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?
4
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.
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, 7th 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.
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.
