Some of the issues in this complaint involve Ms. Baptiste's refusal to honour her prior directions for the plaintiff to file her amended appeal materials, including her amended factum (which contains critical additional facts, case law and argument for her upcoming appeal) and her amended list of authorities. This significantly prejudices the plaintiff's right to a fair appeal.
Despite that the plaintiff met the deadline of October 1, 2019 set by Ms. Baptiste to file the amended factum, Ms. Baptiste unfairly refused to file it at the request of opposing defendants' counsel Perry Mack as part of his and the Defendant lawyers Megan McMahon, Taryn Burnett and Gowlings' ongoing scorched earth tactics.
Click here to read the plaintiff's application filed November 14, 2019 which sets out many of the issues with Ms. Baptiste's unfair refusal to file her amended factum despite that the plaintiff submitted it on the deadline.
Next, despite that Ms. Baptiste advised in an October 8, 2019 letter that the plaintiff could file her amended list of authorities instead of the amended factum, when the plaintiff sent this list to Ms. Baptiste and Mr. Mack, Ms. Baptiste unfairly refused to accept her list of authorities.
Click here to read the plaintiff's application filed December 9, 2019, and amended list of authorities, concerning Ms. Baptiste's refusal to file the plaintiff's amended list of authorities contrary to her earlier direction. Ms. Baptiste said the parties would have to wait for instructions on adjudicating the application - it was never adjudicated.
Watch this blog for further updates on these and related matters and next steps.
The complaint below about Ms. Baptiste's conduct is made pursuant to the process of the Ministry of Justice and Solicitor General, which advises that a complaint about a Court of Appeal case management officer can be made to either the Chief Justice of the Court of Appeal or the Registrar.
If you are concerned with the conduct of a case management officer at the Court of Appeal in your own appeal matter, you may also wish to make a complaint to the Chief Justice of the Court of Appeal with this same process.
January 23, 2020
Sent via fax to 780-422-4127
Attention: The
Honourable Chief Justice Catherine Fraser
Court of Appeal of Alberta
Court of Appeal of Alberta
1A Sir Winston Churchill Square
Edmonton, AB T5J 0R2
Your Honour:
Re: Complaint about
case management officer Laurie Baptiste
Appeal Action Nos. 1901-0078AC/1901-0179AC;
Carbone v. McMahon, Burnett and Gowling Lafleur Henderson LLP (Gowling WLG)
This
letter must be delivered to the addressee, the Honourable Chief Justice Catherine
Fraser, pursuant to the process indicated below.
This
is further to my letter to you dated January 2, 2020, and my prior related correspondence
in December 2019 outlining some of the issues for my complaint about the case
management officer Laurie Baptiste. My January 2 letter advised of many of
these ongoing issues and that my full complaint materials would follow. This
letter advises of the full complaint issues, attaches supporting material, and
repeats some of the issues for reference.
As
previously advised, I am making this complaint pursuant to the process provided
to me by the Ministry of Justice and Solicitor General, being that a complaint
about a case management officer must be made to either the Honourable Chief
Justice Catherine Fraser or the Registrar. Accordingly, this letter is addressed
to Your Honour, and is also copied to the Minister of Justice and Attorney
General. In the interests of transparency, and consistent with my Notice of Appeal advising that my appeal materials will be distributed to the public
offices indicated therein, this letter shall also be sent to those public
offices.
To
be clear, as I earlier advised, this complaint concerns Ms. Baptiste’s conduct and
it is for administrative complaint purposes, and not judicial purposes and does
not seek to address any decision of this court. Reference to application
materials is to provide you with background information relevant to this complaint.
I believe that review of Ms. Baptiste’s conduct requires assessment of all
matters as a whole.
All of the issues identified below adversely impact my
ability to properly deal with my important upcoming appeals of Justice Michele
Hollins’ decisions which contain extensive and serious errors and require that
I have critical facts, case law, and argument before the appeal panel. The nature
of my case is the Respondent/Defendant lawyers Megan McMahon, Taryn Burnett and
Gowling Lafleur Henderson LLP (now Gowling WLG, “Gowlings”) engaged in serious lawyer
wrongdoing in abuse of court processes and other misconduct, for which a
growing body of binding jurisprudence permits remedy through the inherent
jurisdiction of the court. Deliberate, malicious and abusive wrongdoing by
lawyers is a growing area of law, with recent case law development and emphasis
on such matters by the Supreme Court of Canada (see, for example, Quebec Director
of Criminal and Penal Prosecutions v Jodoin, 2017 SCC 26). My appeals raise
important issues with potentially far reaching implications, and it is critical
that I not be denied access to justice or be put at an unfair disadvantage by
Ms. Baptiste’s prejudicial directions and refusals. It also speaks volumes that
Mr. Mack and the Respondents/Defendants must engage in ongoing scorched earth
tactics toward me, a self-represented person with no legal training, or seek
that a court administrator assist them in order to attain any success.
