Continued: Application for Recusal of Justice Michele Hollins

The previous post in this blog referred to Justice Michele Hollins' unreasonable restriction of the plaintiff's written materials to five pages for her application seeking the recusal of Justice Hollins from this case (while not restricting the defendants' reply materials to any page length), and indicated that the plaintiff's full oral submissions for this application would appear in the next blog post. These oral submissions for the recusal application, argued on April 26, 2019, appear below.

It is significant that Justice Hollins' reasons refusing recusal did not reference the most significant facts and case law in the plaintiff's submissions and evidence, including the decision of the plaintiff's successful appeal earlier in this same case setting out disclosure requirements of judges where there is potential bias. Perhaps this is not surprising given the nature of Justice Hollins' serious conflicts of interest she refuses to acknowledge or accurately state, and her denial of procedural fairness to the plaintiff, as explained in the facts below.

The plaintiff's Notice of Appeal for the "errors" in Justice Hollins' decisions refusing recusal and on costs (a blog post on costs will follow shortly), will be posted on this blog. The Notice of Appeal of Justice Hollins' prior decision appears in this previous post.

Plaintiff's oral submissions for the application seeking the recusal of Justice Michele Hollins

This is the Plaintiff’s application seeking the recusal of Justice Michele Hollins from hearing any further applications in this case, including the enhanced costs application.

The materials the Plaintiff submitted for this application include her application for recusal filed April 17, 2019, her April 16, 2019 and April 25, 2019 affidavits, and brief submitted on April 24, 2019.

The present application for recusal concerns Justice Hollins’ serious conflicts of interest and denying the Plaintiff procedural fairness, which raise reasonable apprehension of bias. This application is intended to prevent further undue and irreparable harm to the Plaintiff’s case in subsequent applications, given that Justice Hollins’ conflicts of interest and apprehension of bias have already prejudiced the Plaintiff and put the administration of justice into disrepute.

The recusal application is not an opportunity for Justice Hollins to attempt to cure her failure to disclose conflicts of interest and her failure to allow for inquiry and remediation of them. Jurisprudence is clear that conflicts of interest and apprehension of bias can not be cured by a subsequent decision: Quattro Farms Ltd v County of Forty Mile No. 8, 2019 ABQB 135 citing Carbone v. McMahon, 2017 ABCA 384 and Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC).

The two main issues which raise apprehension of bias requiring Justice Hollins’ recusal are (1) the serious and substantial conflicts of interest, and (2) procedural unfairness.

Conflicts of Interest raising apprehension of bias

The Law

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:

[57] ... Simply put, public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so.

[58] The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open mind ....

[60] ... the apprehension of bias must be a reasonable one, held by reasonable and rightminded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."

The Supreme Court of Canada has said that the inquiry into a reasonable apprehension of bias is fact specific, which may include the nature of the issue to be decided. The nature of the issue in the present case is serious lawyer wrongdoing.

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. As will be shown in this application, Justice Hollins is in conflicts of interest and reasonable apprehension of bias in three of these four areas. The facts and evidence are overwhelming that Justice Hollins should 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.

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.

The Alberta Court of Appeal has given clear direction for disclosure of potential conflicts of interest in the decision in this same case, Carbone v. McMahon, 2017 ABCA 384. It is submitted that Justice Hollins has 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 Plaintiff 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. This was about Mr. Mack being the legal counsel of the previous case management judge. There are parallels in the present case with the Defendant Gowlings representing organizations of which Mr. Mack stated Justice Hollins is identified as Director at the time of her assignment to this case. This is just one of the conflicts of interest this current recusal application deals with.

In the decision Carbone v. McMahon, 2017 384 the Alberta Court of Appeal stated at para. 30:

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.

These are just a few details that are required for disclosure by judges. In the present conflicts of interest with Justice Hollins, there was no disclosure of this extent, and certainly not on the record.

Continuing with paragraph 32 of the decision:

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.

Justice Hollins did not provide this necessary disclosure regarding her conflicts of interest, and she did not provide any details whatsoever on the record. Justice Hollins further erred in refusing to allow the Plaintiff to inquire as to the conflicts of interest, through a letter dated December 5, 2017 stating that she would continue as case management judge and that the subject would not be entertained further.

At paragraph 102 of the same decision, regarding a judge’s requirements of disclosure of relationships with organizations, the Alberta Court of Appeal stated:

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.

Paragraph 104 and 113 state that “a judge’s disclosure obligation may be onerous.”

