nixon of the issue by letter February 3, 2017, attaching lawyer correspondence confirming the out of province restriction, Justice Nixon did not grant her leave to file her materials. As indicated below, she did not even receive a clear answer from Justice Nixon until the day of the case management meeting, February 21, 2017. Justice Nixon stated in his letter dated February 14, 2017 “The Court has no further comment.” It should be noted the Appellant was not seeking legal advice, as Justice Nixon framed it, but was rather seeking his decision on leave for filing pursuant to a judge’s obligations under Rules of Court 1.4 and 13.5 [Appellant’s Extracts, Tab 3].

(d)   Mr. Mack replied with a letter to Justice Nixon, dated February 3, 2017 [Appellant’s Extracts, Tab 4] stating he did not want the Appellant to be allowed her right to file her materials, because she already filed a brief for the [successful] recusal of Justice Earl Wilson [on January 19, 2015]. Clearly this lacks logic as a prior brief for recusal of a different case management judge does not address the issues for recusal of Justice Nixon.

(e)   As there was no determination on her request for leave to file and the hearing date was just days away, it was necessary for the Appellant to reluctantly request a short adjournment. Justice Nixon replied, deferring the decision on a short adjournment to Mr. Mack, who refused a short adjournment [Appellant’s Extracts, Tab 3]. This is also despite that there were several adjournments made at the Respondents’ and Mr. Mack’s requests throughout earlier proceedings, as mentioned in the timeline of delays below.

(f)    On the hearing date of February 21, 2017, the Appellant made an application for a short adjournment so she could file her materials and have them fully considered by Justice Nixon, as is her right under the Rules of Court, and relied on her affidavit sworn February 20, 2017/filed February 21, 2017 [Appellant’s Extracts – Tab 3]. The Appellant also cited authorities, including the CJC Statement of Principles on Self-represented Litigants, now endorsed by the Supreme Court of Canada: Pintea v. Johns, 2017 SCC 23 [Appellant’s Authorities].  However, Justice Nixon refused to grant a short adjournment after Mr. Mack made a brief submission without legal substance that he did not want the Appellant to be able to have the short adjournment.

(g)   On the hearing date of February 21, 2017, by the end of the day at 3:30pm the applications for amendments and striking had still not begun. The Appellant suggested they be dealt with the following day to ensure these important and determinative actions had sufficient time for oral submissions. However, Justice Nixon refused when Mr. Mack said he wanted to proceed with them now. These two most important applications were then crammed into one hour at the end of the day, resulting in the self-represented Appellant not having enough time to make her full oral submissions. The Appellant was forced to race through her oral submissions, and Mr. Mack and Justice Nixon complained she was speaking too quickly.

(h)   At times the obvious comradery, including non-verbal, between Justice Nixon and his lawyer Mr. Mack during the February 21, 2017 proceedings was almost unbearable. Justice Nixon was turned toward Mr. Mack throughout most of the proceeding, with certain nods, glances and expressions between them and gauging Mr. Mack’s approval or lack of at various points of the Appellant’s submissions.

Unreasonable Delays Prejudicing the Appellant

12.  The secondary issue on appeal concerns Justice Nixon’s repeated delays over two years, with the effect of prejudicing the Appellant’s right to a fair and timely resolution of her matters.

13.  These delays involved repeatedly rescheduling the Appellant’s application for his recusal and her application for statement of claim amendments (already in waiting since December 2013). The Appellant attempted to move the matters forward with case management bookings and letters to Justice Nixon to no avail [Appellant’s Extracts, Tab 3].

14.  It is significant that Justice Nixon’s most recent rescheduling involved giving away the Appellant’s long awaited hearing date of December 15, 2016 to the within Respondent/Defendant, lawyer Taryn Burnett, so that she could use that timeslot for her own unrelated trial in which she was defence counsel, with Justice Nixon presiding over it [Appellant’s Extracts,Tab 3]. This also served to enable the Respondents to even further delay the actions against them they wish to avoid.

