Lawyer Abuse: 2019

November 14, 2019

Defendants attempt to block Plaintiff's amended factum for appeal / Application filed

The defendants in the serious lawyer wrongdoing lawsuit, Megan McMahon, Taryn Burnett, and Gowlings, are attempting to block the plaintiff from filing her amended factum for her appeal of Justice Michele Hollins' erroneous decisions.

The plaintiff's amended factum contains additional critical facts and case law argument for her appeal of Justice Hollins' serious errors.

The plaintiff circulated her amended factum to the defendants and case management clerk Laurie Baptiste on the October 1 deadline, albeit by email instead of filed hardcopies, seeking to file hardcopies the next morning. The plaintiff had hardcopies prepared the next morning with significant expense to her.

After opposing defendants' counsel Perry Mack read the plaintiff's amended factum circulated to him on October 1 and noted its strength, he sent a letter to the case management clerk Ms. Baptiste strenuously opposing its filing. This is consistent with Mr. Mack's and the defendants' long history of scorched earth tactics. It is also concerning that Mr. Mack and the defendants are benefitting from having read the plaintiff's amended factum from which to strategically prepare their reply factum due December 2.

Despite that the plaintiff submitted the amended factum on the October 1 deadline, Ms. Baptiste refused to file it at Mr. Mack's request. Further details of this very concerning matter are indicated in the plaintiff's filed documents, below.

The plaintiff's amended factum is in the October 8 post of this blog. Click here to read the amended factum Mr. Mack and the defendants do not want anyone to see.

The plaintiff filed a court application on November 14, 2019 seeking approval to file the amended factum concerning these and related issues. Below is the plaintiff's memorandum of argument for this application. Here, the plaintiff is referred to as the applicant, and the defendants as respondents.

Plaintiff's documents (PDF) related to this application at the Court of Appeal:

INTRODUCTION AND RELIEF SOUGHT

1. This is the application of the Applicant/Appellant/Plaintiff to file her amended factum [Applicant Affidavit] for consolidated appeals 1901-0078AC/1901-0179AC, and rescind the direction of the case management officer denying the filing of the amended factum. The Applicant circulated by email correspondence her amended factum containing further critical facts and case law argument on the October 1, 2019 deadline to Respondents’ counsel and the case management officer, with intention to file the hardcopies she had prepared the following morning. After Respondents’ counsel read the amended factum and noted its strength, on October 3, 2019 he opposed its filing. On October 8, 2019 the case management officer denied its filing.

2. This case is about egregious lawyer wrongdoing by the Respondents/Defendants Megan McMahon, Taryn Burnett, and their law firm Gowling WLG LLP (formerly Gowling Lafleur Henderson LLP, “Gowlings”), for which a growing body of binding jurisprudence permits remedy through the inherent jurisdiction of the Court. The Respondents maliciously harassed, defamed and defrauded the Applicant, and made misrepresentations to, and perpetrated fraud upon, the Court, among extensive further wrongdoing, for the purpose of personal and irrelevant attack on the Applicant, with intent to inflict emotional, physical and economic harm outside of their client's interest and in abuse of legal processes, leading to significant damages for which the Applicant seeks justice. All of the Respondents’ malicious, abusive and harassing applications were dismissed by the Court in the Applicant’s favour.

3. With misrepresentation of facts and omission of the Applicant’s causes of action, facts and evidence, and with complete void of any meaningful analysis or application of binding appellate law, Justice Michele Hollins denied the Applicant’s application for amended statements of claim and struck the claims, and allowed outrageous excessive costs significantly departing from jurisprudence. Justice Hollins did so while operating under serious conflicts of interest and apprehension of bias, including that at the same time of Justice Hollins’ appointment as case management judge to this case in November 2017, Respondents’ counsel Mr. Mack advised by letter December 1, 2017 that Justice Hollins is currently a Director of the Canadian Bar Foundation (CBF) and the Canadian Bar Law for the Future Fund (LFF) for which the Respondent Gowlings is legal counsel. Justice Hollins is also Council Member of the Canadian Bar Association (CBA), and recent national president of the CBA, having the self-described mandate “to serve as the face and voice of lawyers” and be “the essential ally and advocate of the legal profession.” The CBA is a partner to the separate legal entities CBF and LFF. Justice Hollins failed to make any disclosures on the record before hearing applications and denied the Applicant fair opportunity to inquire as to, and remedy, the conflicts of interest, following a December 5, 2017 letter Justice Hollins had sent through the Court stating she would continue as case management judge and that the subject would not be entertained further, all of which is in non-noncompliance with this Honourable Court’s decision in this same case in the Applicant’s favour, Carbone v. McMahon, 2017 ABCA 384 [TAB 1], which sets out disclosure requirements by judges where there are potential conflicts of interest.

THE FACTS

4. The Applicant required extensions to file her factum for Justice Hollins’ three related decisions in the timeframe normally allotted for one appeal, and she faced a number of issues not uncommon for a self-represented person. This included circumstances beyond the Applicant’s control, technical issues, and personal matters. The Applicant provided reasonable explanations.

5. The Applicant filed her factum on September 20, 2019. Her proposed amended factum provides further critical facts and case law argument for the important appeal issues. The deadline for the amended factum was October 1, 2019. On October 1, 2019 at 4:02pm the Applicant emailed it to the case management officer Laurie Baptiste and Respondents’ counsel Perry Mack, and asked if it could be accepted in softcopy at this time with printed hardcopies to be filed the next morning [Applicant Affidavit November 4, 2019, “Applicant Affidavit”]. Seven copies of the amended factum, with minor clarifying adjustments from the amended factum emailed October 1, were printed the morning of October 2, 2019 with an additional expense to the Applicant of $214.42, evidence of which the Applicant emailed to Ms. Baptiste and Mr. Mack [Applicant Affidavit].

6. After Mr. Mack read the Applicant’s amended factum circulated October 1, 2019 and noted its strength, he emailed correspondence October 3, 2019 opposing its filing, largely stating that the Applicant had already received extensions. His correspondence admitted the Respondents would not be prejudiced by its filing. This is because they have already read the amended factum and benefitted from having knowledge of it from which to strategically prepare their own reply factum which is due December 2, 2019. Mr. Mack’s letter states in part [Applicant Affidavit]:

“To be clear, we do not assert any specific prejudice to our clients that may arise from the granting of this latest request for indulgence. We assume that if the request is to be granted there would be a commensurate extension to the Respondents’ filing requirements. There is of course no scheduled hearing date for the appeals.”

7. On October 8, 2019 at 5:36pm, the case management officer Ms. Baptiste emailed correspondence denying filing of the Applicant’s amended factum. Ms. Baptiste ignored relevant facts and misstated facts, including, among other issues (see related Application document for additional details due to page restriction) :

(a) Ms. Baptiste disregarded and made no mention of the fact that the Applicant’s amended factum was sent to Ms. Baptiste and Mr. Mack, albeit by email, on the deadline of October 1, 2019 with the Applicant asking if she could file the hardcopies to be printed the next morning on October 2.

(b) Ms. Baptiste disregarded and made no mention of the fact that the Applicant had seven copies of the amended factum printed [with minor clarifying adjustments], the morning of October 2, 2019, which was in progress prior to Ms. Baptiste responding on October 2, 2019 to the Applicant’s October 1, 2019 email.

(c) Ms. Baptiste disregarded and made no mention of the fact that on the morning of October 2, 2019 the Applicant emailed to Ms. Baptiste and Mr. Mack a receipt for the printing of the seven amended factums she paid in the amount of $214.42.

(d) Ms. Baptiste disregarded and made no mention of the fact that Mr. Mack admitted in his October 3, 2019 letter opposing the filing of the amended factum that the Respondents would not be prejudiced by its filing. It is concerning that instead of acknowledging the fact that Mr. Mack admitted the Respondents would not be prejudiced by the filing of the amended factum, Ms. Baptiste’s letter stated the Applicant said the Respondents would not be prejudiced by it; the Applicant merely restated Mr. Mack’s admission of no prejudice to the Respondents.

(e) Ms. Baptiste misstated that she allowed the Applicant 12 additional pages for the Applicant’s factum. As Ms. Baptiste had directed the appeals of the three decisions to be heard together, the factum for the appeals was consolidated. The factum page length of 42 pages is simply the combined maximum factum page length of the standard appeal (30 pages) and the fast track appeal (12 pages).

(f) Ms. Baptiste complained the Applicant sent her an email on October 2, 2019 before she had read the Applicant’s email on October 1, 2019, as if this was somehow the Applicant’s fault. Further, Ms. Baptiste misstated the time the Applicant sent her email on October 1, 2019 to be 4:18pm despite that the evidence shows the Applicant sent her email at 4:02pm, just two minutes after the counter closing time.

(g) Ms. Baptiste took out of context the Applicant’s filing of her brief from the court below (which contains her amended statements of claim) in her Extracts to somehow be an attempt to rely on her brief for the within appeals. The Applicant wrote that her brief for the court below in her appeal Extracts contained the filed amended statements of claim in its appendix, and the brief had the filed/stamped page for these amended statements of claim critical to the within appeals. The Applicant had also written that the case law in her brief would not be relied on and that this was another reason she needed to have her case law argument (also including case law beyond what was in the brief) in her amended factum allowed. Beyond this, the fact that Justice Hollins entirely ignored the Applicant’s extensive submissions in her brief is relevant to the appeal.

(h) Ms. Baptiste was excessively defensive of Mr. Mack and the Respondents to the point that she misstated some facts in a manner to assist them. On October 4, 2019 the Applicant had sent email correspondence to Ms. Baptiste with brief remarks about Mr. Mack’s October 3, 2019 letter. One point the Applicant raised is that the Respondents themselves have not adhered to filing requirements, and the Applicant referred to the previous decision in this case, Carbone v McMahon, 2015 ABCA 263 [TAB 2], which noted that the Respondents had not filed reply materials and were not permitted to make oral submissions, and made clear the purpose of the relevant rule. Ms. Baptiste misstated the events in her October 8, 2019 letter to support the Respondents and, further, in her prior October 4, 2019 email correspondence to the Applicant about this matter Ms. Baptiste wrote, “Your comments about past actions of the Respondent are not relevant to the current matter.” The Applicant was at the hearing for that application and she is well aware of what transpired, including that Respondents’ counsel not only failed to file reply materials but failed to inform the Applicant of their general position so that the Applicant could not be prepared for it, and Respondents’ counsel stated that they “didn’t know” they had to file reply materials despite that they regularly appear before this Court and are well aware of the Rules.

8. It is correct that the Applicant requested a number of extensions, which is due to issues encountered, not uncommon for a self-represented person also under the pressure of preparing appeal materials for three decisions during the timeframe normally allotted for one. The Applicant requested short extensions of mostly one or two days and in hindsight it would have made sense to request one longer extension to accommodate for issues that could arise for a self-represented person.

9. The Respondents have a history of opposing reasonable extensions required by the Applicant, necessitating applications to justices of this Court which were granted. For example, the Respondent Megan McMahon opposed a factum extension in the underlying medical malpractice matter which was required because the trial judge Charlene Anderson would not release the oral trial decision transcript to the Applicant despite that three months had passed since the Applicant ordered it. This Court granted the Applicant’s application for the factum extension on September 11, 2014.

THE LAW AND ARGUMENT

35. Rule 14.36(3) provides that a single appeal judge may rescind a case management officer’s direction. Rule 14.73(b) provides that a single appeal judge may cure any contravention of a procedure.

36. It is the fundamental right of a party to be heard and present their case to the decisionmakers. Jurisprudence holds that the most important factor when deciding a matter is the interests of justice. The Applicant’s amended factum is a critical part of the Applicant’s appeal. It contains additional critical facts and case law argument for important appeal issues. The interests of justice require that the Applicant should be allowed to put her amended factum before the appeal panel for consideration.

37. In Aubin v. Quantiam Technologies Inc., 2018 ABCA 168 at para. 9 [TAB 3], in addition to rescinding direction of the case management officer for an appeal timeline, this Court directed that “as a matter of fundamental fairness” the applicant is entitled to file materials to be considered by the appeal panel: “That said, as a matter of fundamental fairness, the respondent should be entitled to and I so direct, that she have leave to file what will amount to a condensed book to be considered by the appeal panel.”

38. The Respondents have already read the Applicant’s amended factum circulated on the October 1, 2019 deadline and noted its strength. It is prejudicial to the Applicant for the Respondents to benefit from having full knowledge of the Applicant’s amended factum and to use it to inform the preparation of their reply factum due December 2, 2019, while at the same time denying the Applicant reliance on her own amended factum. Mr. Mack admitted in his October 3, 2019 correspondence that there is no prejudice to the Respondents in the filing of the amended factum.