Paragraph 106 states in part in citing relevant case law:

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.

Paragraph 109 states:

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.

Paragraph 118 states:

Justice Nixon did not disclose sufficient information about Mr. Mack’s retainer.

Paragraph 125 states:

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.

Similarly, Justice Hollins did not disclose sufficient information about the conflicts of interest in the present case and there are significant information gaps. This can not be cured with a subsequent decision.

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.

It is clear that judges must disclose any potential conflicts of interest on the record. Justice Hollins did not meet this requirement. By way of background, defence counsel Mr. Mack advised by letter dated December 1, 2017 at the time of Justice Hollins’ appointment to this case that the Defendant Gowlings represents the Canadian Bar Foundation (CBF) and the Canadian Bar Law for the Future Fund (LFF) and that Justice Hollins is currently identified as a Director of these organizations. In reply to this issue raised, Justice Hollins and the Court told the Plaintiff by letter dated December 5, 2017 that Justice Hollins would continue as case management judge and that the subject of conflicts of interest would not be entertained further, denying the Plaintiff her right to inquire as to conflicts of interest. It should be noted that defence counsel Mr. Mack’s notion that the Plaintiff is somehow responsible for Justice Hollins’ failure to comply with disclosure requirements set out in this decision, which Justice Hollins had been provided with at the outset, is absurd.

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

These remarks and directions, without notice or opportunity for argument, gave rise to an appearance that he was predisposed against the appellant and his counsel, and had prejudged certain issues. 

It seems evident that the chambers judge had made up his mind and had determined to move forward with his judgment, including dealing with the matters that had never been raised and with respect to which counsel had no opportunity to make submissions.

In Steele v Alberta, 2014 ABQB 124 (CanLII), this Court asserted that a reasonable person could well have a reasoned suspicion as to the partiality of a judge who was, or even had been, in a business relationship with counsel appearing before him. At paras. 29 and 36:

Public confidence in the independence and impartiality of the judiciary is a matter of the utmost importance in our democracy. [Judges] must be individually and collectively free of bias, actual or perceived…A reasonable, fair minded and informed person could well have a reasoned suspicion as to the partiality of a judge who was, or even had been, a close friend or business associate with counsel appearing in front of him or her.

The public's perception of a judge's impartiality must always be maintained for the
administration of justice, even if there is no evidence of a bias or conflict of interest:
Bailey v. Barbour, 2012 ONCA 325

Public confidence in the justice system is dependent on the impartiality of judges in making decisions. Maintaining this confidence requires not only that a judge is in fact impartial, but that they are also perceived to be impartial:

It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done: The King v. Sussex Justices, Ex parte McCarthy, [1924] 1 KB 256

And with regards to the geographic location of Gowlings, which should be irrelevant, the following case law is applicable:

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.

Also on the subject of large law firms and conflict of interest, which ties into information sharing among large law firms – The large size of a law firm is irrelevant in the eyes of the Supreme Court of Canada. The Supreme Court has stated repeatedly that when it comes to conflicts of interest and large law firms the overriding concern is preserving the integrity of the justice system.

In the Supreme Court case of Martin v MacDonald Estate (Gray) [1990] S.C.R. 1235 about conflict of interest the Court stated that the size and growth of large firms can not be permitted to adversely affect the public’s confidence in the judicial system.  It emphasized that the most important and compelling [factor] is the preservation of the integrity of the justice system.

The Alberta Court of Appeal in Michel v. Lafrentz, 1992 ABCA 8 also stated that when it comes to conflicts of interest, the large size of a firm is not a factor and large law firms should not be accommodated because of their size, and that the priority is maintaining the public confidence in the legal profession’s integrity.

Justice Michele Hollins' Conflicts of Interest - The Facts

Conflict of Interest #1 – The Defendant Gowlings represents organizations of which Justice Hollins is identified as a Director at the same time she was assigned as case management judge in this case

The primary conflict of interest raising reasonable apprehension of bias is the relationship of the Defendant Gowlings representing the Canadian Bar Foundation and the Canadian Bar Law for the Future Fund, of which Justice Hollins is identified as Director at the time of her assignment as case management judge. Mr. Mack disclosed this information by letter dated December 1, 2017.

In disregard for the Court of Appeal’s decision in this same case, Carbone v. McMahon, 2017 ABCA 384, which sets out disclosure requirements of judges concerning potential bias, Justice Hollins failed to disclose serious conflicts of interest on the record and denied the Plaintiff her right to inquire as to the conflicts of interest.