15.  The ongoing unreasonable delays by both Justice Nixon and the Respondents/Defendants are described in the Appellant’s Court of Queen’s Bench affidavit sworn February 20, 2017/filed February 21, 2017 [Appellant’s Extracts, Tab 3]. The delays can be summarized as:

(a)   The Appellant’s application for amendments in action no. 1301-03943 against Respondent/Defendant Taryn Burnett was filed on December 13, 2013.

(b)   At the Respondents’ request, the Appellant’s application for amendments was adjourned to March 24, 2014. 

(c)   Given the delay with the amendment application, which also sought to add the Respondent Megan McMahon as a defendant, it was necessary for the Appellant to file a separate action, no. 1401-00821, for the allegations against Ms. McMahon.

(d)   On March 24, 2014, the amendments application was adjourned again because the Respondents had judge shopped for Justice Earl Wilson to be the case management judge and only wanted Justice Wilson to hear the amendments application.

(e)   There was no hearing before Justice Wilson until December 4, 2014 due to the Respondents’ insistence on waiting until Justice Wilson was available. 

(f)    Justice Wilson was removed from the within case on January 28, 2015 on grounds of judge shopping by the Respondents, conflict of interest, and bias. The issues with Justice Wilson as case management judge in the underlying case are well-documented in the Appellant’s past materials filed with both Courts. He is also notorious for unfairness toward self-represented people.

(g)   A second case management judge was appointed but he recused himself on February 3, 2015 due to a conflict of interest he identified with a relative of one of the Respondents.

(h)   Justice Nixon was assigned as the third case management judge on February 18, 2015.

(i)     The first case management meeting before Justice Nixon was held on May 7, 2015. At that time, the date for the Appellant’s applications for his recusal and her amendments, and the Respondents’ application for striking (brought long after the Appellant filed her proposed amendments) were ordered to be heard at a date to be determined.

(j)     The Appellant filed a Notice of Appeal on June 29, 2015 with the Appellant’s above mentioned concerns on sequence of applications to be heard, and the recusal and striking applications being heard together. The Appellant was heard before the Court of Appeal on a motion seeking to file the appeal record due to Mr. Mack having served the order late, causing the Appellant to miss a deadline under the new rules.

(k)   On that motion, the Court of Appeal issued decision, Carbone v McMahon, 2015 ABCA 263 [Appellant’s Authorities], giving guidance and further stating at para 9 “the answer here is to get on with deciding the underlying Applications.”  

(l)     On September 21, 2015, the Appellant sent correspondence, including the Court of Appeal decision, to Justice Nixon’s attention, seeking Justice Nixon’s availability for a case management meeting. The case management coordinator advised we were waiting to receive Justice Nixon’s availability.

(m)  On January 29, 2016, Justice Nixon’s available hearing dates were finally provided, and the Appellant booked a case management hearing date of June 8, 2016, as agreed by the parties.

(n)   On May 3, 2016 and June 10 & 14, 2016, the parties were informed Justice Nixon had become unavailable for the scheduled June 8, 2016 date, and new dates were provided. The Appellant submitted another case management booking for December 15, 2016 as per Justice Nixon’s availability.

(o)   Justice Nixon sent correspondence to the parties on November 24, 2016, indicating he had become unavailable again for December 15, 2016, and that the case management meeting must be rescheduled to the next year on February 21, 2017. 

(p)   As mentioned above the Appellant later learned, and confirmed with Mr. Mack, that the December 15, 2016 hearing date was rescheduled because it was given away to Respondent Taryn Burnett, so that she could use that timeslot for her own unrelated trial in which she was counsel, with Justice Nixon presiding over it. 

(q)   The applications finally proceeded on February 21, 2017, nearly two years after the previous case management meeting on May 7, 2015. These are the only two case management meetings before Justice Nixon to date.

