Click here to read the Notice of Appeal filed March 13, 2019.
Below is the description of issues section contained in the Notice of Appeal. The plaintiff's appeal factum will be posted on this blog when available.
Update: Click here to read the second Notice of Appeal filed June 6, 2019 for Justice Hollins' errors on the recusal and costs applications.
Click here to read the plaintiff's appeal factum.
The Appellant/Plaintiff appeals from the decision of Justice Michele H. Hollins dismissing the Appellant's application for statement of claim amendments and striking the claims against the Respondents/Defendants Megan McMahon, Taryn Burnett and Gowling Lafleur Henderson LLP ("Gowlings").
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 and the Canadian Bar Law for the Future Fund, of which Justice Hollins is identified as Director. Counsel for the Respondents, Perry Mack, advised of this relationship by letter dated December 1, 2017 at the time of Justice Hollins' appointment as case management judge to this case. In addition to this significant conflict of interest, there are further potential conflicts of interest which Justice Hollins failed to disclose.
Justice Hollins' failure to make sufficient disclosure and permit resolution of the reasonable apprehension of bias is a significant rejection of Alberta Court of Appeal decision in this same case, Carbone v. McMahon, 2017 ABCA 384, which sets out disclosure requirements by judges. Justice Hollins' rejection of this binding appellate law is further remarkable given that her appointment was made following this decision removing the prior case management judge.
The additional issues on appeal include that Justice Michele Hollins:
- Failed to identify and apply the proper legal tests for applications on amendments and striking, both of which are based on pleadings.
- Failed to properly apprehend material aspects of the record.
- Failed to give even basic analysis to the Appellant's existing claims, proposed amendments, the Appellant's evidence in her affidavit dated June 5, 2018, argument and authorities.
- Erred in stating the amendments were only for the new claims of defamation and intrusion upon seclusion.
- Erred in finding that the amendments sought are not for the purpose of clarifying or bolstering the existing claims, and erred in finding that the amendments sought were only to introduce new causes of action.
- Erred in finding there was no impact in dealing with the existing claims first and then examining the proposed amendments.
- Erred in finding the claims dealt with alleged breaches of duty by opposing lawyers to the opposite party, for which there is no basis in the claims.
- Failed to recognize that malicious conduct and abuse of process by opposing lawyers is actionable by litigation when warranted, as in this case of the Respondents' extreme wrongdoing, and that appellate jurisprudence provides for this remedy.
- 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.
- Omitted the Appellant's claims of the Respondents' most serious malicious and abusive wrongdoing and misstated that the procedural matters, which were provided in the claims for context,were somehow the basis of much of the claims.
- Failed to state that all of the Respondents' numerous malicious and abusive applications filled with false allegations were dismissed by the court in the Appellant's favour.
- Misstated that the Appellant's claims of the Respondents' fraudulent conduct were based solely on the Respondents' failure to provide information to the Appellant.
- Failed to make any mention whatsoever that the Appellant's claims of the Respondents' fraud are based on their fraudulent misrepresentation of the bill of costs and their perpetration of fraud upon the court in procuring a fraudulent costs judgment amounting to nearly $150,000.
- Failed to state that the Appellant's affidavit evidence and pleaded facts show that the Respondents refused to provide supporting documentation for their fraudulently misrepresented bill of costs despite multiple requests by the Appellant.
- Failed to make any mention whatsoever that the Appellant's proposed amendments of the Respondents' fraud consist of highly particularized claimed costs items including for, among other issues, applications for which the Appellant was the successful party, application costs which were reversed in the Appellant's favour, costs for applications which the Respondents were not awarded any costs, costs for fabricated applications and application dates that do not exist, and duplicated costs items.
- Erred in describing the Appellant's claims concerning the Respondents' fraudulently procured costs judgment to be merely concerns of "misapprehension of the proper and relevant evidence."
- Failed to recognize that a judge who fails to accurately and transparently state the true nature of claims of fraud against lawyers, which are highly particularized in the Appellant's proposed amended pleadings in the public domain, puts the administration of justice into disrepute.
- Erred in finding that it was somehow permissible for the Respondents to bring abusive, vexatious and malicious applications filled with falsehoods. These applications include two vexatious declaration applications, a contempt application on a prohibited ground of costs, and three security for costs applications, ALL of which were dismissed by the court in the Appellant's favour. Justice Hollins failed to mention the Respondents' second vexatious declaration application, dismissed by the court, and the contempt application on the prohibited ground of costs, also dismissed by the court.
- Erred in stating that a motion in itself can not be malicious in a legal sense.
- Erred in stating that the Appellant's claims are somehow an attempt to re-litigate, when in fact there is no such need for the Appellant to re-litigate given the Appellant was already successful in defeating every single malicious and abusive application brought by the Respondents, and now seeks to recover damages, which has not been dealt with to date.
- Erred in stating the Appellant's litigation is grounded in dissatisfaction with the outcome of the Whidden action, when in fact the Appellant filed the claims against the Respondents McMahon, Burnett and Gowlings before the trial took place and while the Appellant was in a position of overall success, having defeated the Whidden application for summary judgment. It bears mentioning that the Whidden medical malpractice action is still in progress within the channels of the Canadian court system.
- Failed in finding that "every single complaint" of the Appellant relates to the disposition of the claims against Dr. Peter Whidden.
- Failed to consider or apply appellate jurisprudence holding that similar matters can be litigated where the first proceeding is tainted by fraud and dishonesty, where issues have not been directly determined, or where there are different causes of action (e.g. Danyluk v. Ainsworth Technologies, 2001 see 44; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 SCR 77, 2003 SCC 63).