The following facts are supported by evidence in the Plaintiff’s April 16, 2019 affidavit:

(a)   In correspondence dated December 1, 2017, at the time Justice Hollins was assigned as case management judge in this case, defence counsel Mr. Mack advised that the Defendant Gowlings represents the Canadian Bar Foundation and the Canadian Bar Law for the Future Fund, and that Justice Hollins is currently identified as a Director of these organizations. 

(b)   In reply correspondence dated December 5, 2017, Justice Hollins and the Court (Associate Chief Justice Rooke) provided some details about Justice Hollins’ involvement as Director with the Canadian Bar Association (CBA). The letter does not sufficiently address the conflict of interest raised, nor were such details provided on the record. 

(c)   Further, the December 5, 2017 correspondence made no mention of Justice Hollins’ Director position with the Canadian Bar Foundation (CBF) or the Canadian Bar Law for the Future Fund (LFF), the two organizations indicated in Mr. Mack’s December 1, 2017 correspondence as being the organizations of which Justice Hollins is identified as Director. The December 5, 2017 correspondence stated that Justice Hollins would continue as case management judge and that the subject would not be entertained further, denying the Plaintiff fair opportunity to inquire as to the conflict of interest. 

(d)   The CBA, CBF, and LFF are separate legal entities, each with different Board of Directors, Corporation Numbers, and Business Numbers, according to the Government of Canada Federal Corporation Information reports. The currently accessible reports are for April 2019, attached to the Plaintiff’s affidavit for the purpose of showing that they are separate legal entities, which is significant to the fact that Justice Hollins’ and the Court did not make any mention of the CBF or the LFF in their December 5, 2017 letter. For the relevant time period of when Justice Hollins was assigned to this case in November 2017, Mr. Mack’s December 1, 2017 letter stated that Justice Hollins is currently identified as Director of the CBF and LFF.

The Plaintiff raised the recusal application later because 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 happen by Justice Hollins hearing further subsequent applications, in light of the issue of reasonable apprehension of bias arising from Justice Hollins’ failure to disclose the conflicts of interest and her procedural unfairness.

Justice Hollins only now permit the Plaintiff to make a recusal application after she rendered an unfair decision disposing of the claims without regard to the Plaintiff’s pleadings, evidence and jurisprudence, and after the Plaintiff filed a Notice of Appeal.

A reasonable person would find that the relationship of the Defendant Gowlings representing the organizations the Canadian Bar Foundation and the Canadian Bar Law for the Future Fund, of which Justice Hollins is identified as director at the same time Justice Hollins was assigned as case management judge, predisposes Justice Hollins to close her mind and reach a result favouring the Defendant Gowlings.

Subsequent to the issue of Gowlings representing the organizations of which Mr. Mack said Justice Hollins is identified as director at the same time she was assigned as case management judge, the Plaintiff became aware of further conflicts of interest concerning Justice Hollins.

Conflict of Interest # 2 – Justice Hollins is a Council Member of the Canadian Bar Association

Another conflict of interest is that Justice Hollins is currently a Council Member of the Canadian Bar Association. Evidence of this is attached to the Plaintiff’s affidavit commissioned April 16, 2019. Justice Hollins did not disclose this conflict of interest. The Plaintiff only discovered this later, long after Justice Hollins was assigned case management judge. The Plaintiff’s evidence with CBA materials shows that Council Members have significant operational and strategic responsibilities. And to be clear for the record, Past President is an active position.

As indicated in evidence from CBA materials attached to the Plaintiff’s April 16 affidavit, the CBA states its agenda 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.”

A reasonable person would find that Justice Hollins’ connections with overarching operations of the CBA as Council Member, which is connected to the organizations the Defendant Gowlings represents, is a serious conflict of interest raising reasonable apprehension of bias.

Conflict of Interest # 3 – Justice Hollins is inextricably linked to activities, operations and strategies of the CBA and has been for more than a decade

Justice Hollins is currently inextricably linked to activities, operations and strategies of the CBA and has been for more than a decade. She did not disclose any of this. The Plaintiff only discovered this later, long after Justice Hollins was assigned as case management judge.

Justice Hollins’ Questionnaire for Judicial Appointment attached to the Plaintiff’s April 16, 2019 affidavit shows the details of her extensive and lengthy involvement with the Canadian Bar Association, including Director positions and other positions. There is also reference in there that some of these positions extend into 2017. And as mentioned, Justice Hollins is currently an active Council Member of the Canadian Bar Association.

