Allegations Series Part 2: The Defendants Megan McMahon and Taryn Burnett's Abuse of Process, Malice and Bad Faith

This is Part 2 in a series on the allegations of serious wrongdoing committed by the defendant lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings, in the ongoing case against them this blog reports on.

Part 1 of this allegations series examined the defendants McMahon and Burnett's fraudulent misrepresentations and fraud upon the court, which can be read here.

In Part 2, we focus on the defendants McMahon and Burnett's Abuse of Process, Malice and Bad Faith.

McMahon and Burnett were the defence counsel in the underlying medical malpractice lawsuit against Dr. Peter Whidden who injured the plaintiff and caused her to undergo multiple corrective surgeries. Burnett was removed from the case and McMahon was brought on and continued with abusive behaviour toward the plaintiff. Further background can be read in previous posts in this blog.

The enormity of McMahon and Burnett's abuse of process, malice and bad faith could fill a book and it is not possible to summarize this vast and broad wrongdoing in a single post. This post aims to review some of the more serious wrongdoing in this category of allegations. Additional facts and evidence of this wrongdoing are contained in the plaintiff's Brief, Amended Statement of Claims, and affidavit filed June 5, 2018.

The defendants McMahon and Burnett's abuse of process, malice and bad faith takes various forms including maliciously attacking the plaintiff outside their client's interest through applications filled with lies intended to harm the plaintiff, making egregious lies to the court in pursuit of such, making collateral attacks on the court's prior orders which dismissed their malicious applications, and much more.

The defendants McMahon and Burnett's  unsuccessful repeated vexatious applications, contempt of  court  application,  and  security  for  costs  applications brought over the course of the medical malpractice action were rife with false allegations and filled with reprehensible lies intended to mislead the court and harm the plaintiff, and constitute malicious abuse of process. The court dismissed all of these applications brought by the defendants McMahon and Burnett.

The plaintiff suffered emotional, financial and physical harm that was intentionally inflicted by the defendants McMahon and Burnett, and seeks justice in this lawsuit against them for damages.

Some of the defendants McMahon and Burnett's applications filled with lies featuring abuse of process, malice and bad faith, are detailed below.

McMahon and Burnett's vexatious application #1 filled with malicious lies, in the medical malpractice action

• Defendants McMahon and Burnett failed to serve this application with proper notice: maliciously served on holiday of Easter Sunday 2013; served without the required 5 days notice; some purported supporting materials including hundreds of pages of irrelevant case law served the day before the application without proper notice.

• Application dismissed by order of the court pronounced August 14, 2013 / filed August 29, 2013.

• Almost every single statement and allegation in this application is completely false. The main ground for this application is the completely false and outrageous lie purporting that the plaintiff made six applications for a stay of their summary judgment application (which the plaintiff was ultimately successful on). There is no truth whatsoever to the defendants McMahon and Burnett's grounds and other lies contained within the application and they of course failed to show any evidence for them. 

• In addition to the court entirely dismissing the application by order pronounced August 14, 2013 / filed August 29, 2013, it vacated and revoked the interim basis order to a state of never being made in the first place given it was was made under the circumstances of the defendants McMahon and Burnett making egregious lies with ex-parte attendance without the plaintiff being present and having opportunity to respond to their lies. 

• The plaintiff's affidavits, including her affidavits filed August 2 and 12, 2013, exposed the defendant McMahon and Burnett's egregious lies in this application for what they were.

• The defendant McMahon refused to let the plaintiff cross-examine their affidavit for this application, despite that the plaintiff had a right to cross-examine on it pursuant to the rules of court. McMahon refused to allow the cross-examination on the affidavit because it was made for the improper purpose of purporting to support her application filled with lies. 

• At the hearing of the application on August 14, 2013 when the plaintiff finally had opportunity to speak to the malicious application, the court asked the defendant McMahon why she refused to allow the plaintiff her right to cross-examine on the affidavit. McMahon flippantly responded, "I just chose not to", and acknowledged the court questioned her conduct in refusing the cross-examination and failing to give reason [Plaintiff's Affidavit - June 5, 2018, Transcript excerpt of proceedings August 14, 2013 at pp. 34-36, Exhibit "6"].

McMahon and Burnett's vexatious application #2 filled with malicious lies in the present action against them

• Application served without proper service yet again: maliciously served on Thanksgiving weekend 2014; served without the required 5 days notice, and intended to be heard two business days later but pre-empted by court power outage in October 2014.

• Application denied again by the court, this time on December 10, 2014. 

• It is an egregious collateral attack for the defendants McMahon and Burnett to attempt to have this application heard again and on the same basis, despite that the court already dismissed it on August 14, 2013 as noted above. 

• The defendants McMahon and Burnett instructed their defence lawyer Perry Mack to attend before the court ex-parte without the plaintiff having an opportunity to be present and be heard, with intent to deceive the court into believing that it had made an order verbally on December 4, 2014 for this application to be heard, which is an egregious lie as no such order was made: 

• When the defendants' showed the court their drafted form of order which egregiously inserted this malicious application the court never ordered to be heard, the court said "I'll say this, I did not order that" along with other comments asserting that no such application was ordered to be heard [Plaintiff's Affidavit - June 5, 2018, Transcript excerpt of proceedings December 10, 2014 at pp. 34-36, Exhibit "6"].  