- Erred in finding that the Appellant's claims against the Respondents with respect to their abuse of process and collateral attacks on decisions of the court dismissing the Respondents applications, are somehow the collateral attack and abuse of process. Once again, Justice Hollins makes this type of assertion without any analysis of the facts pleaded and the Appellant's extensive evidence. It is the Respondents who made collateral attacks in abuse of process by bringing the same applications multiple times despite already being dismissed by the court, including two dismissed vexatious declaration applications and three dismissed security for costs applications.
- Erred in somehow adjudicating a privacy breach matter on an amendments application, which is an egregious and significant error in law as adjudicating a claim on an application based on pleadings is prohibited. Breach of privacy is related to the Appellant's proposed amendments for the cause of action of intrusion upon seclusion, a developing area of common law, concerning the Respondents' unlawful obtaining of the Appellant's credit report without her consent. Even if adjudicating a claim on an amendments application were permitted, which it is not, the facts pleaded and the evidence are clear that the Respondents themselves stated they obtained the Appellant's credit report simply because they had a security for costs application (which was dismissed by the court), which is an unreasonable excuse to obtain a credit report. Justice Hollins further erred in law by allowing the Respondents to make a defence on these proposed amended pleadings, and for which they gave no evidence. In addition. Justice Hollins, once again, made no reference to the evidence in the Appellant's affidavit of June 5, 2018 showing that the Respondents' own words are that they obtained the Appellant's credit report because they had a security for costs application, which has nothing to do with the Respondents' later fabricated defence of unpaid costs which is only stated in opposing counsel's brief and can not be accepted as evidence. Further, Justice Hollins erred by failing to make any mention whatsoever of decision # 003172 of the Alberta Office of the Information and Privacy Commissioner (OIPC) which ordered the Respondent Gowlings to respond to the Appellant's access request for records containing, and relating to, her credit and financial personal information, and another OIPC decision finding that the Respondent Gowlings failed to recognize a "real risk of significant harm" caused by their actions toward the Appellant in a related matter.
- Erred in jurisdiction by somehow adjudicating a breach of privacy matter, which can not be adjudicated at the Court of Queen's Bench as court/tribunal of first instance. Breach of privacy is not a cause of action in common law; intrusion upon seclusion is a related cause of action in common law and is a subset of breach of privacy. Breach of privacy is instead governed by privacy legislation, including the Personal Information Protection Act (PIPA), and adjudicated by the OIPC, the process through which Justice Hollins knew the Appellant was in the process of making a privacy complaint against Gowlings, further to OIPC decision # 003172. Justice Hollins essentially hijacked the Appellant's PlPA complaint regarding the Respondents' breach of privacy legislation. Justice Hollins further erred in misstating and applying other legislation.
- Failed to recognize the distinction between breach of privacy, which is not a cause of action in common law, and the cause of action of intrusion upon seclusion, which is a developing tort in common law.
- Failed to recognize or apply the test for the cause of action of intrusion upon seclusion as articulated in the decision Jones v. Tsige, 2012 ONCA 32.
- Erred in finding the Respondents' obtaining of the Appellant's sensitive credit and financial information, which was not lawful nor reasonable, "could not possibly be characterized as highly offensive." Further, there are clearly more reasonable, and lawful, means to obtain information without resorting to obtaining a credit report without consent.
- Failed to find that by virtue of the Respondents making a defence in their brief on the claim of intrusion upon seclusion, the Respondents acknowledged that the claim did indeed disclose a reasonable cause of action.
- Failed to recognize that her prohibited adjudication on the claims, without even analyzing the Appellant's evidence or having regard for the process of trial for full argument, is clear indication of Justice Hollins' sheer desperation to dispose of the Appellant's claims. All of Justice Hollins' rulings in the decision should be viewed through the same lens. Further, it is egregious that a judge would go to such lengths and put the credit information of citizens at risk in the process with her irresponsible ruling.
- Erred in stating the Appellant said she would give a basis for the defamation and conspiracy claims at a later date. The Appellant made no such statement, and she did indeed plead facts of the defamation and conspiracy, give evidence and provide the basis. Justice Hollins failed to provide opportunity to the Appellant to file further evidence, namely the defamatory instrument with the specific words of defamation, which the Appellant said she could file if necessary while keeping in mind that part of the relief she received in the settlement from Thomson Reuters would be negated and there was a confidential agreement.
- Failed to give an accurate summary of the relevant history in her "abbreviated procedural summary'', which is abbreviated to the point of omitting the most important events related to the Appellant's claims. Justice Hollins failed to correct by corrigendum the most significant errors in her abbreviated procedural summary. This includes the error which states an interim order was pending the hearing of summary judgment motions; in reality the order stated it was pending determination of whether the Respondent Burnett's application itself had merit. The malicious application was entirely dismissed, and the interim order vacated, when the Appellant, who was not able to attend and respond to the falsehoods of the application when the Respondent Burnett originally appeared ex-parte, filed evidence and made submissions as to the falsehoods. Despite that the Appellant advised Justice Hollins of the error and provided the related orders to her again for reference, Justice Hollins refused to correct the error.
- Failed to apply the principles of the Statement of Principles on Self-represented Litigants, endorsed by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23.
- Failed to give sufficient reasons for meaningful appellate review.
- Such further issues which shall be identified.
In the interests of the public and transparency, the Appellant's appeal materials 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.