The Supreme Court of Canada has endorsed the Statement
of Principles on Self-represented Litigants which makes clear that court
administrators must make every effort to ensure there is no disadvantage to self-represented
persons, promote access to justice for all self-represented persons, and ensure
that procedures are not used to unjustly hinder the legal interests of
self-represented persons. I believe that these Principles also extend to
conduct of court administrators in general and that Ms. Baptiste’s conduct
should be assessed in light of them.
The Principles in the Supreme Court’s Statement
of Principles on Self-represented Litigants include:
Judges and court administrators should do
whatever is possible to provide a fair and impartial process and prevent an
unfair disadvantage to self-represented persons.
Judges, the courts and other participants
in the justice system have a responsibility to promote access to the justice
system for all persons on an equal basis, regardless of representation.
Judges should ensure that procedural and
evidentiary rules are not used to unjustly hinder the legal interests of
self-represented persons
It
is significant that Ms. Baptiste refused filing of my amended factum despite
that I submitted it on the deadline. By way of background, Ms. Baptiste set a
deadline of October 1, 2019 for me to submit my amended factum [please see my attached
affidavit dated November 4, 2019/filed November 14, 2019] containing critical additional
facts, case law and argument for my upcoming appeals. I met this October 1,
2019 deadline when I submitted my amended factum to Ms. Baptiste and Mr. Mack on
October 1, 2019 at 4:02pm, albeit in softcopy by email, seeking to file
hardcopies the next morning. Despite that I submitted my amended factum on the
October 1, 2019 deadline set by Ms. Baptiste, she refused to honour her own
direction when Mr. Mack sent a letter to her on October 3, 2019 objecting to
the filing of my factum after he read my amended factum and noted it
strength in substance. My affidavit dated November 4, 2019/filed November 14,
2019 shows that on October 1 at 4:02pm I sent email correspondence to Ms.
Baptiste and Mr. Mack attaching my amended factum, advising that it would be
filed in hardcopy the following morning. On the following morning October 2,
2019, my amended factums were printed in hardcopy at significant expense to me in
the amount of $214.42. Also on the morning of October 2, 2019, I emailed the receipt
for this expense to Ms. Baptiste and Mr. Mack.
Despite
that I submitted my amended factum in softcopy on the October 1, 2019 deadline
and paid hundreds of dollars to have hardcopies printed, Ms. Baptiste stated in
her October 8, 2019 letter emailed at 5:36pm that she would not let me file the
hardcopies of my amended factum. This is clearly prejudicial to me and assistive
toward Mr. Mack and his seeking to prevent me from putting my critical materials
before the appeal panel. Mr. Mack and the Respondents/Defendants engage in
these scorched earth tactics to prejudice my right to a fair appeal, in usual
fashion. It is also very concerning that Mr. Mack used my amended factum to
strategically prepare the Respondents/Defendants’ reply factum, having full
knowledge of my arguments, case law, and facts. It clearly puts me at a
significant disadvantage for Mr. Mack to be able to rely on my amended factum
for strategic preparation of their reply factum, while I am prevented from
relying on my own amended factum.
As a self-represented person I required extensions to
file my factum to appeal Justice Hollins’ three related decisions in the
timeframe normally allotted for one appeal, and I faced a number of issues
beyond my control, technical issues, and personal matters not uncommon for a
self-represented person. I provided reasonable explanations. These extensions
were mostly of only a one or two day nature, and in hindsight it would have
made sense to request one longer extension to accommodate for such issues that
could arise for a self-represented person. I ensured I did not miss any
deadlines. It was only when I filed and circulated my amended factum to Ms.
Baptiste and Mr. Mack on the set deadline of October 1, 2019 that Mr. Mack
desperately raised opposition to its filing after he read it and noted its
strength.