PART 2 – GROUNDS OF APPEAL

16.  This appeal raises three grounds of appeal:

Ground #1: The case management judge erred in failing to properly apply the reasonable person test with respect to the issue of recusal in the matter of his presiding over a case in which his own lawyer represents a party.

Ground #2: The case management judge’s words and actions demonstrated he was predisposed to rule in his lawyer Mr. Mack’s, and the Respondents’, favour and had a closed mind to the Appellant, giving rise to reasonable apprehension of bias.

Ground #3: The case management judge denied the Appellant procedural fairness by unduly delaying the actions which resulted in prejudicing her right to a fair and timely resolution of her matters, in addition to denying her fair opportunity to present all of her submissions.

PART 3 — STANDARD OF REVIEW

17.  All three grounds of appeal are based in questions of law and, therefore, have a standard of review of correctness.

18.  The grounds of appeal deal with apprehension of bias and procedural fairness. This Court has stated that both “[a]llegations of apprehension of bias and breaches of procedural fairness are reviewable on the correctness standard”: Trigg v. Lee-Knight, 2009 ABCA 224.

Reasonable apprehension of bias

19.  An error in the application of a legal test or legal principle is an error in law, subject to a correctness standard.

20.  While issues of fact are involved in a recusal application, in this case the error lies in Justice Nixon failing to correctly apply the legal test, specifically the reasonable person test as it applies to reasonable apprehension of bias. The proper application of this test would have led to recusal.

21.  Further, Justice Nixon failed to recognize the legal principle that the most important consideration in determining recusal is the maintenance of the public’s confidence in the administration of justice: Wewaykum Indian Band v. Canada, [2003] 2 SCR 259, 2003 SCC 45, CJC Ethical Principles for Judges.

22.  Surely, the significant conflict of interest of a judge presiding over a case in which his own lawyer represents a party would be called into question by this legal principle. In failing to recognize this principle and setting a dangerous precedent that a judge might be able to preside over a case in which his own lawyer represents a party, the public’s confidence in the administration of justice is put at risk.

23.  Further, both the failure to properly apply a legal test and the failure to recognize an important legal principle are errors raising questions of law that are extricable from the factual issues. A question of law that is extricable from the factual issues is reviewable on the standard of correctness: Housen v. Nikolaisen, 2002 SCC 33 at para 27

24.  In addition, Justice Nixon’s failure to recuse himself in this serious conflict of interest is so clearly wrong that it amounts to an injustice. An error so clearly wrong warrants appellate intervention.

Procedural Fairness

25.  This 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).

26.  Questions of procedural fairness are subject to the standard of review of correctness: Mission Institution v Khela, 2014 SCC 24 (CanLII) at para 79.  

27.   Failing to accommodate a self-represented person is a matter of procedural fairness: Pintea v. Johns, 2017 SCC 23.

PART 4 - ARGUMENT

28.   The serious conflict of interest of Justice Nixon presiding over this case in which his own personal lawyer, Mr. Mack, represents a party is a serious conflict of interest, giving rise to reasonable apprehension of bias

29.   At the May 7, 2015 case management meeting [Appellant’s Extracts, Tab 1] Justice Nixon acknowledged that he retained Mr. Mack as his lawyer:

10 THE COURT: Right. I’ll acknowledge the comment by
11 Mr. Mack. We have known each other for a number of years in primarily a professional
12 capacity. The Chief Justice and I have discussed the matter. I do not perceive that
13 there’s an issue, from my perspective, in terms of a conflict. And I just want to table that
14 as a comment. The relationship that we’ve primarily had is it -- some time ago, years
15 ago, I retained him in a -- in a professional capacity, my professional capacity, with
16 respect to an organization that I was chairman of or president of, depending on how you
17 characterize it, along with a number of past chairs.