• The plaintiff filed affidavits on December 8, 2014 and December 10, 2014 attesting to the malicious tricks of the defendants in trying to deceive both her and the court with their attempt to relitigate this malicious application that was already dismissed by the court. 

McMahon and Burnett's application for contempt of court on basis of costs filled with malicious lies in the medical malpractice action

• Filed April 22, 2013 by the defendant Burnett.

• Application dismissed by the court on May 30, 2013.

• The purported "grounds" regarding payment of costs were not only false, but were in fact prohibited by the rules of court.  Rule of court 10.52(3)(a)(i) states that contempt can not be sought for an “order to pay money.” 

• This application was maliciously filed on April 22, 2013 in a collateral attack on the court's order after the court granted the plaintiff summary judgment application adjournment earlier the same day, and at which was made clear a specific cost was being paid shortly and it was indeed paid promptly. The court had also accepted the plaintiff's reasoning for the circumstances.

• The defendant McMahon admitted that the defendant Burnett brought her application for contempt of court in abuse of process. This admission was made when McMahon stated to the court that Burnett brought the application specifically because the court had granted the plaintiff an adjournment for the summary judgment application earlier that same day [Plaintiff's Affidavit - June 5, 2018, Transcript excerpt of proceedings May 7, 2013 at p. 6, Exhibit "7"].

• In addition to payment of costs being a prohibited ground for making a contempt of court application, case law is clear that contempt can only be sought when there is intent not to comply with an order which is clearly not the case here as confirmed by the judge earlier the same day before Burnett brought the malicious application. 

McMahon and Burnett's three applications for security for costs in the medical malpractice action

• In addition to the malicious vexatious applications and malicious contempt of court application mentioned above, the defendants McMahon and Burnett also vexatiously filed three security for costs applications in 2013, again all being filled with false allegations and blatant lies.

• The court dismissed all three of these security for costs applications (dates indicated below).

• It is an outrageous abuse of process and collateral attack to file the same application three times, each being dismissed by the court.

• These security for costs applications were brought nine years after the medical malpractice litigation commenced in 2004, in abuse of process and in desperation to circumvent their unmeritorious summary judgment application they filed in November 2012, which was also dismissed by the court.

• Details of these three dismissed security for costs applications are below. The dates of some of these applications coincide with dates of the other applications mentioned above because the defendants McMahon and Burnett relished bringing multiple malicious applications at a time to inflict maximum harm.

a) Application filed January 11, 2013 by the defendants seeking enhanced costs on a full indemnity basis and seeking that if not paid by January 31, 2013 the plaintiff’s application be struck; Application dismissed by the court by order January 16, 2013. 

b) Application filed March 28, 2013 by the defendants for security for costs (egregiously served on Easter Sunday and without proper notice)/amended April 2, 2013 to be heard April 4, 2013 (again without proper notice); rescheduled to April 11, 2013 and attended ex-parte by the defendants; application dismissed by the court April 11, 2013. 

c) Application for security for costs filed April 22, 2013 by the defendants and unsuccessfully argued by the defendants; application dismissed May 30, 2013.

More abuse of process by McMahon and Burnett at the June 2018 amendments/striking applications in the present action against them

• The defendants McMahon and Burnett's extraordinary abuse of process with their malicious vexatious applications did not end with their dismissals by the court in August 2013 and December 2014. McMahon and Burnett actually attempted to use their same affidavit prepared for their second failed vexatious application (the one denied by the court in 2014) again for the recent June 2018 applications for amendments/striking. The court properly refused to allow McMahon and Burnett's affidavit to be used for the June 2018 applications. The defendants had failed to comply with court instructions at the prior May 2018 case management meeting that required both parties to state the materials they would be relying on for the June 2018 applications, which would also give opportunity for any affidavit to be cross-examined. The defendants did not state they would be relying on any affidavit because they feared the plaintiff would have cross-examined on it and, further, it was prepared for the purpose of their malicious vexatious application already dismissed twice. 

• The defendants McMahon and Burnett's ongoing abuse of process played out as usual in additional ways for the June 2018 applications for amendments/striking. 

These are just some of the acts of abuse of process, malice, and bad faith by the defendants McMahon and Burnett.

Case law is  clear  that  courts  can  use  their  inherent  jurisdiction  to  deal  with  serious  lawyer  wrongdoing of abuse of process, malice and bad faith.  Very  recent  case  law  further  shows  the  importance,  and  even  necessity,  of  sanctioning  this serious wrongdoing.

In  the  recent  decision  of  Quebec  (Director  of  Criminal  and  Penal  Prosecutions)  v.  Jodoin, 2017  SCC  26,  the  Supreme  Court  of  Canada  affirmed  that  lawyers  must  be  held  accountable  for  malicious  conduct  and  abuse  of  process  and  that  the  Court  has  inherent  jurisdiction  to  deal  with  it.  This  is  applicable  to  the  plaintiff’s  allegations  of  the  defendants McMahon and Burnett's  fraud  in  addition  to  their  other  malicious  conduct  with  their  ongoing  harassing,  unfounded  and  vexatious  applications  against  the  plaintiff,  all  of  which  were  properly  dismissed  by  the  Court.  The  Supreme  Court  stated in Jodoin:

A court therefore has an inherent power to control abuse in this regard and to prevent the use of procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute...As officers of the court, lawyers have a duty to respect the court’s authority. If they fail to act in a manner consistent with their status, the court may be required to deal with them by punishing their misconduct. 