39. In denying the amended factum, Ms. Baptiste’s October 8, 2019 letter states “Any additional submissions that you want to make in this appeal will have to be made at the oral hearing” and she would only allow the Applicant to provide a letter with a “list of names of authorities” and “no additional submissions of any kind.” This Court has made clear in its own reference documents that the factum is the most important argument in an appeal and that oral argument is not the time to raise new submissions. The Legal Education Society of Alberta’s October 8, 2015 article “Oral Argument in the Court of Appeal of Alberta” [TAB 4] cites this Court’s July 12, 2004 document “Importance of Factums” in stating, “Today, factums…are considered by the Court of Appeal to be the most important argument in the appeal” and “Oral argument lets counsel answer [the panel’s] questions. It is not the time to explain the facts or issues, raise new arguments….” Accordingly, it is this Court’s standard that important submissions be made in the factum and not at oral submissions. Further, it would not be efficient use of the Court’s time, or even possible, for the Applicant to read her 42 page amended factum during the 45 minutes allotted for oral submissions.

40. The Supreme Court of Canada has made clear that self-represented persons should not have their legal rights hindered by procedural rules, and that all court participants, including court administrators and opposing counsel, have a role to play in promoting access to justice for self-represented persons. In Pintea v. Johns, 2017 SCC 23, the Supreme Court endorsed the Statement of Principles on Self-represented Litigants. These Principles include:

[J]udges, court administrators, members of the Bar…each have responsibility to ensure that self-represented persons are provided with fair access and equal treatment by the court.

Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.

41. The Applicant will bring with her to the hearing of the within application the seven copies of the amended factum that were prepared the morning of October 2, 2019.

42. In the interests of the public and transparency, and consistent with the Applicant’s Notices of Appeal stating that her appeal materials will be distributed to all public offices relevant to issues in the within appeals, the within application, and the Applicant’s amended factum and other appeal materials are being distributed to all provincial and federal Attorney Generals and Ministers of Justice in Canada, all provincial and federal law societies in Canada, all provincial and federal Privacy Commissioners in Canada, the Canadian Forum on Civil Justice, the National Action Committee on Access to Justice, and the National Judicial Institute.

October 8, 2019

Carbone Factum for appeal of Justice Michele Hollins' Decisions

In the matter of the lawyer wrongdoing lawsuit against defendant lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings, the plaintiff Carbone's amended factum to appeal the erroneous decisions of Justice Michele Hollins appears below.

This amended factum contains the main issues, facts and arguments which will be presented at the upcoming appeal of Justice Hollins' decisions for Amendments/Striking, Recusal, and Costs before the Court of Appeal.

Justice Hollins' decisions contain very serious errors amounting to a miscarriage of justice, which should offend every citizen who expects our judges to be fair and transparent. Some of these issues were briefly summarized in previous blog posts here and here.

As stated in the Notice of Appeal filed by the plaintiff, in the interests of the public and transparency, this factum will be distributed to all provincial and federal Attorney Generals and Ministers of Justice in Canada, all provincial and federal law societies in Canada, all provincial and federal Privacy Commissioners in Canada, the Canadian Forum on Civil Justice, the National Action Committee on Access to Justice, and the National Judicial Institute.

Click here to view this amended factum in PDF format. It is also attached to the plaintiff's affidavit filed November 14, 2019. The original factum was filed September 20, 2019.

Given the length of this factum blog post (equivalent to 42 document pages), please use the menu links at right to access previous blog posts.

PART 1 – FACTS

1. This is the Factum of the Appellant/Plaintiff for combined appeal 1901-0078AC/1901-0179AC. The Appellant appeals from the decisions of Madam Justice Michele H. Hollins in which she erred in:

(a) Denying the Appellant’s application to amend her statements of claim and allowing the Respondent’s application to strike (“the Amendments/Striking Decision”);

(b) Denying the Appellant’s application for recusal (“the Recusal Decision”); and

(c) Allowing the Respondents’ application for enhanced costs (“the Costs Decision”).

2. Justice Hollins made serious errors in her adjudication of these applications and the Appellant seeks that the decisions be set aside and that Justice Hollins be replaced with another case management judge.

Background and Nature of Case

3. The Respondents/Defendants in this action, Megan McMahon ("the Respondent McMahon"), Taryn Burnett ("the Respondent Burnett") and their law firm Gowling WLG LLP (formerly Gowling Lafleur Henderson LLP, “the Respondent Gowlings”), were defence counsel in the underlying medical malpractice action arising from the surgical injury of the Appellant by Dr. Peter Whidden ("the Whidden Defendant") requiring her to undergo multiple corrective surgeries. In that underlying action (“the Whidden Action”), the Respondents McMahon and Burnett maliciously harassed, defamed, and defrauded the Appellant, and made misrepresentations to, and perpetrated fraud upon, the Court, among other serious wrongdoing. The Respondents did so for the purpose of personal and irrelevant attack on the Appellant, with intent to inflict emotional, physical and economic harm, outside of their client's interest and in an egregious abuse of legal processes. All of the Respondents’ malicious, abusive and harassing applications were dismissed by the Court in the Appellant’s favour. The egregious and incessant misconduct by the Respondents McMahon and Burnett was so malicious that, among other damages, the Appellant’s family doctor referred her to the emergency upon noting health complications due to the ordeal [Appellant Extracts Vol 1- Tab 1].

4. The Appellant seeks justice for the damages resulting from the Respondents McMahon, Burnett and Gowlings’ extreme wrongdoing. To be clear, the causes of action in the within claims are separate and distinct from the Whidden Action and have not been dealt with to date. The Appellant has always maintained that the issues in the claims against the Respondents dealing with damages are being dealt with in the within actions.

5. This case is not about duty of care to the opposing side. It is about opposing lawyer serious wrongdoing for which well-settled jurisprudence provides remedies through the Court.

6. The claims against the Respondents McMahon, Burnett and Gowlings include:

a) A pattern of serious abuse of process in various forms, including the Respondents bringing a number of malicious applications with entirely false allegations against the Appellant, all of which were properly dismissed by orders of the Court [Appellant Extracts Vol 1 – Tab 1].

b) Malicious harassment of the Appellant for the purpose of personal attack outside their client’s interest.

c) Defrauding the Appellant and committing fraud upon the Court with a $150,000 bill of costs [Appellant Extracts Vol 1 – Tab 1], 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 Appellant’s favour, applications for which the Appellant was successful, applications for which the Respondents were refused costs sought, and duplicated bill of costs items, and refusing to provide supporting documentation for the bill of costs upon the Appellant’s request [Appellant Extracts Vol 1 – Tab 1]. The Respondents fraudulently procured a costs judgment upon the Court being misled and deceived by acting on the false representations made by the Respondent lawyers McMahon and Burnett.

d) Unlawfully obtaining the Appellant’s credit report on April 11, 2013 [Appellant Extracts Vol 1 – Tab 1], which came to light in 2015, in violation of her privacy and as a means of assessing the Appellant’s financial assets, along with various property searches, to carry out their fraudulent scheme. In a related non-common law matter subject to Personal Information Protection Act (PIPA) legislation, on December 12, 2016, the Office of the Information and Privacy Commissioner of Alberta (OIPC) issued decision #003172 denying the Respondent Gowlings its application seeking authorization to disregard the Appellant’s access request for her credit and financial information, and ordering Gowlings to respond to that access request [Appellant Extracts Vol 1 – Tab 1, subtab 20].

e) Numerous additional serious and deceitful misrepresentations to the Court [Appellant Extracts Vol 1 – Tab 1].

f) Defaming the Appellant, including with unsuccessful malicious applications filled with absolutely false allegations brought in bad faith seeking to deceitfully label the Appellant injurious to her reputation [Appellant Extracts Vol 1 – Tab 1]; conspiracy with a publisher, Thomson Reuters Canada, which advertises for Gowlings, and from which the Appellant has obtained an out of court settlement [Appellant Extracts Vol 1 – Tab 1] and; in making defamatory statements about the Appellant to her lawyer on limited retainer [Appellant Extracts Vol 1 – Tab 1].

g) Intentionally inflicting physical, emotional and economic harm upon the Appellant [Appellant Extracts Vol 1 – Tab 1].

Overview of facts relating to appeal issues

7. In previous appeals in these matters the Appellant has presented appeal issues in terms of judicial errors and oversights. However, when a judge blatantly distorts the record, as in the present case, she brings the administration of justice into disrepute and it is necessary to approach these issues directly and openly.

8. Justice Hollins’ Amendments/Striking, Recusal and Costs Decisions are a distortion of the facts and an affront to binding appellate law which should offend every citizen who expects our judges to be fair and transparent. These decisions can not be allowed to stand.

Amendments/Striking

9. Justice Hollins denied the Appellant’s application for amendments and allowed the Respondents’ application for striking. The Amendments/Striking Decision is completely void of truthful analysis of the Appellant’s pleadings, facts and evidence concerning the Respondent lawyers McMahon, Burnett and Gowlings’ serious wrongdoing.

10. This includes that Justice Hollins failed to state the true nature of the Appellant’s pleadings relating to the Respondents’ fraudulent misrepresentations and perpetration of fraud upon the court, in addition to their abuse of process with malicious applications filled with egregiously false misrepresentations, all of these applications being properly dismissed by the Court in the Appellant’s favour [Appellant Extracts Vol 1 – Tab 1 – Appellant June 5, 2018 Affidavit]. Justice Hollins failed to mention the Appellant was the successful party in defeating these applications.

11. For example, Justice Hollins did not make a single reference to the highly particularized pleadings of fraud [Appellant Extracts Vol 2 – Tab 2, subtabs 1 & 2] which are easily verifiable with a review of the Whidden Action bill of costs amounting to nearly $150,000 [Appellant Extracts Vol 1 – Tab 1], signed by the Respondent McMahon, in comparison with the court record and the Appellant’s June 5, 2018 affidavit. This comparison reveals the extensive costs the Respondents claimed that were actually denied or reversed by the Court, and purported application dates that do not exist. Justice Hollins dishonestly reduced this very serious pleaded wrongdoing to a mere procedural matter in her Amendments/Striking decision at para. 23: “She calls the costs award “fraudulent” because the Defendants did not provide certain information to her in advance of the appeal from that costs award.” This is absolutely false. It is also important to note that the pleadings of the Respondents’ fraudulent misrepresentations and fraud upon the Court have not been dealt with to date and the Appellant has always made clear throughout the course of the within actions and the Whidden Action that these distinct causes of action for damages are being dealt with in the within actions. Justice Hollins further attempted to avoid referencing the pleadings concerning the Respondents’ fraud by stating the Appellant’s proposed amended claims only deal with intrusion upon seclusion and defamation, despite the fact that the Respondents’ fraudulent conduct occurred after the Appellant’s original claims against the Respondents McMahon and Burnett were filed and, therefore, the fraud allegations could only have been made in the proposed amended claims.

12. As another example of Justice Hollins’ suppression of the Respondents’ serious wrongdoing, Justice Hollins entirely avoided making any mention that the Appellant successfully defeated the Respondents’ applications for contempt for costs (a disallowed ground for contempt which is in itself an abuse of process), two applications for vexatious declaration, and three applications for security of costs, all of which were filled with egregiously false and malicious misrepresentations. These applications were an abuse of process and collateral attacks, and all were properly dismissed by the Court [Appellant Extracts Vol 1 – Tab 1 – Appellant June 5, 2018 Affidavit]. It is egregious that Justice Hollins stated in her decision that somehow the Appellant is acting in abuse of process and collateral attack by pursuing justice for the damages incurred, which the Appellant is fully entitled to do pursuant to well-settled jurisprudence.

13. It is important to note that Justice Hollins attempted to frame most of the Appellant’s pleadings as duty of care to the opposing side. There is no such basis for this improper assertion of the Appellant’s pleadings. The Appellant’s pleadings are all based in causes of action for which the courts provide remedy and are supported by binding jurisprudence, including for serious wrongdoing committed by opposing counsel for which the Court has inherent jurisdiction. Further, Justice Hollins chose to instead highlight procedural matters despite that it was made clear to Justice Hollins that many of the claim statements that refer to procedures are for context purposes in support of facts relevant to the pleadings

14. It is highly concerning that Justice Hollins dismissed the Appellant’s claims without even cursory analysis of her pleadings and evidence, contrary to jurisprudence holding that a judge must provide analysis in reasons and that sufficient reasons are mandatory to inform the parties of reasoning for a decision and to enable meaningful appellate review.