It
is also concerning that Ms. Baptiste misstated the time I sent my email, which
attached my amended factum, to her and Mr. Mack on October 1, 2019 to be 4:18pm
instead of the actual time of 4:02pm which would qualify as on time. The
evidence that I sent my email at 4:02pm and not 4:18pm is in my affidavit dated
November 4, 2019/filed November 14, 2019. Mr. Mack’s correspondence also states
that I sent the email at 4:02pm. Ms. Baptiste made other errors, such as refusing
to acknowledge significant facts surrounding the issues, and blatantly
exaggerating other things in her letter dated October 8, 2019. The facts and my
affidavit evidence are solid and clearly show that Ms. Baptiste set a deadline
of October 1, 2019 to file my amended factum which I submitted in softcopy that
day, with seven copies printed in hardcopy the following morning which I paid
hundreds of dollars for. I have attached my application and memorandum ofargument filed November 14, 2019 to provide you with further background, though
I am not asking for any review of judicial matters. As indicated above, my
complaint herein is strictly of an administrative complaint nature concerning
Ms. Baptiste’s conduct.
Further issues with Ms. Baptiste’s October 8, 2019
letter attempting to justify refusal to file my amended factum, despite that I
submitted it on the deadline, are contained in my November 14, 2019 application
materials. Some of the significant issues include:
- Ms. Baptiste disregarded and made no mention of the fact that my amended factum was sent to Ms. Baptiste and Mr. Mack, albeit by email, on the deadline of October 1, 2019 with my seeking to file the hardcopies to be printed the next morning on October 2. I believe Ms. Baptiste completely omitted this important fact because it clearly shows I submitted my amended factum on the deadline and it was unjust for her to refuse its filing.
- Ms. Baptiste had earlier advised in July 2, 2019 email correspondence that “Both parties may file combined factums dealing with both appeals of not more than 42 pages” (42 pages is the combined page count for the standard appeal and fast track appeal, which were consolidated), and yet her October 8, 2019 letter attempts to suggest that this was somehow now an issue used to deny filing of my amended factum. This issue is one of many in which Ms. Baptiste virtually copied and pasted Mr. Mack’s submissions in his October 3, 2019 letter opposing my amended factum being filed, and this is one of many issues raised by Mr. Mack that ring hollow, given that he earlier stated agreement with the 42 page limit in his July 2, 2019 email correspondence, in which he stated: “should additional pages be allowed to the appellant the same latitude should be granted to the respondents."
- Ms. Baptiste advised me that I would have to make the rest of my submissions in my amended factum she refused instead in my oral submissions before the appeal panel, which will be virtually impossible as I will not be able to read my 42 page amended factum within the 45 minutes allowed for oral submissions. She further stated that she would only allow me to file a further list of authorities, direction which she also failed to honour as indicated below.
- It is also highly significant that Ms. Baptiste disregarded and made no mention of the fact that Mr. Mack admitted in his October 3, 2019 letter opposing the filing of my amended factum that the Respondents/Defendants would not be prejudiced by its filing (which is because they had the benefit of using my amended factum to strategically prepare their reply factum.) It is concerning that instead of acknowledging the fact that Mr. Mack admitted the Respondents/Defendants would not be prejudiced by the filing of my amended factum, Ms. Baptiste’s October 8, 2019 letter stated that I said the Respondents would not be prejudiced by it; I had merely restated Mr. Mack’s admission of no prejudice to the Respondents.
- On October 4, 2019 I had sent email correspondence to Ms. Baptiste with brief remarks about Mr. Mack’s October 3, 2019 letter. One point I raised was that the Respondents/Defendants themselves have not adhered to filing requirements, and I referred to the previous decision in this case, Carbone v McMahon, 2015 ABCA 263, which noted that the Respondents/Defendants had not filed reply materials and were not permitted to make oral submissions, and further made clear the purpose of the relevant rule they did not comply with which is intended to avoid surprises to the opposing party. In Ms. Baptiste’s October 8, 2019 letter, she misstated the events relating to this decision in effort to support Mr. Mack and the Respondents/Defendants and, further, in her prior October 4, 2019 email correspondence to me about this matter [attached] Ms. Baptiste wrote, “Your comments about past actions of the Respondent are not relevant to the current matter” yet she clearly has different standards for me. I was at the hearing for that application and I am well aware of what transpired, including that Respondents/Defendants’ counsel not only failed to file reply materials but failed to inform me of their general position so that I 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.