...It was therefore reasonable for the court to conclude that J had acted in bad faith and in a way that amounted to abuse of process, thereby seriously interfering with the administration of justice. 

...This high threshold is met where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that is deliberate.

A  review  of  the  within  plaintiff’s  pleadings  and  evidence  shows  there  is  no  question  that  the  defendant  McMahon  and  the  defendant  Burnett  demonstrated  an  ongoing  pattern  of  unfounded  and  vexatious  proceedings  denoting  serious  abuse  of  the  judicial  system  and  dishonest,  malicious  conduct  that  is  deliberate.

Citing  the Jodoin Supreme  Court  of  Canada  case,  the  Court  of Queen's Bench stated in the recent case 1985  Sawridge  Trust  v  Alberta  (Public  Trustee), 2017  ABQB  530  that  litigation  abuse  by  lawyers  must  be  actioned and  that  it  is  the  Court’s  inherent  jurisdiction  to  impose consequences  for  this  misconduct.  The  Court  went  on  to  review  the  Supreme  Court  of  Canada’s  endorsement  of  the  Statement  of  Principles  on  Self-Represented  Litigants in  Pintea v. Johns, 2017 SCC 23,  and  drew  the  comparison  that  the  “new  reality”  and  “culture  shift”  required  to  treat  self-represented  people  fairly  similarly  applies  to  the  conduct  of  lawyers.  At  para.  50  the  Court  stated:

What  is  new  are  the  implications  that  can  be  drawn  from  a  lawyer’s  actions  and  inactions.  They,  too,  must  be  part  of  the  “culture  shift”.  If  their  actions,  directly  or  by  implication,  indicate  that  a  lawyer  is  not  a  part  of  that  process,  then  that  is  an  indication  of  intent.  The  future  operation  of  this  and  other  trial  courts  will  depend  in  no  small  way  on  the  manner  in  which  lawyers  conduct  themselves.  If  they  elect  to  misuse  court  procedures  then  negative  consequences  may  follow.

In  the  very  recent  follow-up  decision  for  the  same  case,  1985  Sawridge  Trust  v  Alberta  (Public  Trustee), 2018 ABQB  213,  the Court  made  clear  it  is  the  role  of  the  court  to  penalize  abusive  litigation  by  lawyers.  The  Court  stated  at  para.  31:

It  is  critical  that  this  Court  continue  to  disapprove  of  abusive  litigation,  changing  positions,  and  re-arguing  settled  issues  (Staggat  para  32; Chutskoffat  para  92; Sawridge #7 at  para  82-91).  Consequently,  Ms.  Kennedy  and  Mr.  Stoney,  by  virtue  of  their  own  actions,  have  opened  themselves  up  to  enhanced  costs  being  awarded  against  them  in  relation  to  the  proceedings  that  gave  rise  to Sawridge #8.  In  accordance  with  the  reasoning  for  awarding  costs  against  a  lawyer  personally  in Sawridge #7,  there  is  a  sufficient  basis  to  award  solicitor-client  costs  against  Ms.  Kennedy  and  Mr.  Stoney  on  a  joint  and  several  basis  in Sawridge #8.  

Rule of Court 10.52(3)(a)(i) makes clear that a contempt of court application can not be brought on the basis of payment of costs, yet the defendants McMahon and Burnett brought this application, unsuccessfully, against the plaintiff on this prohibited ground and, thus, in abuse of process, malice and bad faith. In addition to a bar on a contempt application for costs, the authorities are clear that contempt can only be sought when there is intention not to comply which is clearly not the case here. The authorities state the standard of proof for establishing civil contempt is “proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice”: Demb v Valhalla, 2016 ABCA 172.

Authorities are also clear that opposing  lawyers  can  not  rely  on absolute  privilege  when  their  conduct  is  based  in  abuse  of  process,  malice,  bad  faith  and  seeks  contempt  of  court. The  presence of malice defeats a defence of privilege.

The  defendants McMahon and Burnett in fact acknowledged in their brief for the plaintiff's amendments application and the defendants' striking application that  the  law  protects  counsel  only  when  they  act  in  good  faith  and  when  their  statements  are  made  in  connection  with  legitimate  process.  The  plaintiff’s  pleadings,  which  must  be  accepted  as  true  on  an  application  for  striking pursuant to binding authority,  and  which  are  supported  by  evidence  [Plaintiff’s  Affidavit – June  5,  2018],  are  clear  that  the  defendants’  conduct  has  been  in  egregious  bad  faith  and  in  abuse  of  process.

Watch for upcoming posts in this Allegations Series, which will include reviews of the defendants Megan McMahon and Taryn Burnett's Defamation and Intrusion upon Seclusion (breach of privacy). The obligations of opposing counsel toward self-represented people pursuant to the Supreme Court-endorsed Statement of Principles on Self-represented Litigants, and McMahon and Burnett's utter failure to comply with them, will also be examined.

Allegations Series Part 1: The Defendants Megan McMahon and Taryn Burnett's Fraudulent Misrepresentations and Fraud upon the Court

Earlier in this blog, a new series was introduced that takes a closer look at some of the categories of allegations of serious wrongdoing committed by the defendant lawyers Megan McMahon, Taryn Burnett, and their law firm Gowlings, that resulted in legal action being taken against them.