30.   Justice Nixon’s oral decision on recusal [Appellant’s Extracts, Tab 2] attempts to distance himself from Mr. Mack, in stating that he was one of a group of people who retained Mr. Mack. The fact that Justice Nixon may have been an individual in a group that retained Mr. Mack does not change the fact that Mr. Mack is his lawyer. Further, his earlier acknowledgement that he was the chairman or president of the organization shows he was a key individual retaining Mr. Mack’s services.

31.  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 fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so.

[60] ... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."

32.   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."

33.   The same document refers to a "cooling off period": “with respect to the judge's clients, the traditional approach is to use a 'cooling off period', often established by localtradition at 2, 3 or 5 years ... "

34.  Also in the “Conflicts of Interest” section, the CJC cites a judge’s commentary from the text A Book for Judges indicating a judge should be disqualified where there is a personal or professional relationship with counsel: “A judge’s disqualification would be justified by…a close family, personal or professional relationship with a litigant, counsel or witness.”

35.  A reasonable person would find that Justice Nixon’s relationship as client of the within counsel for the Defendants, Mr. Mack, predisposes Justice Nixon to close his mind and reach a result favouring the party represented by his lawyer Mr. Mack. This issue is further complicated by the fact that Mr. Mack serves as an authority to Justice Nixon for legal advice, and Justice Nixon is therefore inclined to take the legal advice of his lawyer in these proceedings. This solicitor-client relationship is arguably one of the most serious forms of conflict of interest requiring judicial disqualification.

36.  A conflict of interest with a judge and lawyer where there has not been a sufficient “cooling off period” is a strong factor favouring recusal: Al-Ghamdi v Alberta, 2016 ABQB 424 (CanLII). In the present case, there has not been a sufficient cooling off period, which the CJC established as 2, 3 or 5 years, since the relationship in question. There was only one clear year since Mr. Mack’s most recent legal representation of Justice Nixon in 2013 and the date Justice Nixon was assigned case management judge on February 18, 2015. Accordingly, the cooling off period requirement has not been met.  

37.  The two year delay with proceedings does not count toward the cooling off period. Clearly this faulty logic would be self-serving to Justice Nixon and Mr. Mack and must be rejected, especially considering the two year delay was imposed by the court.

38.  A case management judge’s words and actions showing predisposal to one side warrant recusal: Point on the Bow Development Ltd. v. William Kelly & Sons Plumbing Contractors Ltd., 2005 ABQB 368, at para 5 & 6; Nazarewycz v. Dool, 2009 ABCA 70 at para 76 & 77

39.  The CJC Ethical Principles Statement on Diligence states: “Judges should be diligent in the performance of their judicial duties” and “Judges have important responsibilities, for example, in case management and pre-trial conferences as well as on committees of the court. These are all judicial duties and should be undertaken with diligence.”

40.  Justice Nixon was assigned to this case to meet the purpose of case management, being to move a case along to trial in an orderly and timely manner. This Court’s Notice to the Profession and Public, “Civil and Family Case Management”, issued June 27, 2016, states the reasons for case management which include “to promote and ensure the fair and efficient conduct and resolution of the case” and “to keep the parties on schedule.”

41.  However, under Justice Nixon’s case management the case has been plagued with delays and repeated rescheduling, prejudicing the Appellant’s right to a fair and timely resolution of her matters and creating a barrier to her access to justice.

42.  These delays and lack of diligence do not meet the goal articulated by the Supreme Court of Canada in Hryniak v. Maudlin, 2014 SCC 7 of “creating an environment promoting timely and affordable access to the civil justice system.”

43.  Justice Nixon did not afford procedural fairness when he refused the Appellant her opportunity to file her materials and adjournment, delayed proceedings by two years, gave the Appellant’s hearing date to the Respondent, ordered the striking application to be heard before the amendments application and the recusal and striking applications together.

44.  The Canadian Judicial Council's Statement of Principles on Self-Represented Litigants, September 2006, now endorsed by the Supreme Court of Canada, makes these directions among others to promote equal access to justice for self-represented people: “Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case” and “Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.”