15. Justice Hollins’ unhappy litigant theory also rings hollow. The Appellant successfully defeated all of the Respondents’ malicious applications brought in abuse of process and, with respect to the Whidden medical malpractice matters, it is important to note that the Appellant filed the claims against the Respondents before the Whidden trial was resolved, and while the Appellant was in a position of overall success approaching that trial, having defeated the Whidden Defendant summary judgment application [Appellant Extracts Vol 1 – Tab 1].

16. With respect to the Appellant’s proposed amendments for intrusion upon seclusion regarding the Respondents’ unlawful obtaining of the Appellant’s credit report, Justice Hollins entirely ignored the Appellant’s extensive and well pleaded facts, supported by evidence [Appellant Extracts Vol 1 – Tab 1], including that the Respondents’ own words are that they obtained the Appellant’s credit report because they had a security for costs application, which was dismissed by the Court and is not a lawful nor reasonable excuse to obtain sensitive credit information of an opposing party. Justice Hollins also failed to acknowledge the OIPC decision #003172 in favour of the Appellant [Appellant Extracts Vol 1 – Tab 1] dismissing Gowlings’ application which sought to disregard the Appellant’s PIPA access request to obtain her credit and financial information Gowlings had. Since that OIPC decision, the Respondents invented a new excuse for pulling the Appellant’s credit report that is completely false regarding payment of cost for which they have no evidence to support and which only appeared in the Respondents’ brief. Justice Hollins also failed to note that jurisprudence holds that a Defendants’ defence argument can not be accepted on an application for amendments and that pleadings must be accepted as true. It is further concerning that Justice Hollins erred in jurisdiction when she purported to adjudicate a “breach of privacy” claim which is not a common law tort and is instead governed by PIPA privacy legislation and the OIPC; breach of privacy can not be adjudicated at the Court of Queen’s Bench as a court/tribunal of first instance. Further, Justice Hollins essentially hijacked the Appellant’s PIPA complaint Justice Hollins was well aware the Appellant was dealing with. The June 28, 2018 amendments/striking proceedings transcript [AB – Tab 6] shows that Justice Hollins told the Appellant to tell her details of the breach of privacy PIPA-legislated matter and privacy authorities she was using for her PIPA complaint (e.g. authorities which found that law firms were in breach of privacy legislation when obtaining opposing party credit reports). Justice Hollins altogether ignored this information in her ruling of breach of privacy which, again, is an error in jurisdiction. The Appellant could not have known Justice Hollins intended to hijack her PIPA complaint against Gowlings. Moreover, when the tort of intrusion upon seclusion is considered (which is different than legislated breach of privacy Justice Hollins purported to adjudicate), it must be noted it is a developing area of law requiring full argument and full evidentiary record and can not be adjudicated on amendments/striking applications. Justice Hollins further failed to allow the Appellant opportunity to respond to the Respondents’ improper “defence argument” they raised at the amendments/striking proceeding. The Appellant has evidence she will use at trial to refute their convenient defence. It is a miscarriage of justice that Justice Hollins went to desperate lengths to protect the Respondent lawyers to the extent that she made an irresponsible ruling that puts sensitive credit information of all citizens at risk, a topic of great concern today. Justice Hollins’ ruling on “breach of privacy” can not be allowed to stand, not only for the purpose of resolving the Appellant’s claim fairly but to protect all citizens’ credit information from Justice Hollins’ dangerous precedent.

17. With respect to the defamation/conspiracy claim involving the Thomson Reuters Canada article, for which the Appellant received a settlement and was pursuing the Respondent Gowlings for its part in the wrongdoing, the Appellant’s proposed amended claims contain pleadings for this issue and she provided some evidence in her June 5, 2018 affidavit, wherein she also advised she could provide the precise defamatory words if required by the court. The Appellant advised Justice Hollins at the June 28, 2018 amendments/striking proceeding that she would provide additional evidence as to the precise defamatory words if required by the Court but that this would in part negate the settlement. As with other pleadings and issues in the claims, Justice Hollins distorted the facts with this defamation/conspiracy claim. Justice Hollins stated in her decision at paras. 49 and 50 that no particulars of the article were provided and that the Appellant said she will provide them at a later date and that, therefore, Justice Hollins must dismiss the claim, without any mention that the Appellant had made clear she had this information and was prepared to provide it [AB – Tab 6, Transcript of June 28, 2018 proceedings, p. 87, lines 8-14]

18. It is clear that, once again, Justice Hollins simply wished to dismiss the claim in any way she could, without consideration of the facts and evidence or allowance of opportunity for the Appellant to submit further facts or particulars she said she had. This is contrary to jurisprudence and the Statement of Principles on Self-Represented Litigants, endorsed by the Supreme Court of Canada, requiring that allowance be made to amend and provide further particulars if necessary before striking, and that the Court must provide a self-represented person, in particular, opportunity to correct deficiencies.

19. Jurisprudence holds that an amendment application is usually heard before a striking application. Despite this jurisprudence and also despite that the Appellant brought her application to amend in December 2013 (with further amendments later due to events arising over time and to add further particulars for clarity of the record), nearly a year before the Respondents brought an application to strike, Justice Hollins heard the two applications at the same time. Justice Hollins did not state any valid reason for this other than it was convenient for her. This had the result of denying the Appellant her right to be fully heard on the amendments, for which jurisprudence holds there is a high bar to deny, and striking them without even allowing opportunity to amend if necessary. Justice Hollins also misstated the nature of the amendments when she characterized them as only being for the new claims of defamation and intrusion upon seclusion. The amendments also included the new claim of fraud and further particulars of the Respondents’ egregious wrongdoing; this was also clear from this Honourable Court’s previous decision in this case in August 2015: Carbone v McMahon, 2015 ABCA 263 at para 3(c). It bears mentioning this decision was cited by Goodswimmer v Canada (Attorney General), 2017 ABCA 365, stating at para. 17 “Where an application to strike a pleading is brought together with an application to amend that pleading, it is usually fair and efficient to consider the amendment application first.”

20. The Appellant led extensive evidence in her affidavit filed June 5, 2018 [Appellant Extracts Vol 1] for her amendments and causes of action, and more than the modest amount required by jurisprudence. It must be noted that the Respondents cross-examined the Appellant for two hours for the allowable purpose of questioning on the June 5, 2018 affidavit, and could not refute any of the Appellant’s unshakeable and solid evidence. It should also be noted that Respondents’ counsel used that time to instead attempt a questioning for discovery (which the Respondents’ previously refused of themselves). The Respondents could not rely on a single passage of the cross-examination transcript as it fully supports the Appellant’s evidence.

21. To be clear, the Respondents failed to lead any evidence whatsoever on their striking application. This is true of all of their claimed striking grounds. Only no disclosure of reasonable cause of action can not rely on evidence and even that ground can not survive the Appellant’s properly and clearly pleaded causes of action in her proposed amended statements of claim [Appellant Extracts Vol 2 – Tab 2, subtabs 1 & 2], facts which jurisprudence holds must be accepted as true. In the passage below from the June 28, 2018 amendments/striking proceedings, Respondents’ counsel acknowledged the Respondents have no evidence for their striking application [AB, Tab 6, p. 65, lines 2-5].

2 THE COURT: Right. I was just trying to sort out this issue about

3 are you trying to lead evidence on your application to strike?

5 MR. MACK: And I’m not.

22. The above issues outline some of the issues and errors with the Amendments/Striking Decision. Given the extensive causes of actions erroneously struck, it is imperative that this Honourable Court review the entire record for a full understanding of these issues, including the Appellant’s proposed amended statements of claim [Appellant Extracts Vol 2 – Tab 2, subtabs 1 & 2] and the Appellant’s June 5, 2018 affidavit [Appellant Extracts Vol 1 – Tab 1] which can not be entirely addressed in this factum given space limitations.

Recusal

23. In a decision dated November 16, 2017, this Honourable Court issued decision in this case Carbone v. McMahon, 2017 ABCA 384, allowing the Appellant’s appeal to reverse the previous case management judge Justice Nixon’s oral decision refusing recusal. This important decision sets out disclosure requirements by judges where there are potential conflicts of interest.

24. There were three previous case management judges before Justice Hollins, the history of which is set out in Carbone v. McMahon, 2017 ABCA 384. As such, it was incumbent upon Justice Hollins to ensure there were no conflicts of interest that would further hinder or delay the fair progress of these actions. This responsibility includes disclosing any potential conflicts of interest on the record at the outset and with sufficient detail, and providing opportunity to remedy them.

25. In blatant disregard for decision Carbone v. McMahon, 2017 ABCA 384, Justice Hollins failed to make disclosures on the record relating to, denied the Appellant fair opportunity to make inquiry relating to, and failed to give reasons required for appellate review relating to, the reasonable apprehension of bias raised by the relationship of the Respondent/ Defendant Gowlings' ongoing legal representation of the Canadian Bar Foundation (CBF) and the Canadian Bar Law for the Future Fund (LFF), of which Justice Hollins is identified as Director. Counsel for the Respondents, Mr. Mack, advised of this current directorship on December 1, 2017 at the same time of Justice Hollins' assignment as case management judge to this case [Appellant Extracts Vol 2 – Tab 4 – Appellant April 16, 2019 Affidavit]. To be clear, Mr. Mack’s December 1, 2017 letter advised that Justice Hollins is currently identified as Director of the CBF and LFF at the same time of her assignment in November 2017, and there is no evidence or information to suggest otherwise. In addition to this significant conflict of interest, there are further potential conflicts of interest which Justice Hollins failed to disclose.

26. By letter dated December 1, 2017, the Appellant promptly forwarded to the Court Mr. Mack’s letter of the same date disclosing the relationship connection [Appellant Extracts Vol 2 – Tab 4].

27. Associate Chief Justice Rooke sent a reply letter dated December 5, 2017 [Appellant Extracts Vol 2 – Tab 4], with copy to Justice Hollins, stating some details of Justice Hollins' involvement with the Canadian Bar Association (CBA), and not the CBF and LFF, the two organizations of which Mr. Mack’s December 1, 2017 letter advised Justice Hollins was Director. It is also important to note that the CBA, CBF and LFF, are separate legal entities, each with different Board of Directors and incorporation numbers [Appellant Extracts Vol 2 – Tab 4] and, accordingly, any association of Justice Hollins with the CBA is not interchangeable with her Director positions with the CBF and LFF.

28. The Court/Justice Hollins’ December 5, 2017 letter [Appellant Extracts Vol 2 – Tab 4] concluded with this firm statement that Justice Hollins will continue as case management judge in the actions and the subject would not be entertained further:

“In the result, Justice Hollins will continue as Case Management Justice (CMJ) in these actions, and I will entertain no more correspondence on the subject.”

29. This conclusion unfairly restricted the Appellant from remedying the conflict of interest concerning Justice Hollins and her current directorship at the relevant time with the CBF and LFF, which was not addressed at all in the Court/Justice Hollins’ December 5, 2017 letter, or on the record in court proceedings at any time.

30. It is highly significant that no disclosures of potential conflicts of interest of any kind were made on the court record and at the outset, contrary to binding appellate law requirements, including as set out in Carbone v. McMahon, 2017 ABCA 384.

31. Justice Hollins went on to adjudicate the amendments and striking applications on June 28, 2018 and at no time did she ever make disclosure on the record as to the potential conflicts of interest or offer an opportunity to remedy them. Subsequently, Justice Hollins issued the entirely unfair Amendments/Striking decision noted above.

32. The Appellant later brought an application for recusal of Justice Hollins as it was no longer tenable for her to remain silent and be denied her right to inquire as to conflicts of interest given the further damage to her case and irreparable harm that could ensue by Justice Hollins’ continued case management. Justice Hollins permitted this recusal application only after she unfairly dismissed the Appellant’s claims and after the Appellant filed an appeal therefrom [AB- Tab 5]. The Appellant also raised further conflicts of interest she had become aware of later, which Justice Hollins had also not disclosed.

33. A second undisclosed conflict of interest is that Justice Hollins is currently a Council Member of the Canadian Bar Association, with significant operational and strategic responsibilities. The CBA is a partner to the CBF and LFF, represented by Gowlings.