This is Part 1 in the series and focuses on the defendant lawyers' Fraudulent Misrepresentations and Perpetration of Fraud upon the Court.

This information is contained within the plaintiff's legal brief which can be read here, and the plaintiff's proposed amended statement of claims against the defendants which can be read here.

It is highly significant that the defendants cross-examined the plaintiff's supporting affidavit evidence filed June 5, 2018 for these allegations, and the defendants were unable to dispute this evidence. The defendants were unable to dispute the plaintiff's affidavit evidence because it is undeniable as to the defendants' egregious fraud and fraud upon the court, in addition to their extensive other serious wrongdoing.

The defendant lawyers' fraud and fraud upon the court is largely related to the fraudulent bill of costs prepared by the defendant lawyers in the underlying medical malpractice lawsuit against Dr. Peter Whidden. That underlying lawsuit is still in progress within the channels of the Canadian court system.

First, it will be helpful to review some background in the underlying medical malpractice lawsuit, which the plaintiff brought after suffering injury by Dr. Peter Whidden, causing the plaintiff to undergo multiple corrective surgeries. McMahon and Burnett were the sometimes lawyers for Dr. Peter Whidden in that lawsuit. The plaintiff was successful in defeating the summary judgment application in that medical malpractice matter. The subsequent trial in that matter was adjudicated by Justice Charlene S. Anderson, who made very serious trial errors including that she:

a) unfairly refused the plaintiff her right to rely on her treating physicians’ evidence supporting her medical malpractice claim, including critical treating physicians’ medical evidence specifically stating the injuries the plaintiff suffered resulted from the surgery by Dr. Peter Whidden which caused the plaintiff to undergo multiple corrective surgeries,  

b) unfairly refused the plaintiff her right to have trial reasonably scheduled to a date when both of her treating physicians could attend, and instead only allowed one to attend with the requirement that he would have testify the same day he returned to the country without opportunity to prepare, and refusing to allow opportunity for her other treating physician to testify at all,  

c) misstated the testimony of Dr. Whidden who was shown to be responsible for the tort of medical battery, among other wrongdoing, and was repeatedly impeached on cross-examination,  

e) misstated the evidence of Dr. Whidden's “expert” B.C. Dr. Denis Morris who admitted under cross-examination that his expert report was erroneous and contained hearsay, and;  

f) unfairly failed to uphold the self-represented plaintiff’s access to justice rights, among many additional serious trial errors by Justice Charlene Anderson. 

To be clear, these trial issues are not the subject of the lawsuit against the defendants McMahon, Burnett and Gowlings and are provided here for the purpose of context.

The fraudulent bill of costs prepared by the defendants McMahon, Burnett and Gowlings, among other issues, egregiously claimed costs for applications for which the plaintiff was the successful party, application costs which were reversed in the plaintiff’s favour, costs for applications which the defendant was not awarded any costs, costs for fabricated applications and application dates that do not exist, and duplicated costs items.

The plaintiff requested, both prior to the trial costs hearing in 2014 and prior to the trial costs appeal in 2015, that the defendants provide her with supporting documentation, receipts, and court orders to substantiate their bill of costs. Despite the plaintiff’s requests for this information on multiple occasions the defendants failed to provide it.

The defendants refused to provide the plaintiff the supporting documentation, receipts and orders she requested because the defendants knew that the bill of costs contained egregious fraudulent misrepresentations and could not be supported.

The defendant McMahon’s failure to provide this information resulted in the Court never dealing with the specific costs items that were fraudulently misrepresented in the bill of costs.

At the July 29, 2014 trial costs hearing, the defendant McMahon made further false representations orally with the intent to deceive the Court and procure a fraudulent costs judgment. When the plaintiff said she wanted to respond to the representations of the defendant McMahon, Justice Charlene Anderson refused to allow the plaintiff to respond to them and told her to “sit down”, as shown in the passage below from the July 29, 2014 transcript at p. 23:

22 THE COURT: Okay, sit down, please, Ms. Carbone.
23
24 MS. CARBONE: I-- no, I have several --
25
26 THE COURT: Sit down.
27
28 MS. CARBONE: --I have -- I would like to respond to what she
29 said.
30
31 Ruling (Costs)
32
33 THE COURT: Sit down.

Justice Charlene Anderson’s style of adjudication with self-represented people, including in unrelated cases, is clearly a concern. However, this is not the subject in the present action against the defendant McMahon concerning her false statements she made knowing them to be false and knowing that the Court would rely on her statements as an officer of the court, causing the costs judgment to be fraudulently procured. Contrary to the suggestion in the defendants’ brief, a lawyer is not off the hook for fraud because she manages to deceive the court.

The costs decision portion of the July 29, 2014 trial costs transcript shows that Justice Anderson made no ruling on the individual costs, having relied on the egregious and fraudulent misrepresentations of the defendant McMahon as an officer of the court who is expected to act with honesty and integrity before the court.

When the plaintiff again requested from the defendants the supporting documentation, receipts and orders for the bill of costs prior to the costs appeal hearing, on two occasions as shown by the evidence, Gowlings lawyer James Peacock responded in email correspondence dated June 3, 2015, stating: "Further to your email message last week and the two messages from you today, we have no intention of providing this information as it is not relevant to any of the issues under appeal." [Plaintiff Affidavit – June 5, 2018, Exhibit “14”]

As a result of the defendants’ refusal to provide the plaintiff with this information for the appeal hearing, the individual costs items fraudulently claimed were again not dealt with. The appeal decision clearly shows the Court did not deal with the specific costs issues, which is owing to the defendants’ sharp practice in refusing to provide the information.