The
next concerning refusal by Ms. Baptiste preventing me from filing important
materials for my appeal concerns my list of authorities. As it was determined I
could not file my amended factum, on December 5, 2019 I emailed my amended list of
authorities to Ms. Baptiste and Mr. Mack, further to Ms. Baptiste’s direction
in her October 8, 2019 letter which said I could file my amended list of authorities
instead of my amended factum. Regardless of her earlier direction, Ms. Baptiste
replied indicating that now she would not let me file my list of authorities
either [see attached email correspondence]. She stated that I would have had to
have filed my list of authorities by October 15, 2019. I replied that it would not
have been possible for me to consider filing solely my list of authorities by
October 15, 2019 given that I had advised on October 8, 2019 that I would be
making an application to review and rescind her direction preventing me from
filing my amended factum that was submitted on the October 1, 2019 deadline. Accordingly,
also on December 5, 2019 I advised I would be filing an application to have Ms.
Baptiste’s refusal to file my list of authorities reviewed by a Justice. The
application document, memorandum of argument, and my supporting affidavit, all
filed December 9, 2019, are attached for your reference. It is also concerning
that Ms. Baptiste is not honouring her earlier direction for my further list of
authorities given that I spent at last 50 hours doing case law research for the
extensive and serious errors in Justice Hollins’ three decisions requiring many
appeal grounds, a significant undertaking for a self-represented person, which
I believe came to Ms. Baptiste’s attention in one of the email threads.
On December 9, 2019, I arrived at the court counter to
file my application materials seeking to review and rescind Ms. Baptiste’s refusal
to honour her earlier direction in her October 8, 2019 letter indicating that I
could file my list of amended authorities in place of my amended factum. The clerk
advised me that Ms. Baptiste said that this application would be dealt with in
writing. I was only told this after I arrived to file my application, which
I had drafted quickly in order to have it heard the standard 10 days later,
which would be the last hearing date available for the year. I had fully
expected to make the rest of my submissions in oral submissions before a
Justice, as is normal procedure.
Also
on December 9, 2019, while I was at the counter filing my materials and having
my affidavits affirmed a woman, who I believe to be Ms. Baptiste (tall with
long blonde hair), stood behind the counter behind the clerks so that I could
see that she was fuming angry at me, presumedly because I had filed applications
about her unfair actions in my November 14, 2019 and December 9, 2019
applications which sought review of her directions. It is completely inappropriate
for Ms. Baptiste to stand in front of me and use a physical intimidation tactic
such as this to express her anger with me for filing these applications about
her. I am within my rights to file applications to review a case management
officer’s direction pursuant to Rule 14.36(3) and I do not need to tolerate any
physical intimidation tactics from a court staff member having a temper tantrum.
Ms. Baptiste made me feel very uncomfortable with her physical intimidation and
I do not want her involved in my appeal matters any further.
Immediately
following my filing and serving of my application on December 9, 2019 seeking to file my list of authorities, Ms. Baptiste emailed a letter to both parties
at 4:21pm advising that my application would be dealt with in writing. Ms.
Baptiste is well aware that as I had not been apprised of my application being dealt
with in writing until after I arrived at the counter to file it, this
was putting me at a significant unfair disadvantage as I did not have
opportunity to write all of my submissions in the application. Further, Ms.
Baptiste was advising Mr. Mack before he submitted his reply materials
that my application would be dealt with in writing so that he would have an
unfair advantage of knowing that any submissions he wished to make would need
to be in his written submissions. This is further unfair to me as I had quickly
prepared my application on December 9, 2019 in effort to have it heard by the
last sitting date of the year, which would have been 10 days after I filed it,
and I fully expected to make the rest of my submissions at the oral hearing, as
is consistent with normal application procedure. I sent a letter to the court
on December 10, 2019 [attached] explaining my concerns and that I would be
filing an amended application the next day to ensure I had all of my
submissions in the application. Following this letter, I understand that Ms.
Baptiste told the Registry to email me to advise me I could not amend my
application, despite these circumstances and her ongoing unfair treatment of me
and the fact that I paid $50 for the application, unless I received permission.
What
is further concerning about the letter Ms. Baptiste emailed to the parties at
4:21pm, immediately after I filed my December 9, 2019 application and served it
upon Mr. Mack, is that she indicated in her correspondence that any future
applications I may have would have to be dealt with in writing. It is clearly
prejudicial to an applicant, especially while not even knowing what the nature
of any future application might be, to refuse to allow oral submissions to expand
on argument and reply to opposing counsel’s submissions. I believe this is
clearly a denial of procedural fairness, in breach of the Court of Appeal Rules
which state that written only submissions must be agreed upon by both parties,
and, in the case of a self-represented person such as myself, a denial of the
Supreme Court endorsed Statement of Principles on Self-represented Litigants.