34. A third undisclosed conflict of interest is that Justice Hollins is currently, and has been for more than a decade, inextricably linked to activities, operations and strategies of the CBA, whose agenda is stated in CBA materials to be to champion lawyers, serve as the “face and voice of lawyers”, and be “The essential ally and advocate of the legal profession in Alberta” [Appellant Extracts Vol 2 – Tab 4 - Appellant Affidavit April 16, 2019]. Justice Hollins’ Questionnaire for Judicial Appointment [Appellant Extracts Vol 2 – Tab 4] shows the details of her extensive and lengthy involvement with the Canadian Bar Association, including Director and other positions, and indication that some of these positions extend into 2017. Further, Justice Hollins’ personal social media Twitter account [Appellant Extracts Vol 2 – Tab 4], currently with nearly 300 occurrences of the word “CBA”, is used extensively to promote the CBA agenda and lawyers. A March 31, 2019 National Post article states that the Chief Justice of the Supreme Court of Canada Richard Wagner does “not favour judges engaging on social media and potentially compromising their status as aloof from social and political debate” [Appellant Extracts Vol 2 – Tab 4], and the Canadian Judicial Council website states that on March 7, 2019 it invited public input regarding the ethical obligations of superior court judges in Canada on a range of issues, including “whether judges should be using social media” and “the risks and pitfalls to judges who use social media.” It is submitted that Justice Hollins’ Twitter account is an example where a judge has entered into those risks and pitfalls. It promotes and markets the CBA agenda and lawyers extensively. Justice Hollins’ conflicting CBA role as “essential ally and advocate of the legal profession in Alberta” and related activities to this end are incompatible with her role in case managing and adjudicating applications in the within case against Respondent lawyers McMahon, Burnett and their law firm Gowlings. This is not to say that a judge should not be involved with the CBA; rather all circumstances of a case a judge is assigned to should be taken into consideration, consistent with binding jurisprudence on apprehension of bias.

35. Justice Hollins’ Recusal Decision distorts a number of facts concerning the treatment of the conflict of interest concerning her Director positions with the CBF and LFF which were current at the time of her case management assignment in November 2017. This includes, among many other issues, that:

(a) Justice Hollins failed to transparently state that the Court’s December 5, 2017 letter did not make any mention of the CBF or LFF, the two organizations raised in Mr. Mack’s December 1, 2017 correspondence of which Justice Hollins is currently identified Director;

(b) Justice Hollins failed to transparently state that the Court’s December 5, 2017 letter stated in no uncertain terms that Justice Hollins will continue as case management judge and, further, that the subject would not be entertained further, thereby failing to remedy, and failing to provide opportunity to remedy, the conflict of interest;

(c) Justice Hollins suggested that the Appellant could have brought a recusal application earlier and stated that the December 5, 2017 letter merely states the Appellant was only restricted from writing to the Associate Chief Justice about her CBA relationship. This is incorrect and highly misleading as the Court’s letter clearly states Justice Hollins would continue as case management judge and the subject would not be entertained further. It strains credulity to believe that Justice Hollins thought the Appellant could defy the Court’s direction in the letter. The Appellant only brought the recusal application later because it was no longer tenable for her to remain silent and be denied her right to seek disclosure, and the interests of justice demanded it. Justice Hollins also improperly stated the Appellant accepted the explanation in the Court’s December 5, 2017; there is nothing to suggest that the Appellant accepted the reasoning and failure to disclose.

(d) Justice Hollins made the improper and misleading assertion that the purpose of the corporation reports the Appellant obtained online in April 2019 is to show she was not a Director of the organizations. The Appellant had made clear in oral submissions at the recusal proceeding on April 26, 2019 [AB] and in her April 16, 2019 affidavit [Appellant Extracts Vol 2 – Tab 4], that she did not have access to prior online corporation reports and that the purpose of showing the current reports she could obtain was to show that the CBA, CBF and LFF are all separate legal entities, with different directors and incorporation numbers and that, therefore, the Court’s December 5, 2017 reference to the CBA was irrelevant to the conflict concerning the CBF and LFF raised in Mr. Mack’s letter, as the three organizations are not interchangeable.

36. Throughout the recusal and costs proceedings on April 26, 2019 Justice Hollins was extremely hostile and defensive. This includes that she heavily raised her voice at the Appellant, shrieked, excessively interrupted and argued with the Appellant during submissions, and displayed other injudicial behaviour [AB – Tab 7; Appellant Extracts Vol 2 – Tab 7].

Costs

37. Justice Hollins failed to allow the Appellant sufficient time to prepare for, and respond to, the enhanced costs application which seeks a significant amount of money. The four business days Justice Hollins gave the Appellant to deal with the enhanced costs application is grossly insufficient. Those business days are April 16, 17, 18 & 23, also considering the Easter holidays during this time. The Respondents grossly overstated costs they claimed [Appellant Extracts Vol 2 – Tab 6 - Appellant Affidavit June 25, 2019], and the Appellant was entitled to have sufficient time to obtain legal advice from a lawyer, obtain records from the court including transcripts, and conduct legal research in order to properly respond to the application. Justice Hollins ignored the Appellants' concerns she raised multiple times prior to, and at, the enhanced costs hearing that the timeline given to the Appellant to prepare for the enhanced costs application was not sufficient to enable the Appellant to properly respond to it. Justice Hollins suggested during the application proceeding that the Appellant should have been able to guess what the Respondents' enhanced costs application and bill of costs would have sought. This is absurd. Further, Justice Hollins’ suggestion that Mr. Mack sent an email about costs earlier that would somehow enable the Appellant to prepare is also false. There is no such email or correspondence from Mr. Mack of any kind prior to April 15, 2019 with respect to the specific costs they sought. It also bears mentioning that Mr. Mack acknowledged during the enhanced costs proceeding that his usual practice is to exchange bill of costs with the opposing party ahead of time, which he did not do in the present case.

38. Some of the misrepresented, inappropriate, and incorrect items claimed in the Respondent’s bill of costs [Appellant Extracts Vol 2 – Tab 6] on a double costs and column 2 basis include, among many other issues, applications which did not take place, such as an attendance on March 24, 2014 at which Mr. Mack and the Respondents sought and obtained an adjournment (for a second time) to delay the Appellant’s application for amendments to her claims; an ex-parte application by Mr. Mack on December 10, 2014 which was dismissed by the court, involving Mr. Mack attempting to improperly add a malicious application for vexatious declaration (which the Respondents vexatiously brought on the same grounds already dismissed in the Whidden Action) to an order despite that the terms for the order were already set on December 4, 2014, and the result was that the judge agreed with the Appellant’s affidavit stating he did not order the application Mr. Mack attempted to add; an application for which a column 1 cost of $250 was already dealt with and yet Mr. Mack and the Respondents sought to inflate it to $1500 including on a double costs and column 2 basis; attendances at which judicial conflict of interest issues were the subject discussed with prior case management judges Justice Wilson, Justice Hawco and Justice Nixon who were subsequently recused or removed from the within actions; and, items for which costs/disbursements can not be claimed (e.g. non-refundable conduct money which the Respondents were required to pay the Appellant for her attendance for cross-examination on her June 5, 2018 affidavit, and for which the Respondents egregiously claimed double costs). To be clear, Mr. Mack's and the Respondents' brief filed April 25, 2019 states at paragraph 13 that they seek double costs for all items claimed in their bill of costs [including the Appellant’s own conduct money expense of $426] in a "lump sum" in the amount of $27,500.00. These are just some of the serious issues with the bill of costs items claimed by the Respondents and allowed by Justice Hollins with negligible, and still improper, exception.

39. At several points during the enhanced costs proceeding, Justice Hollins tried to pressure and bully the Appellant to dispense with her right to have sufficient time to prepare for the enhanced costs proceedings. At one point Justice Hollins made the egregious statement that she was trying to give the Appellant a costs decision to appeal from. This is an egregious acknowledgment that Justice Hollins intended to make an unfair costs decision that would need to be appealed:

[AB – Tab 7, p. 75, lines 29-30]

29 THE COURT: Well, I’m trying to give you a costs award to

30 appeal from, so that’s why I need you to -- to give me your position on costs

40. Justice Hollins’ Costs and Recusal Decisions suggest the Appellant agreed to the timeline for the enhanced costs proceeding. This is misleading. The March 27, 2019 case management meeting transcript [Appellant Extracts Vol 2 – Tab 3] shows the Appellant had concerns with proceeding with a costs hearing in an expedited manner and without having the bill of costs yet. Justice Hollins told her at this March 27, 2019 case management meeting they would ensure the Appellant had enough time to prepare for, and respond to, the bill of costs and enhanced costs application. But when the Appellant advised Justice Hollins that she would not be able to properly deal with the application in the short timeframe given, upon briefly reviewing Mr. Mack’s costs materials containing egregiously misstated costs she received on April 15, 2019, Justice Hollins refused to allow the Appellant sufficient time to prepare for, and respond to, the enhanced costs application [Appellant Extracts Vol 2 – Tab 5 – Appellant April 25, 2019 Affidavit].

41. The Costs Decision makes a costs award for a lump sum, at double costs, column 2, as requested by the Respondents, which is clearly excessive and out of the ordinary for an action at the pleadings stage. Further, Justice Hollins’ suggestion that claims made were not proven is egregious. At no time did Justice Hollins make “findings” of “fact or truth” for the claims which she falsely suggested was done in her attempt to justify the improper costs award. This is an egregious distortion of facts. The applications were for amendments and striking and Justice Hollins made no findings in “fact or truth” as the Striking/Amendments Decision shows, nor could she as these were not summary judgment or trial proceedings and amendments and striking applications are instead based on pleadings. Further, the Striking/Amendments Decision is completely void of truthful analysis of the facts pleaded and the extensive evidence in the Appellant’s June 5, 2018 affidavit.

42. It is further concerning that Justice Hollins falsely stated in the Costs Decision that the Respondents’ application was for “dismissal”, and further falsely stated in the Recusal Decision that the Respondents’ application was for “summary judgment.”. The Respondents’ application was not for either dismissal or summary judgment, but for striking as the Amendments/Striking Decision clearly shows. Justice Hollins falsely stated the types of application the Respondents made in an effort to bolster her costs judgment clearly out of the ordinary and excessive for a striking application which only examines pleadings, and for which the Respondents had no evidence whatsoever. Justice Hollins refused to make corrections to her Costs Decision and it was necessary for the Appellant to write to the Chief Justice on May 8, 2019 in order to have a corrigendum issued to the Recusal Decision to remove Justice Hollins’ false statement that the Respondents had a summary judgment application [Appellant Extracts – Tab 6 – Appellant June 25, 2019 Affidavit, p. A422].

43. As with Justice Hollins’ other decisions in this matter, the Costs Decision fails to give sufficient reasons for the costs award. The costs reasons are vague, do not accord with jurisprudence, and lack citation of any relevant case authority. For example, at para. 7, Justice Hollins stated the Respondents “picked Column 2” from the Whidden malpractice action column costs and even acknowledged this is “arbitrary” but states that “for different reasons” (which she fails to elaborate on) she is “content” to award Column 2 costs. A judge can not award significant costs based on a costs column in a different lawsuit which she outright admits is an arbitrary method, and for which she fails to state her reasons.

Brief history of the proceedings

44. The action against the Respondents Burnett and Gowlings with action no. 1301-03943 was commenced on March 28, 2013.

45. The Respondent Burnett was removed from the Whidden action in May 2013 due to misconduct.

46. In the Whidden action, the Appellant was successful in defeating the Whidden Defendant’s summary judgment application, with reasons issued by the Court on August 1, 2013 reported at Carbone v. Whidden, 2013 ABQB 434. The Appellant approached the trial in a position of overall success.

47. The Appellant’s application for amendments in action no. 1301-03943 against the Respondent Burnett and the Respondent Gowlings was filed on December 13, 2013. The application sought to add additional particulars of wrongdoing and to name Megan McMahon as a defendant.

48. The Respondents unreasonably and repeatedly delayed and adjourned the Appellant’s applications for amendments from December 2013 to March 2014, and then again to December 2014, so that their judge of choice, Justice Earl Wilson, could hear the applications [Appellant Extracts].

49. The unreasonable delays of the Respondents necessitated a separate action against the Respondent McMahon, with Action No. 1401-00821, filed on January 22, 2014.

50. On March 24, 2014, the amendments application was adjourned again at the Respondents’ request because the Respondents had judge shopped for Justice Wilson to be the case management judge and only wanted Justice Wilson to hear the amendments application.

51. The Appellant has filed further proposed amendments to add new claims against the Respondents due to new events of wrongdoing coming to light over time and to add further particulars.