PART 5 — RELIEF SOUGHT

45.   In the context of all of the foregoing, it is respectfully submitted that the appeal be allowed and the oral decision declining recusal be set aside, and the Appellant be awarded costs.

Defendant Gowlings stalls privacy breach matter again

Gowlings has stalled the privacy breach matter again involving the plaintiff Carbone's access request for her personal information. She made that access request pursuant to the Personal Information Protection Act when she learned Gowlings and its lawyers Taryn Burnett and Megan McMahon violated her privacy by unlawfully pulling her credit report.

After Gowlings unsuccessfully applied to the Office of the Information and Privacy Commissioner (OIPC) to refuse the personal and financial information request and was ordered on December 12, 2016 to respond to that request, Gowlings informed the plaintiff it would delay its response to the plaintiff for an additional 30 days.

When the plaintiff finally received some of the personal information from Gowlings she found that Gowlings did not fully respond to the access request, though Gowlings stated it provided all information subject to that access request. For example, Gowlings did not provide the names of all individuals who accessed, viewed and used her credit and financial information.

The plaintiff also noted the produced records raised further concerns about other privacy breaches of her personal information by Taryn Burnett and Gowlings.

The plaintiff needs all of the personal information she is entitled have to prepare her formal privacy breach complaint against Gowlings for submission to the OIPC. As such, the plaintiff wrote to Gowlings to obtain that credit and financial personal information it failed to provide, along with questions she had about the additional privacy breaches she found in the records from Gowlings.

Now, in a letter dated May 16, 2017, Gowlings says it views the information the plaintiff is requesting to be a further access request and insists it can take another 45 days pursuant to the Personal Information Protection Act to respond to it.

While some of the questions the plaintiff raised on the further privacy breaches she noticed may or may not be subject to a 45 day response period, she views that Gowlings has not complied with providing the records it said it did for the original credit and financial access request.

Supreme Court of Canada endorses Statement of Principles on Self-represented Litigants

The Supreme Court of Canada, in its recent decision, Pintea v. Johns, 2017 SCC 23, has endorsed the Statement of Principles on Self-represented Litigants. This is an important recognition of self-represented persons' rights to be treated fairly by the courts and a new standard binding on judges.

The Statement of Principles on Self-represented Litigants, which was established by the Canadian Judicial Council in 2006, is a set of principles intended to guide judges and court participants in promoting fair treatment of self-represented persons and their access to justice. It was often regarded by judges as merely advisory. With the Supreme Court's endorsement, the application of these principles to self-represented people is now required by judges.

The context of the Pintea v. Johns case that led to this important progress, is the Supreme Court found that the self-represented plaintiff, Pintea, was not treated fairly by the lower Alberta court when the Alberta court made a serious finding not supported by law, dismissed his motor vehicle accident case and awarded substantial costs against him. The Supreme Court reversed the lower court's decision, restored the plaintiff Pintea's case so that it can go back to the trial court, and vacated the costs judgment.

Some of the principles in the Statement of Principles on Self-represented Litigants are:

Self-represented persons should not be denied relief on the basis of a minor or easily
rectified deficiency in their case. 

Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder
the legal interests of self-represented persons. 

Judges and court administrators should do whatever is possible to provide a fair and
impartial process and prevent an unfair disadvantage to self-represented persons. 

Judges, the courts and other participants in the justice system have a responsibility to promote access to the justice system for all persons on an equal basis, regardless of representation.

The Carbone case against lawyers Megan McMahon, Taryn Burnett, and their law firm Gowlings, which this blog reports on, has long relied on the Statement of Principles on Self-represented Litigants as can be seen from the various factums and letters presented throughout this blog.

Notably, Gowlings, a defendant in the Carbone case on grounds including malicious abuse of process, fraud and harassment of a self-represented person, was also defence counsel in the Pintea Supreme Court case and was unsuccessful in attempting to deny the plaintiff Pintea, and all self-represented persons, their right to a standard of fair treatment and access to justice.

