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.