52. The May 2014 Whidden Action trial was scheduled by Justice Wilson at the unilateral request of the within Respondent McMahon contrary to the trial readiness rules of court which require that trial readiness of both parties be accommodated. Prior to the trial of the action, the Respondent McMahon used a variety of ambush techniques on the self-represented Appellant with intention to thwart justice, including failing to serve an expert report until just before the trial contrary to the rules of court, failing to serve exhibits to the Appellant before trial in effort to prevent her from being prepared, among many other acts of misconduct relating to trial, which is not the subject of the within action against the Respondent McMahon. In a great travesty of justice, trial judge Justice Charlene S. Anderson:

(a) Unfairly refused the Appellant 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 Appellant suffered resulted from the surgery by Dr. Peter Whidden which caused the Appellant to undergo multiple corrective surgeries; (b) Unfairly refused the Appellant 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 to 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 and was repeatedly impeached on cross-examination; (d) Misstated the evidence of the Whidden Defendant “expert” B.C. Dr. Denis Morris who admitted under cross-examination that his expert report was erroneous and contained hearsay; and (e) failed to uphold the self-represented Appellant’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 within actions against the Respondents McMahon, Burnett and Gowlings and are provided here for the purpose of context.

53. The Whidden action is still in progress within the channels of the Canadian court system.

54. In the Whidden action, on June 19, 2014 the Respondent McMahon prepared and personally signed a fraudulent bill of costs with intent to fraudulently deceive the Court. The Court relied on the Respondent McMahon’s false and untrue statements as an officer of the Court and based upon these representations a costs judgment was fraudulently procured in the amount of approximately $150,000. The fraudulent bill of costs prepared by the Respondents McMahon, Burnett and Gowlings, among other issues, egregiously claimed costs for applications for which the Appellant was the successful party, application costs which were reversed in the Appellant’s favour, costs for applications which the Respondent was not awarded any costs, costs for fabricated applications and application dates that do not exist, and duplicated costs items. The costs fraudulently claimed by the Respondents are extensive and highly particularized in the Appellant’s proposed amended statements of claim [Appellant Extracts Vol 2 – Tab 2, subtabs 1 & 2] and June 5, 2018 affidavit [Appellant Extracts Vol 1 – Tab 1].

55. The Appellant requested, both prior to the trial costs hearing in 2014 and prior to the trial costs appeal in 2015, that the Respondents provide her with supporting documentation, receipts, and court orders to substantiate their bill of costs. Despite the Appellant’s requests for this information on multiple occasions the Respondents failed to provide it. The Respondents refused to provide the Appellant the supporting documentation, receipts and orders she requested because the Respondents knew that the bill of costs contained egregious fraudulent misrepresentations and could not be supported. The Respondent 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 Respondent McMahon made further false representations orally with the intent to deceive the Court and procure a fraudulent costs judgment. When the Appellant said she wanted to respond to the representations of the Respondent McMahon, Justice Charlene Anderson refused to allow the Appellant 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.

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 Respondent McMahon as an officer of the court who is expected to act with honesty and integrity before the court. The Respondents also refused to provide supporting documentation for their bill of costs prior to the related appeal, advising: "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." [Appellant Extracts Vol 1 – Tab 1]. As a result of the Respondents’ refusal to provide the Appellant 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. It is important to note that even if the specific costs items had been dealt with in the Whidden Action, this would not obviate the right of the Appellant to bring proceedings concerning the Respondents’ fraudulent misrepresentations and fraud upon the Court which caused the Appellant damages.

56. The facts concerning the Respondents’ applications, and other behaviour, with extreme abuse of process, collateral attacks, and malicious conduct, all dismissed by the Court, in both the Whidden action and the within actions are extensive. See the Appellant’s proposed amended statements of claim [Appellant Extracts Vol 2 – Tab 2, subtabs 1 & 2] and June 5, 2018 affidavit [Appellant Extracts Vol 1].

57. On October 10, 2014, nearly two years after the Appellant commenced litigation, and one year after the Appellant filed her original application to amend her statement of claim, the Respondents filed an application for striking.

58. There was no hearing before Justice Wilson until December 4, 2014 due to the Respondents’ insistence on waiting until Justice Wilson was available. On December 4, 2014 an order was made for the hearing of the Appellant’s application for recusal of Justice Wilson, the Appellant’s application for statement of claim amendments, and the Respondents’ application for striking.

59. Justice Wilson was removed from the within actions on January 28, 2015 on grounds of judge shopping by the Respondents, conflict of interest, and bias. The Chief Justice advised the parties by letter of Justice Wilson’s removal due to a conflict.

60. A second case management judge was appointed but he recused himself on his own motion on February 3, 2015 due to a conflict he identified involving a relative of one of the Respondents.

61. Justice Nixon was assigned as the third case management judge on February 18, 2015. At the first case management meeting before him on May 7, 2015 it was learned that opposing counsel for the Respondents, Mr. Mack, was recently Justice Nixon’s personal lawyer in unrelated matters, raising issues of conflict of interest.

62. The first case management meeting before Justice Nixon was held on May 7, 2015. At that time, the date for the Appellant’s applications for his recusal and her amendments, and the Respondents’ application for striking (filed long after the Appellant filed her application for statement of claim amendments) were ordered to be heard at a date to be determined.

63. The Appellant filed a Notice of Appeal on June 29, 2015 on issues of the sequence of hearing applications, and the recusal and striking application being heard together. On a related motion, this Court issued decision, Carbone v McMahon, 2015 ABCA 263, giving guidance on the hearing of the applications.

64. After numerous reschedulings of the applications by Justice Nixon, the applications for recusal, amendments and striking finally proceeded on February 21, 2017. Justice Nixon refused recusal and reserved judgment on the amendments and striking applications.

65. The Appellant filed an appeal of Justice Nixon’s refused recusal and was successful. In the decision Carbone v McMahon, this Honourable Court ruled Justice Nixon did not give sufficient disclosure of his recent retainer with opposing Respondents’ counsel Mr. Mack to enable informed recusal proceedings and meaningful appellate review, with the further concern that Justice Nixon did not hear the application for his recusal until two years after the Appellant brought that application. This Court urged the Chief Justice of the Court of Queen’s Bench to assign a new case management judge.

66. Associate Chief Justice Rooke assigned Justice Michele H. Hollins to this case by letter dated November 28, 2017.

67. Despite the urgency to move this action forward Justice Hollins issued the Amendments/Striking Decision on February 14, 2019 with corrigendum (still containing errors [Appellant Extracts Vol 2 – Tab 4, Exhibit “M”]) on February 19, 2019, 15 months after she was assigned as case management judge. The decision, replete with errors and dishonest assertions, dismissed the Appellant’s application for claim amendments and allowed the Respondents’ application for striking.

PART 2 – GROUNDS OF APPEAL

The applications for amendments and striking

68. Justice Hollins failed to apply the proper legal test on the amendments application.

69. Justice Hollins failed to apply the proper legal test on the striking application.

70. Justice Hollins failed to give even cursory analysis of the Appellant’s existing and proposed pleadings and evidence.

71. Justice Hollins failed to give sufficient reasons for meaningful appellate review.

72. Justice Hollins failed to apprehend material aspects of the record.

73. Justice Hollins failed to identify and apply the test for malicious, dishonest, deliberate, and abusive conduct by lawyers as articulated in the Supreme Court of Canada decision Quebec (Director of Criminal and Penal Prosecutions) v Jodoin, 2017 SCC 26.

74. Justice Hollins failed to adjudicate the Appellant’s application for amendments before the application for striking, and without a valid reason.

75. Justice Hollins failed to state and failed to apply the correct legal test for intrusion upon seclusion.

76. Justice Hollins erred in jurisdiction when she adjudicated a breach of privacy issue which is not a common law tort and can not be dealt with at the Court of Queen’s Bench as a court/tribunal of first instance. Justice Hollins hijacked the Appellant’s Personal Information Protection Act (PIPA) complaint governed by the Office of the Information and Privacy Commissioner of Alberta (OIPC).

77. Justice Hollins failed to analyze and failed to give weight to the Appellant’s evidence for intrusion upon seclusion, which shows the Respondents’ own words that they pulled the Appellant’s credit report because they had a security for costs application (dismissed by the Court), which is not a valid, nor lawful, reason to obtain an opposing party’s credit report.

78. Justice Hollins breached procedural fairness by failing to allow the Appellant to amend her statement of claims before striking them.

79. Justice Hollins erred in stating the Appellant’s pleadings are only for intrusion upon seclusion and defamation, and failed to recognize the Appellant’s other new cause of action of fraud and other particulars in amendments.

The application for recusal

80. Justice Hollins committed an error of law by failing to follow and apply this Honourable Court’s precedent concerning reasonable apprehension of bias in Carbone v. McMahon, 2017 ABCA 384.

81. Justice Hollins failed to apply the correct test for reasonable apprehension of bias.

82. Justice Hollins failed to make the necessary disclosures for her conflicts of interest and further failed to make disclosures on the record and at the outset of proceedings.

83. Justice Hollins failed to consider the facts, circumstances and evidence for the recusal application.

84. Justice Hollins distorted the facts when she failed to state that the December 5, 2017 letter from the Court/Justice Hollins states “In the result, Justice Hollins will continue as Case Management Justice (CMJ) in these actions, and I will entertain no more correspondence on the subject.”

85. Justice Hollins distorted the facts when she failed to state that at the same time of her assignment as case management judge in November 2017, Respondents’ counsel Mr. Mack disclosed by letter dated December 1, 2017 that Justice Hollins is currently Director of the Canadian Bar Foundation and Canadian Bar Law for the Future Fund, organizations which the Respondent Gowlings legally represents.

86. Justice Hollins breached procedural fairness when she refused to allow the Appellant opportunity to speak to, and remedy, the conflicts of interest prior to adjudicating applications.

87. Justice Hollins’ words and actions give rise to reasonable apprehension of bias.

88. Justice Hollins denied the Appellant procedural fairness when she restricted the Appellant to an insufficient four business days to prepare for and respond to the Respondents’ application for enhanced costs.

89. Justice Hollins acknowledged that her costs decision would be unfair when she told the Appellant “I’m trying to give you a costs award to appeal.”

The application for costs

90. Justice Hollins’ costs decision significantly departs from the normal rules on costs and fails to give sufficient reasons for meaningful appellate review.

91. Relating to the appeal ground for recusal, Justice Hollins denied the Appellant procedural fairness when she restricted the Appellant to an insufficient four business days to prepare for and respond to the Respondents’ application for enhanced costs.

92. Relating to the appeal ground for recusal, Justice Hollins acknowledged that her costs decision would be unfair when she told the Appellant “I’m trying to give you a costs award to appeal.”

PART 3 – STANDARD OF REVIEW

93. All issues in this appeal deal with errors of law, either direct errors of law or errors raising questions of law that are extricable from the factual issues. Accordingly, the grounds of appeal have a standard of review of correctness.

94. The standard of review on a question of law is correctness: Housen v. Nikolaisen, 2002 SCC 33 at para. 8.

95. Both the failure to properly apply a legal test and the failure to recognize an important legal principle are errors raising questions of law that are extricable from the factual issues. A question of law that is extricable from the factual issues is reviewable on the standard of correctness: Housen v. Nikolaisen, 2002 SCC 33 at para. 27.

96. Identification of the legal test to apply in considering amendments to pleadings is a question of law reviewable on a correctness standard: Canadian Natural Resources Limited v Arcelormittal Tubular Products Roman S.A., 2013 ABCA 87

97. On an appeal from a decision to strike pleadings because they are an abuse of process, the standard of review is correctness as the interpretation of pleadings is a question of law: Dixon v Canada (Attorney General), 2012 ABCA 316 (CanLII) at para 7.

98. “Whether a pleading discloses a cause of action is a question of law reviewable on a correctness standard.”: Grenon v Canada Revenue Agency, 2017 ABCA 96

99. Adequacy of reasons and analysis has a standard of review of correctness: Spinks v. Alberta (Law Enforcement Review Board), 2011 ABCA 162 at paras 17 and 15.

100. “The question of whether a new cause of action was raised is, of course, not essentially a matter of discretion, but rather one of law.”: Wells Cartage Ltd. v. Goodyear Aerospace Corp., 1987 CanLII 2625 (BCCA)

101. Questions of jurisdiction are questions of law and reviewed on the standard of correctness: Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235.

102. “Allegations of apprehension of bias and breaches of procedural fairness are reviewable on the correctness standard”: Trigg v. Lee-Knight, 2009 ABCA 224.

103. Questions that appear discretionary, including for costs, can actually be questions of law. In British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, the Court stated “the criteria for the exercise of a judicial discretion are legal criteria, and their definition as well as a failure to apply them or a misapplication of them raise questions of law which are subject to appellate review.”

104. The definition of the legal test in determining whether there is issue estoppel creating an abuse of process is a question of law. The standard of review is correctness.