The Carbone plaintiff looks forward to the consistent application of the Principles to her case and all self-represented persons' cases in the courts.

Update: Self-represented persons looking to apply the Pintea case and the Principles to their own case, may want to use the recent summary of the Pintea case prepared by the NSRLP found at this link.

Applications hearing update: Carbone v. Megan McMahon, Taryn Burnett and Gowlings

The plaintiff is awaiting Justice D.B. Nixon's decisions on her application to amend her statement of claims against the defendants, lawyers Megan McMahon and Taryn Burnett and their law firm Gowlings, and their application for striking. Justice Nixon declined to recuse himself as case management judge. These applications were eventually heard on February 21, and are described in this earlier blog post.

As reported throughout this blog, the plaintiff's case against lawyers Megan McMahon, Taryn Burnett, and their law firm Gowlings concerns their extreme malicious and predatory acts toward the self-represented plaintiff in the underlying medical malpractice case.

In that underlying case, the plaintiff sought justice and continues to do so for injuries she suffered at the hands of Dr. Peter Whidden, which caused her to undergo multiple corrective surgeries. McMahon and Burnett went outside their capacity as opposing defence lawyers to repeatedly and maliciously personally attack the self-represented plaintiff and intentionally inflict emotional, physical and financial harm upon her.

The allegations against McMahon and Burnett also include their deceiving the court with a $150,000 fraudulently prepared bill of costs, which claimed costs for hearing dates that do not exist, among many other costs fabrications, constituting fraud upon the court and the plaintiff. McMahon and Burnett also face more recent allegations of conspiracy to defame, in addition to unlawfully obtaining the plaintiff's credit report in 2013, which later came to light in 2015, in blatant violation of privacy and as a means of assessing the plaintiff's financial assets as part of McMahon and Burnett's fraudulent scheme.

Some of the more recent allegations against the lawyers, and further particulars of the existing claims against them, are contained in the affidavit of the plaintiff sworn and filed with the court on February 21, 2017. This affidavit was brought before Justice D.B. Nixon at the February 21, 2017 hearing. The plaintiff was unable to file it earlier by the February 3 filing period due to circumstances indicated in this earlier post.

Click here to read the affidavit of the plaintiff sworn and filed February 21, 2017 with further proposed statement of claim amendments (some personal information has been redacted).

In the interests of fairness to the plaintiff and the public's need to have confidence in the administration of justice, the plaintiff filed a Notice of Appeal for Justice Nixon's refusal to recuse himself on the primary conflict of interest ground that his personal lawyer Perry Mack appears before him as lawyer for the defendants McMahon, Burnett and Gowlings in this case.

Click here to read the Notice of Appeal filed March 9, 2017.

In the matter of Gowlings' privacy breach in obtaining the plaintiff's credit report without her consent, earlier reported in this post and this post, the plaintiff is preparing her multi-part formal complaint against Gowlings for submission to the Office of the Information and Privacy Commissioner (OIPC). In February 2017, Gowlings eventually produced some credit and financial personal information to the plaintiff, further to the December 12, 2016 decision of the Privacy Commissioner requiring Gowlings to respond to the plaintiff's access request for this information.

Case management judge "has no comment" on Plaintiff's filing request for his recusal

The case management judge in the lawsuit against lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings says he "has no comment" on the plaintiff's request to file materials for his recusal application.

The plaintiff made the request when circumstances beyond her control including being unaware her materials could not be commissioned out of province while out of town hindered her from filing materials for the application for the judge's recusal by the February 3 filing period. In this type of situation, the filing party would normally be "granted leave" to remedy the situation.

Also concerning is Justice Nixon allowed opposing defence counsel Perry Mack to decide the plaintiff would not be allowed a short adjournment in the circumstances. This is despite that Justice Nixon has repeatedly rescheduled the case management meeting for his recusal for nearly two years, and that both Mack and Justice Nixon have delayed her original application for amendments for a total of three years.