The costs fraudulently claimed by the defendant McMahon in the June 19, 2014 bill of costs [Plaintiff’s Affidavit – June 5, 2018, Exhibit “12”] include:

a) March 4, 2008 - $1500
The Defendant McMahon claimed this cost despite that the master's order for this amount on this date was later set aside by a subsequent order by a justice upon the Plaintiff’s appeal based on the Defendant Burnett having obtained an order ex-parte before the master and admitting she did not have an affidavit of service for that application and failing to serve the application on the Plaintiff with proper notice resulting in the Plaintiff being unable to attend. The justice's appeal order dated May 9, 2008 in the Plaintiff’s favour specifically states this cost was set aside.  

b) April 7, 2008 - $1500

The Defendant McMahon claimed this cost despite that this hearing date before the justice relates to the Plaintiff’s successful appeal before him for the matter referred to in (a) in which the Defendant Burnett obtained an order through her misconduct. This appeal matter was first before the justice on April 7, 2008 at which time he ordered costs will be addressed and upon this appeal matter being finalized before him on May 9, 2008 the justice granted the Plaintiff’s appeal and ordered that the March 4, 2008 order of the master and related costs were set aside.  

c) April 21, 2009 - $1500
This costs item is entirely fabricated. No hearing or application occurred on this date and no such costs were awarded.  

d) December 11, 2013 - $1500
This costs item is entirely fabricated. No hearing or application occurred on this date and no such costs were awarded.  

e) June 3, 2013 - $1500
The Plaintiff was successful on this application in which she was granted leave to file materials on this date. The Defendant McMahon had refused to consent to this remedy in her prior email correspondence, resulting in this unnecessary hearing.  

f) August 29, 2013 - $1500
The Defendant McMahon's application for costs forthwith to set a trial date, the purpose of the application on this date, was denied by the Court. A Court does not award a party costs for routine setting of a trial date.  

g) October 1, 2013 - $1500
This application was for setting a timetable for exchange of expert reports, routine for a trial. The Defendant McMahon's request for costs was not granted.  

h) June 23, 2009 - $2500
Both parties prepared briefs seeking undertakings from the other party. Success was divided and no costs were granted. 

i) November 26, 2009 - $2500
On this date, the Plaintiff was successful in, among other relief, obtaining an order compelling the Whidden Defendant to attend for questioning for discovery on the further amendments, which he had repeatedly refused to attend. Costs items related to this application were specifically set out in this order for court reporter sitting fee and discovery attendance, and no costs for this application I was successful on were awarded to the Defendant as the bill of costs falsely claims.  

j) February 23, 2010 - $1250
There is no such purported application with a costs award.  

k) December 11, 2009 - $800
This costs item is entirely fabricated. No hearing or application occurred on this date and no such costs were awarded.  

l) June 17, 18 2013; August 1, 2013 – Summary judgment application the Plaintiff was successful on. Omitted costs of $3750 are payable to the Plaintiff. The Plaintiff was successful in defeating the Whidden summary judgment application, with reasons issued by this Honourable Court on August 1, 2013. The decision shows the Plaintiff was successful on the main issues and that the parties could speak to costs and yet the Defendant McMahon’s bill of costs falsely claimed there were no costs for this application. The parties had not come to agreement on costs by the time of trial and the Defendant McMahon was not at liberty to make up the false statement that there were no costs for this application.  

m) Court of Appeal matters - $12,100

No such Court of Appeal costs may be sought in a bill of costs for a Court of Queen's Bench trial, yet the Defendant McMahon even specified double costs for this. Further, the Defendant McMahon included in this category a costs item of $2500 for an appeal restoral matter on January 14, 2010 for which the Plaintiff was the successful party and which a fee of $200, not $2500 to the defendant, was assessed for the restoral fee.  

n) The bill of costs duplicates costs items for February 28, 2014, June 23, 2009, and November 26, 2009, again including for applications in which the Plaintiff was successful and for which no costs were awarded to either party.  

o) The Defendant McMahon deceitfully mislead the trial judge to believe that the judges presiding for the applications permitted costs for the applications for which no costs were awarded, which is false as the orders stated whether costs were awarded or not.  

p) The Defendant McMahon was caught on some of her misrepresentations with the bill of costs items during the trial costs proceeding on July 29, 2014, which reduced the costs judgment by $839.80. 

It is also significant that the defendant McMahon was restricted from involvement in the costs issues further to the direction of the Alberta Court of Appeal.

Further details of the defendants' fraudulent conduct can be read in the plaintiff's brief and proposed amended statement of claims, and her affidavit filed June 5, 2018.

Case law supports the plaintiff’s pleadings for the defendants’ defrauding of the plaintiff and fraud upon the Court and makes clear that there are legal consequences for lawyers who commit fraud in the course of litigation and that a lawyer’s position as opposing lawyer does not insulate that lawyer from a claim of fraud and other intentional torts. Binding Supreme Court of Canada law states that fraud and dishonesty vitiate all judgments and that courts have the jurisdiction to vacate an order obtained by fraud, including in another action and, further, that fraud and dishonesty are factors by which related matters may be adjudicated by the court.