105. If any of the issues have a standard of review of reasonableness, jurisprudence holds that to ensure justice is not denied, the appellate court is entitled to interfere with a decision of a chambers judge in circumstances where the judge erred in failing to give weight to something he ought to have taken into account: Starr v. Houg Cement Ltd., 1980 ABCA 31 at para. 11

PART 4 – ARGUMENT

106. In Spinks v. Alberta (Law Enforcement Review Board), 2011 ABCA 162 this Honourable Court stated that sufficient reasons are mandatory and that mere conclusions do not meet the test for adequate reasons. Adequacy of reasons has a standard of review of correctness. An appeal can be allowed on the basis of inadequate reasons. At para. 17 this Court stated:

As a matter of basic principles, a deferential standard of review by the Court of Appeal would make little sense, especially when the impugned reasons do not say why they omit a topic. If the reasons in question omit entirely a vital topic or a necessary step, or do not even mention an important flaw in the conclusion which they reach, what is there to defer to?...It is well settled that what is mandatory is sufficient reasons, not mere conclusions. Lengthy beautiful writing and long detailed recitals count for nothing, if a vital element is absent.

107. In the present case, Justice Hollins entirely failed to acknowledge, or truthfully state, the Appellant’s pleadings, evidence and arguments. Justice Hollins purposefully omitted vital topics and elements, such as the highly particularized pleadings and facts outlining the Respondents’ fraud, fraud upon the court, abuse of process and collateral attacks, supported by affidavit evidence, and the Appellant’s well-pleaded facts on intrusion upon seclusion with supporting affidavit evidence, while the Respondents admitted they have no evidence. Justice Hollins further failed to give sufficient reasons, and factual and truthful analysis, for the Recusal Decision to enable meaningful appellate review.

108. A judge must consider a litigant’s arguments. In Tran v Kerr, 2014 ABCA 350, this Court found that the judge failed to consider a litigant’s arguments. At para. 16 this Court stated the obligation of a judge to consider arguments: “All litigants are entitled to have their arguments considered, even if the trial judge suspects that the argument will ultimately be unsuccessful.” There is no indication from Justice Hollins’ Amendments/Striking decision that she gave any consideration to the Appellant’s oral submissions or thorough brief submissions of 48 pages [Appellant Extracts].

109. With respect to amending pleadings, Rule 3.65 of the Alberta Rules of Court states:

(1) Subject to subrule (5), before or after close of pleadings, the Court may give permission to amend a pleading.

110. This Court stated in Balm v. 3512061 Canada Ltd, 2003 ABCA 98 that the threshold for amendments is low and that generally any pleading can be amended no matter how careless or late the party is in seeking to amend and that only a very modest amount of evidence is needed. The Court also noted the danger in requiring a stiff standard to amend which would have the effect of summary judgment in favour of the defendant without requiring the defendant to have evidence. The Court stated:

One must recall that the original statement of claim here needed no evidence at all, and that any plaintiff can always issue a new statement of claim if the limitation period has not expired. Lack of a factual basis is ordinarily not a ground to strike out a pleading, so long as it alleges facts which (if true) would have given a cause of action (or defence).And a plaintiff with two statements of claim could likely then have the two suits consolidated or tried together.

And it is desirable that the amendments in parallel suits be similar; that is a ground not to deny the amendments in one suit.

All of these analogies confirm the authorities above which say that a modest degree of evidence justifies an amendment to pleadings within the limitation period. And the analogies show that requiring a stiffer test to amend would be pointless, producing little or no practical result. To require a stiffer standard for evidence to amend would produce a motion for summary judgment in favour of the defendant, without requiring that the defendant swear to anything. That is contrary to all principle. And attempts to argue or apply a stiffer test have delayed this suit for a year and a half.

111. In Hatch v. Kelly Peters & Assoc. Ltd., 1988 CanLII 3111 (BC CA), the British Columbia Court of Appeal affirmed that similar amendments in parallel actions against the same defendants should be allowed, which the present Appellant has attempted to do with her parallel actions. The Court stated:

In my view, under those principles, the judge in chambers in this case ought to have allowed the amendments sought and there is a further consideration, that when identical or practically identical amendments were sought in a parallel action against the same defendants I believe the judge was really bound to allow amendments in this case or to express reasons why he refused to do what his colleague judge did. I would allow the appeal and give leave for the amendments which were disallowed by the chambers judge.

112. In Tran v. University of Western Ontario, 2015 ONCA 295, the Ontario Court of Appeal found the motion judge erred by failing to grant leave to amend prior to hearing an application for striking. Citing South Holly Holdings Ltd. v. The Toronto-Dominion Bank, 2007 ONCA 456, the court stated that “leave to amend should be denied only in the clearest of cases.” The court referred to South Holly Holdings Ltd. at para. 6:

A litigant’s pleading should not lightly be struck without leave to amend. To the contrary, leave to amend should be denied only in the clearest of cases. This is particularly so where the deficiencies in the pleading may be cured by an appropriate amendment…

113. Justice Hollins failed to follow and apply the guidance and authorities cited in this Honourable Court’s earlier decision in this case Carbone v McMahon, 2015 ABCA 263, with respect to the general procedure and order for amendments and striking applications, and opportunity to make amendments. Further, this decision was cited by Goodswimmer v Canada (Attorney General), 2017 ABCA 365, which states at para 17 “Where an application to strike a pleading is brought together with an application to amend that pleading, it is usually fair and efficient to consider the amendment application first.”

114. Justice Hollins failed to apply the above legal principles for allowing amendments, failed to give meaningful reasons for denying the amendments, failed to perform even cursory analysis of the amended pleadings, and further failed to acknowledge the Appellant’s extensive June 5, 2018 evidence in support of the amendments.

115. The authorities are clear that an application to strike has a very high burden and that it must be "plain and obvious" that the pleadings or claims should be struck out. The Respondents must prove the Appellant’s action was bound to fail. If there is a chance that the Plaintiff might succeed, then the Plaintiff should not be "driven from the judgment seat.": Alberta Rules of Court, Rule. 3.68; Hunt v. Carey [1990] 2 SCR 959 at paras 32-33.

116. In Hunt v. Carey, [1990] 2 SCR 959 at para. 33, the Supreme Court of Canada articulated the very high onus a defendant faces on a motion to strike as “Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case.”

117. The Supreme Court of Canada reaffirmed the “plain and obvious” test for an application for striking in Ernst v. Alberta Energy Regulator, 2017 SCC 1. At paras. 148 and 68, the Court cited the test it earlier set out in R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45:

A claim “will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action” (R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17; see also Rule 3.68 of the Alberta Rules of Court, Alta. Reg. 124/2010).

Imperial Tobacco Canada Limited also stated at para. 21:

Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed… The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in McAlister (Donoghue) v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

118. Justice Hollins failed to properly apply the above legal principles for striking and failed to analyze the Appellant’s pleadings. The Appellant’s pleadings and claims are proper and sufficiently pleaded, and supported by jurisprudence and evidence. Justice Hollins did not give valid reasons for allowing the Respondents’ striking application.

119. Justice Hollins also failed to apply the Statement of Principles on Self-represented Litigants endorsed by the Supreme Court of Canada in Pintea v Johns, 2017 SCC 23, which requires that judges do everything possible to prevent an unfair hearing to a self-represented person, including allowing opportunity for self-represented plaintiffs to amend pleadings to cure any deficiencies in their case.

120. In denying the Appellant her application to amend her statements of claim and allowing the Respondents’ application to strike, Justice Hollins erred in allowing and applying all five of the following types of critiques of pleadings which are forbidden by the Supreme Court of Canada, as cited by this Honourable Court in United Petroleum Distributors (Calgary) v. 548311 Alberta Ltd., 1998 ABCA 121 at paras. 19 and 21:

With the greatest of respect, it seems to us that the attacks made by the respondents here amount to (a) matters of defense, not to lack of arguable cause of action, or (b) difficult contentious questions of the law of torts and various branches of equity, or (c) mere criticisms of pleading easily remedied by amendment, or (d) lack of precision caused by the necessary ignorance of the plaintiff as to the precise mechanisms of the frauds alleged, or (e) looking at “facts” outside the face of the pleading impugned. A host of cases forbid doing any of those things, including the Supreme Court in Carey Can., supra and this Court in Cerny v. C.I.L. 1972 CanLII 976 (AB CA), [1972] 6 W.W.R. 88 (Alta CA).

For those reasons, we cannot support any of the attacks on the statement of claim or lis pendens. We allow the appeal in total. And we allow the amendments to the statement of claim prayed for, and reinstate the lis pendens.

121. In Decock v. Alberta, 2000 ABCA 122 this Court cited Cerny v. Canadian Industries Ltd., 1972 CanLII 976 ABCA and the Alberta Civil Procedure Handbook (Edmonton: Juriliber, 1998) in asserting that pleadings should not be struck lightly as being (a) an abuse of process, (b) disclosing no cause of action; or (c) vexatious, frivolous or abuse of process, and that a plaintiff can still plead anything arguably relevant and it should not be struck out except in the clearest of cases. At paras 61 and 62 this Court stated:

It is clear from these decisions that a court should not strike out a pleading or part thereof as disclosing no cause of action or as being frivolous or vexatious or as being an abuse of the process of the court, which in most cases would have the effect of dismissing an action or denying a party a right to defend, unless the question is beyond doubt and there is no reasonable cause of action.......

This power of the court certainly should not be exercised to strike out a pleading or to strike out a party from an action where there is a serious point of law to be considered which cannot be said to be clear. How can such a pleading be an abuse of the process of the court or frivolous or vexatious? See also: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 and Canada Deposit Insurance Corp. v. Prisco (1994), 1994 CanLII 9185 (AB QB), 158 A.R. 305 (Q.B.) at 309‑310.

[R]arely is there a fatal flaw which falls within R.129. There are some rare types of abuse of process discussed below, falling under para. (d) of R. 129(1). Even if a motion to strike out a pleading is based on its being frivolous, vexatious, embarrassing or an abuse of process, rather than on absence of a cause of action, nevertheless the plaintiff can still plead anything arguably relevant, and the court should still be cautious and only strike out in a clear case.

...

The Supreme Court of Canada and all other courts in the country have said repeatedly that a pleading cannot be struck out if there is the faintest chance that it may succeed at trial. Furthermore, no one seems to notice the words "or amended" in line 2 of R. 129(1). If the pleading impugned will not hold water as it is, the court is not to discard it, if it can patch it up enough to hold some water. R. 129 is merely permissive, and never requires the court to strike out.

122. 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 Respondents McMahon, Burnett and Gowlings. The Supreme Court further affirmed that even if there is collateral attack, which is not present in the within actions, 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.

123. 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 Appellant’s actions are rooted in the Respondents McMahon, Burnett and Gowlings' fraud and dishonesty and Justice Hollins erred in striking them. The Supreme Court stated:

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.

124. 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…

125. In Hill v Hill, 2016 ABCA 49 at para. 29, this Court cited Supreme Court ruling in holding that an exception to res judicata is where a judgment is obtained through fraud:

One special circumstance that can operate as an exception to res judicata is where a judgment is obtained through fraud. Another is the discovery of new evidence, not available at trial, that impeaches the result of the case. These are narrow exceptions with very high degrees of proof required to ensure that relitigation will be permitted only in rare circumstances. As noted by LeBel J, relitigation is available only where necessary to enhance the credibility, effectiveness and integrity of the administration of justice: Toronto(City) v CUPE, Local 79, 2003 SCC 63 (CanLII) at para 52, [2003] 3 SCR 77 [CUPE].

126. The authorities are clear that courts can use their inherent jurisdiction to deal with serious lawyer wrongdoing. Very recent case law further shows the importance, and even necessity, of sanctioning serious lawyer abuse of process and other wrongdoing. Justice Hollins erred in failing to apply the legal tests and principles from these authorities.

127. In the recent decision 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. The Supreme Court stated:

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.

128. Justice Hollins failed to acknowledge this important decision heavily relied upon by the Appellant and further failed to do any analysis of the Appellant’s well-pleaded facts and supporting evidence which show there is no question that the Respondents McMahon and Burnett demonstrated an ongoing pattern of unfounded and vexatious proceedings denoting serious abuse of the judicial system and dishonest, malicious conduct that is deliberate.

129. Citing Jodoin, the recent decisions 1985 Sawridge Trust v Alberta (Public Trustee), 2017 ABQB 530 and 1985 Sawridge Trust v Alberta (Public Trustee), 2018 ABQB 213 state that litigation abuse by lawyers must be actioned and that it is the Court’s inherent jurisdiction to punish lawyers for this misconduct. At paras. 50 and 31, respectively, of these decisions, 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.

It is critical that this Court continue to disapprove of abusive litigation, changing positions, and re-arguing settled issues.