Mack also repeatedly instructed Justice Nixon by correspondence to refuse the plaintiff her right to file materials for his recusal and for her further amendment materials for the new issues of the defendants' wrongdoing that surfaced more recently.

Mack's influence on these matters is particularly concerning given that the primary issue for the recusal application is the significant conflict of interest that Mack is Justice Nixon's personal lawyer in unrelated matters.

The plaintiff's  letter to Justice Nixon dated February 14, 2017, below, summarizes these issues and her concerns.

The plaintiff's request for leave to file materials was never addressed by Justice Nixon. Instead, Justice Nixon's last correspondence on these matters to the plaintiff on February 14 stated "the Court has no further comment" and that the matter would not be dealt with until the February 21 case management hearing.

The plaintiff is left to wonder if she is being denied her legal right to file materials for Justice Nixon's recusal, and why Mack, at the centre of the conflict for recusal, was allowed to make decisions affecting her legal rights for her own applications.

The case management meeting will take place on February 21, 2017 at 10:00am.

February 14, 2017

Your Honour:

This is in reply to your letter dated and emailed to me yesterday, February 13, 2017, further to the parties’ correspondence with you on this matter since February 3, 2017, concerning the issue that has arisen with commissioning and filing my materials while out of town, for the applications for your recusal, striking and amendments which have most recently been scheduled to be heard before you on February 21, 2017.

As indicated in my two letters of February 3, 2017, which was the date to file my brief and supporting affidavit for the applications pursuant to the practice note for special applications, I learned that my Alberta affidavit could not be commissioned out of province as confirmed by a lawyer whose email correspondence was also provided to you. I requested leave to file my materials with the suggestion that my evidence be attached to the appendix of my brief to provide you with it as soon as possible, and which I would later swear in an affidavit in -- before the case management meeting.

I sent a further letter to you on February 10, 2017 because I did not receive a reply from you to my February 3 letters. You stated your assistant was away during that time. To this February 10 letter and my prior February 3 letters, you replied with a letter dated February 10 stating I could not attach information as evidence to a brief appendix. As stated in my prior correspondence, I had proposed that only as a temporary solution to provide you with the information in advance of when I could also swear my affidavit in -- before the case management meeting given the logistics and out of province commissioning issue which is explained by a law firm in the email I attached to my February 3 correspondence. You still did not provide any direction on leave and whether I could swear the evidence in an affidavit in -- before the case management meeting on February 21.

As I had still not received direction from you on leave I requested, I sent you a further letter yesterday, February 13, once again requesting leave to file my materials as I proposed, and I also indicated I was looking into having my affidavit notarized as an alternative, which your assistant Laura suggested to me may be possible. I further, reluctantly, suggested that because the case management meeting is scheduled just one week away on February 21 and I had not yet had opportunity to file my materials, that rescheduling it to the next date available may be appropriate in the circumstances.

To my letter yesterday February 13, you responded by letter also yesterday February 13, and indicated you could not give me legal advice. You further stated you would only allow the case management meeting to be rescheduled if opposing defence counsel Perry Mack agreed to it. I am greatly concerned by your response for these reasons:

a)   First, I was not requesting legal advice. I requested leave to file my materials given that the circumstance beyond my control prevented me from having my evidence commissioned out of town and filed by February 3, the filing date further to the procedure set out in the special applications practice note. I had further requested leave to provide a sworn copy of my affidavit by the February 21 case management meeting date, which I suggested also be appended to my brief – not to be considered evidence but to provide you and opposing counsel with it as soon as possible before the case management meeting. Whether the affidavit could be notarized is irrelevant to the fact that you could allow leave to submit my -- commissioned affidavit at the case management meeting, with optionally my information attached to my brief in order to provide you with it as soon as possible, which would obviate the need for any notarizing.