Some of this case law relied on is as follows. Additional supporting case law is in the plaintiff's brief.

In Hillier  v.  Hutchens, 2012  ONSC  5988, the  Court  stated  that  a  lawyer’s  position  as  opposing  lawyer  does  not  insulate  that  lawyer  from  a  claim  of  fraud  and  other  intentional  torts,  and  declined  to  strike  the  pleadings.  The  Court ruled:

...absolute privilege usually applies to counsel’s conduct in judicial proceedings…The exception is where malice and bad faith are properly pleaded…Immunity cannot extend to counsel acting in a legal proceeding that was brought to suppress information about a fraud to which that counsel was a party as is alleged in this case. I would, accordingly, not strike these allegations.

In the Ontario Court of Appeal decision Lawrence v. Peel Regional Police Force, 2005 CanLII 3934 (ON CA),  the Court ruled  that  pleadings  of  intentional  and  malicious  conduct  by  lawyers  are  arguable  and  should  not  be  struck:

The  appellant  pleads  intentional  and  malicious  conduct  precisely  directed  at  him  by  the  respondent. In  my  view,  those  facts  are  at  least  arguably  capable  of  implicating  the  respondent  in  several  intentional torts,  including  false  imprisonment,  malicious  prosecution,  abuse  of  process,  and  civil conspiracy. These intentional  torts,  unlike  negligence,  are  not  defeated  by  the  rule  that  a  lawyer  owes  no  duty  to  the  opposing party  in  litigation...Here, the appellant alleges the malicious commission of intentional torts, a claim that does  not  depend upon  the  professional  rules  of  conduct  governing  lawyers.

In another Ontario Court of Appeal decision, Khan  v.  Krylov  &  Company  LLP,  2017  ONCA  625, the  Court allowed  a  self-represented  plaintiff’s  appeal  and  set  aside  the  motion  court’s  dismissal  of  his  action,  which  is  based  in  allegations  of  fraud  and  dishonesty  against  law  firms,  including  the  defendant  law  firm  which  acted  as  opposing  defence  counsel  in  the  plaintiff’s  underlying  motor  vehicle  accident  case.  The  Ontario  Court  of  Appeal  found  that  the  motion  court  erred  in  dismissing  the  case  under  Rule  2.1  as  frivolous,  vexatious  or  otherwise  an  abuse  of  the  process  of  the  court.  The  Court  further  asserted  that  discernible  causes  of  action  must  be  allowed  to  proceed  and  can  not  be  considered  frivolous,  vexatious  or  an  abuse  of  process,  regardless  of  how  unpleasant  a  law  firm  finds  allegations  against  itself. The Court ruled:

In  other  words,  the  pleading  alleges  that  the  law  firms  conspired  to  defraud  the  appellant. As  distasteful  as  this  allegation  might  be,  it  is  not  entirely implausible... Rule  2.1 [similar to a striking application in Alberta] is  not  meant  to  be  an  easily  accessible  alternative  to  a  pleadings  motion,  a  motion  for  summary  judgment,  or  a  trial...We  are  unable  to  conclude  that  the  appellant’s statement  of  claim  asserts  a  claim  that  is  frivolous,  vexatious  or  an  abuse  of  the  court’s  process... rule  2.1  is  not  appropriate  as  a  means  for  bringing  the  action  to  an  early  end.  The motion  judge  erred  in  truncating  the  normal  process.

The present case against the defendants McMahon, Burnett and Gowlings is similar to the Khan case and should be treated the same. The relevant facts and principles that are similar include:

• In  a  separate  action,  the  self-represented  plaintiff  sued  opposing  defence  counsel  in  the  underlying  injury  case.  
• Allegations  against  opposing  defence  counsel  include  fraud  and  dishonesty  by  misappropriating  monies.
• Pleadings are discernible and plausible, and can not be deemed frivolous, vexatious or abuse  of process, regardless of how unpleasant they are for a law firm.  
• Well-settled jurisprudence affirms pleadings must be read generously, including for self-represented plaintiffs with actions against opposing counsel.

As ruled by the Supreme Court of Canada in Danyluk v. Ainsworth Technologies, 2001 SCC 44, collateral attack is not made out where issues have not been distinctly  put in issue and directly determined or where there are different causes of action, as with the within  claims against the defendants McMahon, Burnett and Gowlings. The Supreme Court further affirmed that even if there is collateral attack, which is not present in the within action, the most important factor to consider is potential injustice of not hearing the claims. The Supreme Court stated at paras. 24, 80, and  81: 

When a question is litigated, the judgment of the Court is a final determination as between the parties and their privies. Any right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action. The right, question, or fact, once determined, must, as between them, be taken to be conclusively established so long as the judgment remains.  

As a final and most important factor, the Court should stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice… Whatever the appellant’s various procedural mistakes in this case, the stubborn fact remains that her claim to commissions worth $300,000 has simply never been properly considered and adjudicated. On considering the cumulative effect of the foregoing factors it is my view that the Court in its discretion should refuse to apply issue estoppel in this case.