130. In the recent decision 1985 Sawridge Trust v Alberta (Public Trustee), 2019 ABCA 243 this Honourable Court confirmed the test set out in Jodoin for litigation by lawyers that is abuse of process or dishonest, malicious and deliberate, warranting punishment by the Court. It should be noted that the facts concerning the lawyer’s conduct in Sawridge are distinguished from the facts in the present case in which the Respondents McMahon and Burnett dishonestly, maliciously, and deliberately brought the same applications for vexatious declaration and security for costs, filled with misrepresentations, despite that they were already dismissed by the Court. Further, the Respondents brought a contempt of court application for costs with malicious intent and misrepresentations, also dismissed by the Court, despite that 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.

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

132. Justice Hollins’ statement at paragraph 26 of the Amendments/Striking Decision that there are no particular facts pleaded for the claims of the Respondents’ misconduct which would support a cause of action is a blatant dishonest distortion of the record. A judge can not refuse to analyze the pleadings, facts and particulars and then make a blanket statement that there are no particular pleaded facts supporting a cause of action. The Appellant pleaded extremely precise and lengthy facts concerning the Respondents’ misconduct with respect to the Respondents’ fraud, malice, abuse of process, collateral attacks and other serious misconduct [Appellant Extracts Vol 2 – Tab 2, subtabs 1 & 2], and relied on extensive binding jurisprudence for the causes of action, and provided supporting affidavit evidence.

133. In Kent v Martin, 2018 ABCA 202, this Honourable Court overturned the lower court’s costs decision as it found the trial judge erred and improperly reduced the plaintiff’s costs award because the plaintiff, while self-represented, asserted claims of opposing lawyer wrongdoing including fraud. In the present case, Justice Hollins improperly stated the costs award for the Respondents should be considerably higher because the Appellant alleged fraud and other wrongdoing by the Respondents despite that the proceedings before Justice Hollins were for amendments and striking applications, not trial or summary judgment and, as such, Justice Hollins did not and could not make any finding concerning fraud. Justice Hollins did not even acknowledge the Appellant’s evidence of the Respondents’ fraud [Appellant Extracts Vol 1 – Tab 1] which is further verifiable with the court record. As earlier stated, Justice Hollins’ statement at para. 23 of the Amendments/Striking Decision is absolutely false in purporting that the Appellant calls the costs award fraudulent simply because the Respondents failed to provide supporting information to her.

134. On the matter of fraud committed by lawyers, in Lawrence v. Peel Regional Police Force, 2005 CanLII 3934 (ON CA), 250 D.L.R. (4th) 287, [2005] O.J. No.604 (C.A.) at para. 6, the Ontario Court of Appeal 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.

Also in Lawrence, at para. 5:

If the facts as pleaded are capable of supporting a claim in law, the pleading should not be struck merely because the pleader has failed to attach the appropriate legal label to the facts.

69. In Hillier v. Hutchens, [2012] O.J. No. 6367, 2012 ONSC 5988 (CanLII), 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 stated:

[26] I agree that the statement of claim is deficient to the extent that it fails to identify with the necessary specificity the false statements made by Meisels to advance the alleged fraud. I do not agree that Meisels position as a lawyer acting for Hutchens insulates him from a claim of fraud.

[27] These defendants acknowledge that the statement of claim alleges that the impugned representations were made with the intention that they would be acted upon by the plaintiffs but contend that this requirement of fraud cannot be met where the representation is made by opposing counsel because a lawyer owes no duty to an opposing party. That proposition is accepted with respect to allegations of negligent conduct, however, it does not extend to intentional torts. As is stated by Sharpe, J.A. in Lawrence v. Peel Regional Police Force, 2005 CanLII 3934 (ON CA), 250 D.L.R. (4th) 287, [2005] O.J. No.604 (C.A.) at para. 6

... intentional torts, unlike negligence, are not defeated by the rule that a lawyer owes no duty to the opposite party in litigation.

[28] Fraud is defined in Black’s Law Dictionary, 7^th ed. as “a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.” The substance of the allegations against Meisels that can be garnered from the statement of claim are that Meisels knowingly misled the plaintiffs in order to assist Hutchens and Tanya in an unlawful scheme to benefit themselves at the expense of the plaintiffs.

[29] I am satisfied that the statement of claim does disclose a reasonable cause of action in fraud or deceit against Meisels but fails to do so with sufficient particularity to meet the requirement of Rule 25.06(8). I am not, however, prepared to strike the pleading at this time without affording the plaintiffs an opportunity to correct this defect and comply with the Rules. The plaintiffs are accordingly granted leave to amend the original statement of claim to include full particulars as to what was done and said by whom, to whom, when and in what context. Those particulars should identify the representations made by Meisels that the plaintiffs acted upon and the details of the damages sustained as a result of that reliance. Those amendments must be made within 30 days.

[30] In paragraphs 76 and 77 of the statement of claim, quoted in paragraph 20 of these reasons, the plaintiffs take issue with Meisels’ conduct as counsel for Hutchens on an ex parte injunction application. It is clear that absolute privilege usually applies to counsel’s conduct in judicial proceedings for a number of sound policy reasons: see Royal Bank of Canada v. Tehrani, [2009] O.J. No. 3153 (S.C.) at paras. 18 and 19. The exception is where malice and bad faith are properly pleaded: see Law Society of Alberta v. Krieger et al, 2002 SCC 65 (CanLII), [2002] 3 S.C.R. 372, 168 C.C.C. (3d) 97 at para 51.

[31] I am satisfied on a generous reading of the pleadings that malice and bad faith are implicit in the allegations in paragraphs 76 and 77 which include the assertion that Meisels knew Hutchens was a “fraud artist” and that Meisels was a participant in the fraud. 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. [Emphasis added.]

135. In a recent case similar to the present case, Khan v. Krylov & Company LLP, 2017 ONCA 625, issued July 26, 2017, the Ontario Court of Appeal 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. Justice Hollins erred in her analysis of Khan when she attempted to differentiate it from the present case. The Appellant in Khan asserted that the lawyers who committed fraud were both the opposing lawyers and his own lawyers. Asserting that his own lawyers were involved in fraud does not negate the fact that the claim for fraud was also against the opposing lawyers, as in the present case. Further, both cases do indeed deal with fraud concerning conduct relating to awards of money arising from litigation.

136. In Galand Estate v. Stewart, 1992 ABCA 334, this Court cited the Supreme Court in Hunt v. T & N 1990 CanLII 90 (SCC) at 358-59 in asserting that a claim should not be struck if there is an evolution or a trend of recent decisions suggesting the law is moving toward supporting a claim. The Appellant’s claims of serious opposing lawyer wrongdoing are supported by the recent trend of jurisprudence supporting claims against opposing lawyers and the Court’s inherent jurisdiction to punish them for serious transgressions.

137. In Templanza v Wolfman, 2016 ABCA 1 at para. 20, this Honourable Court stated that a trial is required where a summary record cannot fairly be used to decide legal issues which are unsettled, complex or intertwined with the facts, and that this principle is set out in the seminal case Hryniak v. Mauldin, 2014 SCC 7. There is no question that the present case deals with unsettled issues, including the developing area of law of intrusion upon seclusion. Justice Hollins erred in failing to apply this principle to the present case where an application for striking has an even higher bar to meet than summary judgment.

138. The Appellant’s claims of intrusion upon seclusion is a developing area of law. A striking application is not the appropriate mechanism for deciding on an issue in a developing area of law, let alone adjudicating an issue at an amendments/striking application where facts pleaded must be accepted as true.

139. In Reynolds v. Kingston (Police Services Board), 2007 ONCA 166 the Ontario Court of Appeal ruled that:

These cases stand for the proposition that at the interlocutory stage of proceedings the court should not dispose of matters of law that are not fully settled in the jurisprudence. Such issues should be decided at trial on the basis of a full evidentiary record.

140. In Araya v. Nevsun Resources Ltd., 2017 BCCA 401, the British Columbia Court of Appeal upheld a lower court’s ruling declining to strike out the claims. The Court concluded at para. 197 that because the area of law is “in flux” and “developing” it was not “plain and obvious” that the claims were bound to fail. This affirmed the lower court’s ruling (2016 BCSC 1856) that “[t]he current state of the law in this area remains unsettled” and that, therefore, it was not established that the claims had no likelihood of success and the substantive issues would be determined at trial.

141. Mr. Mack acknowledged at the June 28, 2018 amendments/striking proceedings that intrusion upon seclusion is a developing area of law: “I mean intrusion upon seclusion is developing tort” [AB – Tab 6, p. 53, line 28].

142. Jurisprudence is also clear that matters under jurisdiction of legislated bodies must be adjudicated by those legislated bodies and not by a court. This principle of deference expressed in the Supreme Court of Canada decision Dunsmuir is sound. The Court described deference as a “requirement” to show “respectful attention” to the reasons supporting an administrative decision. The Court identified that the proper starting point for judicial review is the content of the administrative decision itself. The Court has held that deference does not allow courts to “reformulate a tribunal’s decision in a way that casts aside an unreasonable chain of analysis in favour of the court’s own rationale.” Accordingly, Justice Hollins erred in jurisdiction in attempting to adjudicate the within Appellant’s breach of privacy matter involving OIPC processes and PIPA legislation.

143. Justice Hollins erred with respect to intrusion upon seclusion when she allowed the Respondents to make an improper and newly fabricated defence argument and without evidence, which is not allowed for amendments and striking applications which are based on pleadings. Justice Hollins also failed to mention the OIPC decision referenced above in the Appellant’s favour, and failed to analyze the Appellant’s evidence showing the Respondents’ own words are that they obtained the Appellant’s credit report for a security for costs application (dismissed by the Court), which is not a lawful reason to pull an opposing party’s credit report with sensitive credit and financial information. Justice Hollins failed to apply and articulate the legal test elements for intrusion upon seclusion articulated in Jones v. Tsige, 2012 ONCA 32. The Appellant’s pleadings met all of the elements for this test.

144. The test for reasonable apprehension of bias and the importance of impartiality in our justice system is set out in the Supreme Court of Canada decision Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLIl), [2003] 2 S.C.R. 259 at paras. 57, 58 and 59.

145. Also in the Wewaykum decision, the Supreme Court laid out four potential indices of bias at paragraph 77. Any one of these areas found to be raising a reasonable apprehension of bias warrants disqualification of the judge. Justice Hollins is in conflicts of interest raising reasonable apprehension of bias in three of these four areas. The facts and evidence are overwhelming that Justice Hollins erred in failing to recuse herself. The four areas for recusal identified in the Wewaykum decision are:

(i) financial or personal interest of the decision maker;

(ii) present or past link with a party, counsel or judge;

(iii) earlier participation in or knowledge of the litigation; or

(iv) expression of views and activities.

In the present case there exists reasonable apprehension of bias in indices 1, 2 and 4; that is:

(i) financial or personal interest of the decision maker;

(ii) present or past link with a party, counsel or judge;

(iv) expression of views and activities.

146. The Canadian Judicial Council Ethical Principles for Judges “Conflicts of Interest” section makes these statements:

It can be concluded that a judge should disclose on the record anything which might

support a plausible argument in favour of disqualification.

…

The Hon. J.O.Wilson in A Book for Judges, for example, says a judge’s disqualification would be justified by a pecuniary interest in the outcome; a close family, personal or professional relationship with a litigant, counsel or witness; or the judge having expressed views evidencing bias regarding a litigant.

With respect to the judge’s former law partners, or associates and former clients, the traditional approach is to use a ‘cooling off period’, often established by local tradition at 2, 3 or 5 years and in any event at least as long as there is any indebtedness between the firm and the judge.

Judges should disqualify themselves in any case in which they believe that a reasonable, fair minded and informed person would have a reasoned suspicion of conflict between a judge’s personal interest (or that of a judge’s immediate family or close friends or associates) and a judge’s duty.

147. This Honourable Court has given clear direction for disclosure of potential conflicts of interest in the decision in this same case, Carbone v. McMahon, 2017 ABCA 384. Justice Hollins blatantly disregarded this decision. This decision is highly relevant to the present conflicts of interest involving Justice Hollins. Justice Hollins has failed to disclose serious conflicts of interest on the record and denied the Appellant her right to inquire as to the conflicts of interest. Justice Hollins also disregarded this binding law despite that it resulted in the previous case management judge being removed from this case.

