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)