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.