The Questionnaire goes on for several pages about Justice Hollins’ involvement with the CBA, and to just briefly state a few examples from the hundred or so examples in there:

-          Canadian Bar Association (CBA) National President recently in 2014-2015

-          Until 2017, our National Board was comprised of 25 Directors, representing all geographical and interest-based sections of our 37,000 members. As President, I chaired all our in-person and telephone conference Board meetings (11 in total over the 2014-2015 year). In addition to the Directors, their respective Vice-Chairs/Vice-Presidents and their staff complement were usually also present, with standing to speak in most cases.

-          I have served on the CBA National Board of Directors on prior occasions as well; as a National Executive Officer (2012-present), as President, CBA Alberta Branch (2007-2008) and as Chair, National CBA Membership Committee (2000-2001)

-          As Past President in 2015-2016, I chaired the meetings of our National Council of approximately 230 delegates. I also worked on the CBA’s Integration Team and am currently (2016-2017) the Team Lead for one of the Transition Teams (Board, AGM and Leadership Forum) as the CBA moves towards its new governance structure in the next year.

Justice Hollins has been and continues to be, 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.”

Justice Hollins’ extensive connections to the CBA and ongoing involvement is all in the public domain. This includes Justice Hollins’ personal social media Twitter account, currently with nearly 300 occurrences of the word “CBA”, which is used extensively to promote the CBA agenda and lawyers. There are hundreds of more occurrences of the “CBA” in Justice Hollins’ deleted tweets also in the public domain, as indicated in the Plaintiff’s April 16, 2019 affidavit. 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 the defendant lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings.

Regarding Justice Hollins’ social media Twitter account, the Plaintiff’s materials attached to her April 16, 2019 affidavit show that the Chief Justice of the Supreme Court of Canada Richard Wagner does not approve of judges using social media. The March 31, 2019 National Post article states he does “not favour judges engaging on social media and potentially compromising their status as aloof from social and political debate.”

Also attached to the Plaintiff’s April 16, 2019 affidavit are materials from the Canadian Judicial Council showing that on March 7, 2019 the Canadian Judicial Council 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 one of those examples where a judge has entered into those risks and pitfalls. It promotes and markets the CBA agenda and lawyers excessively. In addition to the extensive tweets promoting the CBA agenda, in another troubling example not related to the CBA, Justice Hollins’ April 2, 2019 tweet retweets a recent Gowlings lawyer’s [Laurie L.’s] tweet with an expletive word, and Justice Hollins’ comment retweeting it says “Might be slightly exceeding my jurisdiction but…”. Exceeding jurisdiction happens to be one of the Plaintiff’s grounds of appeal stated in her Notice of Appeal filed March 13, 2019. Flippant remarks such as this whether intended in fun or not give rise to questions of Justice Hollins’ seriousness toward her duties, and fairness toward the within case, and do not reflect well on the judiciary as a whole.

A reasonable person would find that Justice Hollins’ inextricable, lengthy and ongoing connections with operations, policies, activities, and personal promotion of the CBA agenda and lawyers, and her extensive promotion of her personal views of the CBA agenda which again, is to be the essential ally and advocate for the legal profession, puts her in a serious conflict of interest raising apprehension of bias.

It is clear that Justice Hollins is committed to CBA operations, advancing its agenda, and its mandate of advocating for lawyers and their issues and being their voice, but the inextricable and ongoing involvement with the CBA, and her role as essential ally and advocate for the legal profession and activities to this end, and her role case managing the within case against lawyers and a law firm, are not compatible.

This is not to say that a judge should not be involved with the CBA, but Justice Hollins’ inextricable and ongoing connections with it should disqualify her from hearing any case where lawyers or a law firm are the defendant party, and the plaintiff party is not lawyers or a law firm.

Cooling off period requirement not met

It is significant that there was no sufficient passage of time or required “cooling off” period as defined by the Canadian Judicial Council Ethical Principles for Judges and case law for any of these extensive, lengthy and ongoing relationships and connections:

(1) Justice Hollins became case management judge of this case while she was currently a Director of the CBF and LFF, which the Defendant Gowlings legally represents;
(2) Justice Hollins is a Council Member of the CBA, a partner to the CBF and LFF, with significant operational and strategic oversight; and
(3) Justice Hollins is inextricably linked to the CBA and its mandate to be the essential ally and advocate of the legal profession, and activities and promotions to this end.