In  Toronto  (City)  v.  C.U.P.E.,  Local  79,  [2003]  3  SCR  77,  2003  SCC  63  at  para.  52,  the  Supreme  Court  of Canada  stated that factors  that  must  be  considered  before  dismissing  an  action  as  an  abuse  of  process  include  the  prior  action  being  tainted  by  fraud  and  dishonesty,  that  new  evidence  has  been  raised,  and  fairness.  The  plaintiff’s  actions  are  rooted  in  the  defendants McMahon, Burnett and Gowlings'  fraud  and  dishonesty  and  must  not  be  struck.

There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80. 

In the Supreme Court of Canada decision Landreville v. Town of Boucherville, [1978] 2 S.C.R. 801, the Supreme Court affirmed that fraud, dishonesty and bad faith vitiates and nullifies all judgments, contracts and transactions whatsoever. At p. 814:

Fraud, dishonesty, bad faith, extortion and bribery form a special category of causes of nullity, which transends all others. Fraud unravels everything…once it is proved, it vitiates judgments, contracts and all transactions whatsoever…  

Summary of applications for claim amendments and striking heard on June 28, 2018: Carbone v. Megan McMahon, Taryn Burnett and Gowlings

On June 28, 2018, in the lawsuit about extreme lawyer abuse and misconduct by defendant lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings, these two applications were heard before the new case management judge, Justice Michele Hollins:

• The plaintiff's application to amend her statement of claims against the defendant lawyers to add further particulars of the existing claims and add new claims of the defendants' wrongdoing that came to light over time.

• The defendants' application to strike, which they did not file until two years after the plaintiff filed her first statement of claim against the lawyers in March 2013, and one year after the plaintiff filed her original application for amendments in December 2013.

Justice Hollins reserved decision for these applications. This blog will report on the decision when it is available.

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 abuse of process, malice, fraud, deceit, acting in bad faith and other wrongdoing well settled in jurisprudence as rightful causes of action against opposing lawyers when warranted.

The plaintiff's arguments are contained in her brief which can be read here. In summary, the defendant lawyers' extensive wrongdoing which caused the plaintiff to suffer serious damages, includes:

a) The defendants' pattern of serious abuse of process in various forms, including the defendants bringing a number of malicious applications with entirely false allegations against the plaintiff, all of which were properly dismissed by the Court. 

b) The defendants' malicious harassment of the plaintiff for the purpose of personal attack outside their client’s interest. 

c) The defendants' defrauding the Plaintiff 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 plaintiff’s favour, applications for which the plaintiff 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 plaintiff’s request. The defendants fraudulently procured a costs judgment upon the Court being misled and deceived by acting on the false representations made by the defendants. 

d) The defendants' unlawfully obtaining the plaintiff’s credit report on April 11, 2013, which came to light in 2015, in violation of her privacy and as a means of assessing the plaintiff’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 Plaintiff’s access request for her credit and financial information, and ordering Gowlings to respond to that access request. In common law, this privacy breach is referred to as "Intrusion upon Seclusion".

e) The defendants' numerous additional serious and deceitful misrepresentations to the Court. 

f) The defendants' defaming the plaintiff, including with unsuccessful malicious applications filled with absolutely false allegations brought in bad faith seeking to deceitfully label the plaintiff injurious to her reputation; conspiracy with a publisher which advertises for Gowlings, and from which the plaintiff has obtained an out of court settlement, and; in making defamatory statements about the plaintiff to her lawyer on limited retainer. 

g) The defendants' intentional infliction of physical, emotional and economic harm upon the plaintiff.

The defendants' arguments consisted of pleads to overlook the defendant Megan McMahon and Taryn Burnett's serious wrongdoing. The defendants' lawyer Perry Mack argued, in essence, that lawyers are above the law and that it is actually lawyers' jobs to make malicious applications filled with lies (despite that all of the malicious applications were dismissed by the court in the plaintiff's favour and caused the plaintiff serious harm), and that even the defendants' fraudulent conduct should be overlooked. Mr. Mack further argued that, contrary to case law, once a lawyer manages to deceive a court, which expects an officer of the court to act with integrity, the lawyer is somehow invincible, and that the lawyers' conduct was uncomfortable for the plaintiff but that's too bad. It is shocking comments like these that erode the public's confidence in the legal profession and the administration of justice.

Defence counsel Mr. Mack also attempted to mislead the court to believe that the plaintiff's claims against the defendant lawyers McMahon and Burnett were somehow already dealt with in the underlying medical malpractice claim. This is an absolutely false and egregious misrepresentation. There is no question that the plaintiff's claims against the lawyers for the damages they inflicted, including causing her to be on medical leave as a result of their malice, in addition to the financial harm resulting from the lawyers' various frauds, have always been dealt with in the lawsuit against the lawyers, and the plaintiff's evidence and court decisions are also clear on this.

The plaintiff has extensive evidence to rely on in her affidavit filed June 5, 2018 for the applications. The defendants, on the other hand, have no evidence.

Supreme Court of Canada case law, which is binding on all courts in the nation, states that defendants bear an "extremely high onus" on an application to strike a claim and that a claim can not be struck unless it is "plain and obvious or beyond reasonable doubt" that the facts, which must be accepted as true, do not disclose a reasonable cause of action (Hunt v. Carey, [1990] 2 SCR 959; Ernst v. Alberta Energy Regulator, 2017 SCC 1). The Supreme Court has also recently reaffirmed that courts have inherent jurisdiction to take action against lawyers who engage in malicious litigation abuse (Quebec Director of Criminal and Penal Prosecutions v. Jodoin, 2017 SCC 26). Read more about this and other case law that supports the plaintiff's position in the plaintiff's brief here.

