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.
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.