A reasonable person would find that Justice Hollins is in serious conflicts of interest giving rise to bias.

Procedural Unfairness raising apprehension of bias

The Law

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 costs gave rise to reasonable apprehension of bias:

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.

In Seminatore v. Banks, 2006 NBCA 110 the New Brunswick Court of Appeal stated at paras. 8 & 9 that failing to ensure a procedurally fair hearing, in addition to failing to accommodate a party on procedural matters while giving the same accommodation to the other party, raised the appearance of lack of impartiality:

Fundamental to any concept of procedural fairness must be a judicial duty to do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons…In this case, the trial judge failed to discharge that duty when she invited one of the self-represented parties to cross-examine the other party, but did not reciprocate with such an invitation when the party-witness roles were reversed. Thus, there is the appearance of a lack of impartiality. As well, the omission prevented Mr. Seminatore from having “a fair hearing.”  It was for these reasons that we allowed the appeal, set aside the trial judge’s decision and remitted the matter back to the Court of Queen’s Bench to set a date for a trial de novo.

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. 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.

In Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), the Supreme Court stated that fairness to the parties includes procedural fairness and, further, that reasonable apprehension of bias can not be cured by a subsequent decision:

The duty to act fairly includes the duty to provide procedural fairness to the parties…As I have stated, it is impossible to have a fair hearing or to have procedural fairness if a reasonable apprehension of bias has been established. If there has been a denial of a right to a fair hearing it cannot be cured by the tribunal's subsequent decision. A decision of a tribunal which denied the parties a fair hearing cannot be simply voidable and rendered valid as a result of the subsequent decision of the tribunal. Procedural fairness is an essential aspect of any hearing before a tribunal. The damage created by apprehension of bias cannot be remedied. The hearing, and any subsequent order resulting from it, is void.

The case Marchand v. Public General Hospital Society of Chatham, 2000 138 OAC

201, states at paragraph 140:

If the judge’s words or conduct give rise to a reasonable

apprehension of bias, it colours the entire trial and cannot be cured

by the correctness of the subsequent decision.

The Canadian Judicial Council’s Commentaries on Judicial Conduct states:

Long-standing tradition in Canada and in Great Britain is that a judge speaks but once on a given case and that is in the Reasons for Judgment. Thereafter, the judge is not free to explain, or defend, or comment upon the judgment or even to clarify that which critics have perceived to be ambiguous.

It would not be prudent for a judge to adjudicate further applications when a finding of apprehension of bias or success on a recusal application is imminent given that all decisions of the judge will be void and without effect. Carbone v. McMahon, 2017 ABCA 384 cites Supreme Court case law to this effect: “when a court of appeal determines that the trial judge was biased or demonstrated a reasonable apprehension of bias, that finding retroactively renders all the decisions and orders made during the trial void and without effect”: The Queen v. Curragh Inc., [1997] 1 S.C.R. 537, 544. See also United States v. Sampson, 148 F. Supp. 3d 75, 126 (D.Mass. 2015) (“Nor can a new [trial] schedule be established until the motion for my recusal is finally resolved”).

The Canadian Judicial Council's Statement of Principles on Self-represented Litigants endorsed by the Supreme Court of Canada in Pintea v Johns, 2017 SCC 23 requires that judges do everything possible to prevent an unfair hearing to a self-represented person, which Justice Hollins has failed to do.

The time Justice Hollins gave the Plaintiff to deal with the Defendants’ enhanced costs application is grossly insufficient

Justice Hollins failed to allow the Plaintiff 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 Plaintiff 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 Defendants did not provide a bill of costs, which egregiously misstates costs claimed, among other issues with it, until April 15, 2019. They could have provided it sooner but did not because they wanted to limit the time the Plaintiff had to respond to it as a sharp practice tactic.

The Plaintiff does not waive her right to procedural fairness and her right to have sufficient time to properly respond to the enhanced costs application. The Plaintiff needs sufficient time to obtain legal advice from a lawyer, obtain records from the court, and conduct legal research in order to properly respond to the application. She is not prepared to make any submissions on the costs application as she has advised Justice Hollins many times in correspondence and materials, referred to in her affidavit and other materials.