Case law is also clear that there is a low threshold for a plaintiff to meet in order to file amended pleadings, including: Balm  v.  3512061  Canada  Ltd,  2003  ABCA  98; Tran  v.  University  of  Western  Ontario,  2015  ONCA  295.

As reported earlier in this blog, a new series will take a closer look at some of the categories of serious wrongdoing committed by the defendant lawyers Megan McMahon and Taryn Burnett that resulted in this legal action being taken against them.

Watch for Part 1 in this series which begins with the subject of the defendant lawyers' Fraudulent Misrepresentations and Perpetration of Fraud Upon the Court.

Brief of the Plaintiff for Claim Amendments and to Oppose Striking

Click here to read the brief of the plaintiff Carbone for her application for approval of her statement of claim amendments to add new pleadings, and to oppose the Defendants' application for striking.

Click here to read the plaintiff's proposed amended statement of claims, containing additional allegations against the Defendants Megan McMahon, Taryn Burnett and their law firm Gowlings.

Amended Statement of Claims in lawsuit against Defendants Megan McMahon and Taryn Burnett

The Statement of Claims against defendant lawyers Megan McMahon, Taryn Burnett, and their law firm Gowlings, have been updated to add proposed additional claims against them.

Click here to read the Amended Statement of Claim against Megan McMahon (action no. 1401-00821).

Click here to read the Amended Statement of Claim against Taryn Burnett (action no. 1301-03943).

(personal information in the claims has been redacted)

The plaintiff's application for these proposed claim amendments (underlined in red) to be allowed is scheduled to be heard before the new case management judge on June 28, 2018.

Upcoming applications hearing; New blog series introduced

Case Update

In the litigation misconduct case against lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings, a brief case management meeting was held on April 23, 2018 to introduce the new (fourth) case management judge to the case, confirm a hearing date for the upcoming applications, and arrange for filing of the parties' application materials.

The plaintiff Carbone's application for amendments to add important allegations to her case against the defendant lawyers McMahon and Burnett, and the lawyers' application for striking, are scheduled to be heard (re-argued) on June 28, 2018 at 10:00am.

As reported throughout this blog, this case is about the rogue lawyers' extreme abuse of process, acting in bad faith, fraud upon the court, and malice inflicted upon the self-represented plaintiff, among other serious litigation misconduct by the lawyers when they were defence counsel in the underlying medical malpractice case. 

The plaintiff brought the underlying medical malpractice case to seek justice after she suffered bodily injury by Dr. Peter Whidden as the evidence shows, including evidence the plaintiff submitted for the summary judgment application the plaintiff was successful in defeating. The plaintiff did not expect the opposing lawyers McMahon and Burnett to engage in bloodsport outside the normal adversarial civil litigation process, which was essentially what they did. No self-represented plaintiff, or any litigant, should have to endure such malicious and underhanded conduct by opposing counsel. 

This case against lawyers McMahon and Burnett is not about opposing lawyers' duty of care to the other side; it is about acts of serious wrongdoing that are well settled in jurisprudence as rightful causes of action against opposing lawyers when warranted. This case is also about one of the most extreme cases of lawyer abuse inflicted upon a self-represented person.

New Series

Leading up to the June 28, 2018 hearing, look for a series of posts on this blog, each focusing on a category of litigation misconduct by the defendant lawyers. Given the extensive allegations and causes of action in this case, this series will not attempt to detail all of them but will highlight some of the most serious issues, being mindful that some things are reserved for trial. 

Case Update: New case management judge assigned; Party applications scheduled for re-hearing

As reported in this earlier blog post, in November 2017 the Court of Appeal granted the plaintiff's appeal to overturn Mr. Justice Nixon's refusal to recuse himself from case managing the lawsuit against defendant lawyers Megan McMahon and Taryn Burnett, and their law firm Gowlings.

A new (fourth) case management judge has now been assigned to the case and the two outstanding applications, the plaintiff's application for amendments and the defendants' application for striking, will be re-argued before her.

These applications are currently scheduled to be re-heard in June 2018, with a case management conference before that in April 2018 to introduce the new case management judge to the case.

Some of the issues and allegations against defendants McMahon, Burnett and Gowlings raised in the plaintiff's application for amendments can be read in this earlier blog post.

The purpose of the plaintiff's application for amendments is to add further allegations of litigation misconduct, and particulars, to her lawsuit against the defendants including for the events, and knowledge learned about them, that happened after the plaintiff filed her statement of claims in March 2013/January 2014. The plaintiff wants the full allegations of litigation misconduct before the court to show the enormity of lawyer abuse committed by the defendant lawyers in the plaintiff's underlying medical malpractice lawsuit which caused her damages.

The defendants of course do not want these allegations of their misconduct damaging to them to be introduced to the lawsuit and wish it would go away entirely, and will attempt to deny the plaintiff her justice through an application to strike the valid claims against them.

Due to ongoing delays in large part by the defendants, the plaintiff's original application for amendments has been outstanding since December 2013 (with proposed amendments filed later for the more recent events). The defendants did not file their application for striking until one year later, and nearly two years after the lawsuit commenced.

The date of the June 2018 hearing will be announced in this blog when it is confirmed closer to the hearing date.