To date you have not given any direction on this leave I requested. As indicated in the Alberta Rules of Court, the relevant rules of which I have pasted below for ease of reference, this leave I have requested is a proper expectation of judges to decide, and is not considered legal advice.

b)   Secondly, despite that you have not decided on this leave to file materials which in my view should be the first consideration, you indicated in your correspondence that the case management meeting would only be rescheduled to the next available date if Mr. Mack agrees to it.

As you know, the primary issue for my application for your recusal is that defence counsel Mr. Mack is also your personal lawyer in unrelated matters, which represents a significant conflict of interest as you are predisposed to decide matters in his favour. I do not even know how it is that you have not already voluntarily recused yourself in the circumstances, but that is a matter to be decided at the hearing.

I find it greatly concerning that you would leave it up to Mr. Mack to decide whether the applications can be rescheduled, and also despite that you are aware from Mr. Mack’s correspondence dated February 3 and 13 that he egregiously stated that he does not want me to be allowed to have my right to file materials for the recusal application, the issue of which Mr. Mack is at the centre, and my amendment application. Mr. Mack does not want me to file materials because he knows that my forthcoming strong evidence for the applications makes him and his defendant clients uncomfortable. Of course, Mr. Mack has refused that the recusal application be adjourned, despite that this is opposite the principles set out in the Canadian Judicial Council Statement of Principles on Self-represented Litigants. This is also despite that you, for whatever reason, have delayed your own recusal application for nearly two years since the May 7, 2015 case management meeting, the most recent delay of which involved giving away my December 15, 2016 hearing date to lawyer Taryn Burnett, the defendant in my case, so that she could use my hearing date for her unrelated trial with you presiding over it, the details of which I earlier confirmed with Mr. Mack. Further, Mr. Mack has delayed my amendment application, the original application of which (with further amendments filed later) was filed in December 2013 and has now been in waiting for three years.

Accordingly, it is very difficult to understand why, when it comes to my situation with circumstances beyond my control, you would not allow a short rescheduling of the February 21 date so that I can have time to properly swear and file my materials for the applications as I am entitled.

c)   I am entitled to file a brief and supporting affidavit for my application for your recusal, as well as further materials for my amendments application due to new circumstances of wrongdoing by the defendants, some of which I earlier advised you of in my February 3 correspondence, which have come to light since our last case management meeting on May 7, 2015.

As indicated in my prior correspondence, this right to file materials for applications is set out in the Alberta Rules of Court and special applications practice note. Further, the legal interests and rights of a self-represented person may not be hindered by procedural and evidentiary rules as advised by the Canadian Judicial Council Statement of Principles on Self-represented Litigants, which statements include:

Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.

Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.

Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.

I also draw your attention to Alberta Rules of Court Rules 1.4(1) and 1.4(2)(g) and (h), and 13.5(2) and (3), below, which provide that a judge may make proposals and suggestions and give guidance, and which further state that a judge may adjourn an application or extend the time for doing anything in the proceeding. Accordingly, I have not asked you for legal advice in my letters; I understand I have appropriately requested leave which relates to your obligations as a judge.

1.4(1) To implement and advance the purpose and intention of these rules described in rule 1.2 [Purpose and intention of these rules] the Court may, subject to any specific provision of these rules, make any order with respect to practice or procedure, or both, in an action, application or proceeding before the Court

(2) Without limiting subrule (1), and in addition to any specific authority the Court has under these rules, the Court may, unless specifically limited by these rules, do one or more of the following:

(g) give advice, including making proposals, providing guidance, making suggestions and making recommendations;

(h) adjourn or stay all or any part of an action, application or proceeding, extend the time for doing anything in the proceeding, or stay the effect of a judgment or order;

13.5 (2) The Court may, unless a rule otherwise provides, stay, extend or shorten a time period that is (a) specified in these rules

 (3) The order to extend or shorten a time period may be made whether or not the period has expired.

I believe these present circumstances are worthy of accommodation under the above rules for leave to be granted, especially for a self-represented person.

I look forward to hearing from you as soon as possible.