The Plaintiff has only had a brief opportunity to review some of the costs sought in the Defendants’ application. The costs the Defendants have claimed are egregious, including for things like applications that never took place, and even things like they want their money back for conduct money to attend a cross-examination, which is not refundable. And they say that they want double costs for everything they claim in their bill of costs for which they present no legal basis. They think they should simply arbitrarily have double costs on everything, including on applications that never took place. It is absolutely egregious and parallels some of the fraudulent misrepresentations the Defendants Megan McMahon, Taryn Burnett and Gowlings made in the bill of costs in the underlying medical malpractice lawsuit in which the Defendants fraudulently procured a costs judgment of $150,000. They now seek a further substantial sum using the same unethical and egregious methods.

Four business days is grossly inadequate for the self-represented Plaintiff to properly respond to the enhanced costs application. Most represented parties would also not be able to properly respond to the enhanced costs application with only four business days to prepare and respond.

Justice Hollins' prior procedural unfairness

Justice Hollins also previously denied the Plaintiff procedural fairness when she attempted to force her to deal with five applications in one month’s time. The Plaintiff wrote to Justice Hollins to advise that she could not be prepared for five applications in one month’s time. As shown in the Plaintiff’s affidavit evidence, Justice Hollins replied in correspondence dated March 19, 2019 that she “insists” that the five applications be heard in one month’s time and that if the Plaintiff was not available Justice Hollins would schedule the applications anyway. This schedule was not modified until the Plaintiff wrote a further letter to Justice Hollins and a letter to the Chief Justice (not to be confused with the Associate Chief Justice) with her concerns. Details of this issue are in the Plaintiff’s April 16, 2019 affidavit. Justice Hollins’ unreasonable timeframe of five applications to be dealt with in one month’s time was further unfair to the Plaintiff given that Justice Hollins refused to accommodate the Plaintiff’s schedule or allow her time to cross-examine the Defendants’ for an application despite that Justice Hollins scheduled the previous amendments and striking applications and related matters according to defence counsel Mr. Mack’s schedule and also invited him to cross-examine the Plaintiff. Again, the Plaintiff had to write a letter dated March 21, 2019 with these concerns to Justice Hollins and the Chief Justice to have this schedule changed, after Justice Hollins refused to accommodate the Plaintiff’s schedule and ability to deal with five applications in one month’s time.

Justice Hollins’ unfair restriction on the Plaintiff’s materials

Justice Hollins also restricted the page length of the Plaintiff’s brief to five pages while not stating any page length restriction for the Defendants’ materials. Further, the Defendants filed 58 pages of materials to reply to the recusal application and did not send their materials to the Plaintiff until the afternoon of April 24, 2019 two days before this recusal application and, as a result, she did not have opportunity to fully review the Defendants’ 58 pages of materials before this hearing. The Plaintiff sent a letter dated April 25, 2019 to Justice Hollins about this which was ignored.

Justice Hollins’ further denial of procedural fairness

Justice Hollins further denied the Plaintiff procedural fairness by, as referred to previously, denying her the right to inquire as to the details of Justice Hollins’ conflicts of interest, when Justice Hollins and the Court stopped her from making further inquiry as to the conflict of interest of the Defendant Gowlings representing the Canadian Bar Foundation and the Canadian Bar Law for the Future Fund. The December 5, 2017 letter from Justice Hollins and the Court states that Justice Hollins will continue as case management judge and the subject would not be entertained further.

Further, Justice Hollins originally agreed to hear the recusal application before any further applications but then in subsequent correspondence on April 17, 2019 she stated she would hear the Defendants’ application for enhanced costs regardless of the recusal application outcome. This correspondence is in the Plaintiff’s April 25, 2019 affidavit. This also shows that Justice Hollins is predisposed to deny the recusal application and proceed with the enhanced costs application.

Further details of the procedural unfairness, and additional examples, are in the Plaintiff’s April 16, 2019 and April 25, 2019 affidavits.

A reasonable person would find that Justice Hollins denied the Plaintiff procedural fairness giving rise to reasonable apprehension of bias

Conclusion

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 raises further apprehension of bias.

Justice Hollins denied the Plaintiff procedural fairness in preparing for, and replying to, the Defendants’ application for enhanced costs, among the other examples of serious procedural unfairness raised during this application. The denial of procedural fairness gives rise to further reasonable apprehension of bias.

The conflicts of interest, and denial of procedural fairness, favour the Defendants.

Justice Hollins has demonstrated in words and actions the appearance that she is predisposed to continue to act in the Defendants’ favour. Justice Hollins should not hear further applications.

The continuation of Justice Hollins as case management judge would put the administration of justice into further disrepute. The appropriate remedy is immediate recusal.