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.