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

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

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

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

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

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

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

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

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

• Application to file amended factum
• Memorandum of Argument
• Reply to Respondents' adjournment application

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INTRODUCTION AND RELIEF SOUGHT

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

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

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

THE FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE LAW AND ARGUMENT

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

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

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

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

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

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

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

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

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

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