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.
November 28, 2017
November 17, 2017
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.
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.
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