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.