148. In Carbone this Court made the following statements concerning judicial disclosure requirements where there are potential conflicts of interest. This Court stated at paras. 30, 32, 102, 106, 109 and 125:

A judge must disclose on the record to the parties information that might cause the objective observer to conclude that the judge may not be impartial. Disclosure must provide the parties with sufficient information to allow them to determine whether to ask the judge to recuse him or herself and, if necessary, an appeal court reviewing the original judge’s decision on the recusal application to discharge its appellate function. This disclosure, in the context of a former solicitor-client relationship between the judge and counsel for the nonmoving party, must precisely describe who the client is, the services counsel provided to the judge, when counsel provided the services and at what cost, when counsel provided a statement of account, did counsel discount the fees for any reason, when did the judge pay the account, and how likely is it that the judge will utilize the services of counsel again.

Justice Nixon did not provide the necessary disclosure that would allow either Ms. Carbone or this Court to characterize the retainer as minor or nonminor. We do not know enough about the services Mr. Mack provided. And we know nothing about what the cost of the services was. The disclosure was not sufficient to allow a lawyer cognizant of the need to have compelling reasons to file a recusal application to properly assess the merits of a recusal application. Nor was it detailed enough to allow us to assess the case management judge’s decision dismissing the recusal application.

Suppose that a judge hearing a constitutional challenge to provincial legislation that deprives persons who are charged with an alcohol-related driving crime of their driver’s licences for a stipulated period of time is a member of the board of directors of Mothers Against Drunk Drivers. MADD’s mission “is to stop impaired driving” and it promotes a legislative agenda to achieve that end. Neither case law nor statements made by the Canadian Judicial Council or its Commonwealth counterparts provide any support for the view that the judge need not disclose this relationship. These sources clearly lead to the conclusion that disclosure is necessary. The Supreme Court of Canada’s judgment in Yukon Francophone School Board v. Yukon Territory provides ample support for the conclusion that the judge’s relationship with MADD may cause an objective observer to question the impartiality of the trial judge and must be disclosed. So does the Canadian Judicial Council’s Ethical Principles for Judges: “Judges should avoid involvement in causes or organizations that are likely to be engaged in litigation”. This determination triggers the judge’s obligation to disclose his role as a MADD director and the goals and strategies of MADD.

The judge should ensure that the [disclosure] minute contains sufficient information … to enable the parties to decide whether to make a recusal application. It is undesirable for parties to be placed in the position of having to seek further information from the judge.

The disclosure should provide enough information to allow an appeal court to rationally assess the reasons given by the original court for its resolution of the recusal application. If a judge has any doubts about the relevance of a fact it should be disclosed.

In short, the information gap is so extensive that I am unable to determine whether this retainer was a minor or nonminor matter. If it was a minor matter, Justice Nixon’s impartiality would not be questioned by the notional observer. If it was a nonminor matter, the opposite may have been the case.

149. Justice Hollins did not provide this necessary disclosure concerning any of the three conflicts of interest identified in the facts above, and did not provide any details whatsoever on the record. There are significant information gaps which do not allow for meaningful appellate review. This is further hindered by Justice Hollins’ distortion of the facts in her decision.

150. Other courts of appeal have also ruled that it is the responsibility of judges and not counsel or litigants to raise matters of potential conflicts of interest and, further, that judges must disclose potential conflicts of interest on the record, meaning in open court and forming part of the record of the proceedings. The Newfoundland Court of Appeal stated in Barrett v. Glynn, 2001 CanLII 32731 (NL CA), 2001 NFCA 70, 207 Nfld. & P.E.I.R. 213:

It was the responsibility of the trial judge, not that of legal counsel, to raise the matter of his familiarity with the case and his connection with the immediate vendor and the conveyance of the property in question. A “cooling off period” of up to 5 years, or any number of years, did not and could not erase or abrogate his former association, partnership with Mr. O’Dea while in the practice of law, and his participation, as minor as it was, in the sale and conveyance of the property. As long as this circumstance existed, there was a burden to disclose the association and involvement. With respect, the circumstances of this case required full disclosure. The trial judge had a measure of identification with Mr. O’Dea, the law partnership, and the actual conveyance of the property that was not possible to overlook; it necessitated an acknowledgment at the commencement of the proceedings. In the situation existing it was not possible to surmise or take it for granted that counsel and their clients were cognizant about the trial judge’s status or position and thus able to infer a waiver or consent from their silence. There was no disclosure followed by a waiver or a consent to continue. A disclosure and discussion between the bench and bar should have been in open court, in front of the litigant, and have formed a part of the record of the trial.

151. A reasonable person would conclude that Justice Hollins is in serious conflicts of interest. These conflicts of interest are current or occur in the recent past without sufficient passage of time. A reasonably informed bystander could reasonably perceive bias. Justice Hollins’ failure to make disclosure on the record and failure to allow for inquiry of the conflicts of interest further raises apprehension of bias.

152. With respect to the geographic location of Gowlings, which should be irrelevant, the following case law and principles are applicable.

153. Respondents’ counsel Mr. Mack stated in his December 1, 2017 correspondence that the Gowlings Ottawa office represents the CBF and the LFF. The geographic difference of Gowlings’ Ottawa and Calgary offices and whether lawyers in these locations share information or services should not be a factor, but if there was any question about the potential relevancy of the distance between these locations and information sharing, fortunately the Court of Appeal of New Brunswick has already answered it. In the decision Saint John Shipbuilding Ltd. v. Bow Valley Husky (Bermuda) Ltd., 2002 NBCA 41, the Court found that Gowlings failed to take measures to avoid a conflict of interest and that the geographic distance of its Calgary and Ottawa offices was irrelevant. The Court stated at paras 40 & 64:

Gowlings cannot successfully plead ignorance of the facts by way of defence to the conflict of interest…As for the distance between Gowlings’ Calgary and Ottawa offices, it is, by itself, of no significance.

In furtherance of the Court’s finding that Gowlings’ separate office locations were irrelevant to information sharing, at para. 64 the Court cited the decisions Skye Properties v. Wu (2001), 2001 CanLII 28075 (ON SC), and Cartledge (Litigation Guardian of) v. Brown (1998), 1998 CanLII 14696 (ON SC).

Skye Properties v. Wu (2001), 2001 CanLII 28075 (ON SC) states:

The plaintiffs moved to remove Gowlings and in turn Armstrong Dunne as solicitors of record for the investors in the defendant limited partnership on the basis of a conflict of interest…Such physical separation as would be present in an interprovincial law firm is not a sufficient substitute for an ethical wall.

Cartledge (Litigation Guardian of) v. Brown (1998), 1998 CanLII 14696 (ON SC) states:

There is no evidence that the offices function autonomously, but even if they did, mere separation of law offices of the same firm, even where the two offices are in different cities, has been held to be insufficient.

154. In Bailey v. Barbour, 2012 ONCA 325, the Ontario Court of Appeal ruled there was a conflict of interest raising reasonable apprehension of bias with respect to “multiplicity of involvements,” including the judge’s wife’s connections having knowledge about the parties to the dispute. The Court also found that the judge failed to weigh the submissions carefully and contextually and did not take into account all relevant circumstances. The Court accordingly ordered a new trial before a different judge and stated it would not be necessary to consider the other issues raised on appeal. At para. 25 the Court articulated the importance for a judge to carefully consider all circumstances when a party cites reasonable apprehension of bias:

Whenever a party takes the position that a reasonable apprehension of bias exists, the judge must weigh the submission carefully and contextually, taking account of all relevant circumstances. The trial judge did not follow that course in this case. Had he done so, he would have given greater consideration to his wife’s involvement in the narrative, and he would not have concluded that the appellant’s claim for disqualification was based only on “a general sense of unease” falling “well short of the threshold that justifies the order sought.”

155. The requirement that all relevant circumstances be known and taken into account referred to in Bailey are absent in the present appeal of Justice Hollins’ Recusal Decision. The decision in light of the submissions, facts and evidence shows that Justice Hollins failed to perform this important weighing of submissions carefully and contextually, in consideration of all relevant circumstances. This includes she failed to acknowledge the circumstances of the conflicts of interest she was in, as identified in the facts section above.

156. In Nazarewycz v. Dool, 2009 ABCA 70 at paras 76 and 77 this Court set aside the order of a chambers judge and ordered his removal due to reasonable apprehension of bias determined by his words and actions.

157. Justice Hollins’ words and actions clearly raised an apprehension of bias. This includes that she denied the Appellant procedural fairness by refusing to allow the Appellant more than four business days to prepare for, and respond to, the Respondents’ enhanced costs application, and other breaches of procedural fairness such as insisting the self-represented Appellant be prepared for an overwhelming five applications in one month’s time until the Appellant wrote to the Chief Justice with her concerns [Appellant Extracts Vol 2 – Appellant Affidavits], and denying the Appellant opportunity to remedy conflicts of interest prior to Justice Hollins’ hearing the amendments and striking applications.

158. In a recent Ontario Court of Appeal decision, R. v. Ibrahim, 2019 ONCA 631, at para. 101, in particular, the Court contemplated that court audio may assist in appellate review of a judge's deportment giving rise to reasonable apprehension of bias. Other Courts of Appeal have also commented that it may be difficult to discern a judge’s tone based on a transcript alone: Commission scolaire francophone du Yukon no. 23 v. Yukon (Procureure générale), 2014 YKCA 4 at para. 152.

159. Justice Hollins’ tone during much of the recusal and costs proceedings on April 26, 2019 was unacceptably hostile, defensive and derisive toward the Appellant. At times Justice Hollins heavily raised her voice, shrieked and growled. Some of these instances of judicial incivility can be heard in the Court audio [Appellant Extracts -Tab 7 ; Factum Appendix A].

160. Further, during part of the Appellant’s oral submissions on recusal a persistent banging sound can be heard in the background. This is the sound of Justice Hollins slamming a thick stack of papers over and over on the bench desk in front of her, as if to drown out the sound of the Appellant’s submissions she did not want to hear. The sight of a judge slamming papers during a party’s oral submissions is bizarre, to say the least.

161. These instances of judicial incivility are not acceptable judicial decorum and do not present an environment conducive to civil proceedings. A judge must maintain composure at all times as her behaviour will form the opinion of our system of justice: R. v. Ibrahim, 2019 ONCA 631 at paras 109 and 114.

162. In the Supreme Court of Canada decision Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, the Supreme Court found that denying a party opportunity to file a reply on enhanced costs with items claimed the party could not have expected gave rise to reasonable apprehension of bias. Similarly, Justice Hollins denied the Appellant this procedural fairness for the enhanced costs application with the same circumstances.

Moreover, the trial judge’s refusal to allow the Yukon to file a reply on costs is highly problematic in the overall context of the trial. After the release of his reasons on the merits, the trial judge required each party to file their costs submissions on the same day. To the Yukon’s surprise, the Board sought not only solicitor-client costs, but also punitive damages and solicitor-client costs retroactive to 2002. The trial judge’s refusal to allow the Yukon to file a reply factum is questionable, particularly in light of the fact that the Yukon could not have known the quantum of costs sought by the Board at the time it filed its factum. The judge’s refusal is made all the more worrisome by his decision to award a lump-sum payment to the Board, in addition to retroactive costs. All of these incidents, taken together and viewed in their context, would lead a reasonable and informed person to see the trial judge’s conduct as giving rise to a reasonable apprehension of bias.

163. In Wagg v. Canada, 2003 FCA 303, the Federal Court of Appeal stated the importance of balancing resolving matters expeditiously and adjudicating in a fair and principled manner, which Justice Hollins failed to do. At para. 61:

…Trial judges have a responsibility, particularly when dealing with unrepresented litigants, to strike a balance between the desire to resolve matters expeditiously, and the need to adjudicate cases in a principled manner that employs a fair process and preserves the appearance of justice.

164. Justice Hollins clearly misdirected herself in allowing the Respondents’ bill of costs. The costs allowed are excessive and out of the ordinary and do not take into account the significant issues of overstated costs outlined above at paragraph 38. Further, the application was for striking, at the early pleadings stage, which does not result in making “findings” of “fact or truth”, and it is egregious that Justice Hollins dishonestly stated the application was instead for dismissal and summary judgment. Thus, Justice Hollins violated the principles in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 that “the criteria for the exercise of a judicial discretion are legal criteria, and their definition as well as a failure to apply them or a misapplication of them raise questions of law which are subject to appellate review.”

PART 5 – RELIEF SOUGHT

165. In the context of all of the forgoing, it is respectfully submitted that the appeal be allowed, and the amendments/striking order, order declining recusal, and costs order be set aside.

166. It is further submitted that the Court of Queen’s Bench should assign a new case management judge.

167. The Appellant should be awarded her costs of the within appeal.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this ___ day of October, 2019.

Estimate of time required for the oral argument: 45 minutes. Given the factum space limitation for this appeal which deals with three decisions, the Appellant requests additional time for oral argument if the panel permits.