In
other issues, Ms. Baptiste demanded that I schedule my application filed November
14, 2019 on Mr. Mack’s demanded date of December 4, 2019 despite that I was
scheduling it for an earlier application date to proceed with it in a timely
manner and before the Respondents/Defendants filed their reply factum. It is an
applicant’s right to schedule a date for her own application and I did so in
perfect accordance with the Rules. Despite that I was not required to obtain
Mr. Mack’s permission for a hearing date for my application, as a courtesy I
sent email correspondence to Mr. Mack on November 12, 2019 regarding options
for a hearing date for my application. Mr. Mack replied that he only wanted my
application heard on December 4, 2019 and advised Ms. Baptiste of this demanded
indulgence. I filed my application with a hearing date of November 27, 2019 and
this was done before Ms. Baptiste sent email correspondence on November 14, 2019
later that same day, in which she stated that I “must” have my application
heard on the date sought by Mr. Mack [see attached correspondence]. When I
served Mr. Mack with my application materials filed November 14, 2019 which, again,
was before Ms. Baptiste sent her email demanding that I accede to Mr. Mack’s
demanded date, Mr. Mack forwarded my email correspondence with him to Ms.
Baptiste with a snide remark. Mr. Mack’s forwarding of our email correspondence
to the cmo is contrary to the Court of Appeal cmo rules webpage which indicates,
“Please note that you should not copy the CMO on general communications between
counsel or parties; for example, disputes about issues such as service of
documents.” Ms. Baptiste then changed the
hearing date for my application from November 27, 2019 to his demanded date of
December 4, 2019. There are several highly concerning matters here: First, a
party with an application can schedule it to any date as long as it is 10 days
in advance of the hearing date, and there is no such requirement for a party
with the application to be forced into any specific hearing date opposing
counsel chooses. I understand that long ago the court removed the pre-booking
requirement. Further, as I advised Mr. Mack, he was free to have a colleague
attend for this application as he has had a colleague do in the past. Second, Ms.
Baptiste changed the hearing date I required to Mr. Mack’s demanded hearing
date to appease Mr. Mack and discard my required hearing date, which is unfair to
me. Third, opposing counsel seeking a specific hearing date for an applicant’s
application may be construed as judge shopping, although this issue is likely
not present in this situation. Mr. Mack demanded that my application be heard
only on December 4, 2019 and he did not state any reason for this rigid demand and
not being able to accommodate any other date. Mr. Mack and the Respondents/Defendants
are no stranger to judge shopping: they previously engaged in judge shopping
when they asked Justice Earl Wilson to be their case management judge at the
Court of Queen’s Bench in this case, and Justice Wilson was subsequently
removed from this case by the Chief Justice in January 2015.
In addition to all of these concerns
Ms. Baptiste has also attempted to restate, in one form or another, this
court’s previous decisions or specific directions that have been in my favour to
instead favour Mr. Mack and the Respondents/Defendants, and has gone so far as
to state the Respondents/Defendants have done nothing wrong, which is blatantly
and clearly wrong in light of the nature of my case and the Respondents/Defendants’
serious wrongdoing Ms. Baptiste has no knowledge of, and which is extensively evidenced
in my June 5, 2018 affidavit before this court for my appeals. Such statements
clearly give one the appearance Ms. Baptiste is not impartial. Another example
is noted above regarding her incorrect statements about the decision Carbone
v McMahon, 2015 ABCA 263. In another example, Ms. Baptiste advised I
was not awarded costs for my successful appeal Carbone v. McMahon, 2017
ABCA 384 which she advised is somehow due to details such as that Mr. Mack had
given submissions on costs and, she said, I could have but did not. This is
incorrect. Mr. Mack sent me a letter that he purported he sent to the court
seeking a date to discuss costs for my successful appeal and I was given the impression
from Mr. Mack that we were waiting to hear from the court as to a hearing date
for costs he wanted to oppose despite the normal rule that the successful party
is awarded costs. Consistent with Mr. Mack and the Respondents/Defendants’
usual scorched earth tactics, Mr. Mack advised he was seeking to have me denied
costs of my successful appeal. I was given the impression by Mr. Mack that we
were waiting for the court to advise us of a hearing date for this but then
without any opportunity for me to make submissions, I received documentation
from the court staff indicating there would be no costs awarded. Further on the
issue of Ms. Baptiste’s statements of what she said took place, despite that
she said Mr. Mack made submissions on costs, in a hearing last year before
Justice Hollins Mr. Mack told Justice Hollins that he did not make submissions
on costs for said successful appeal of mine. I have these submissions of his in
the form of a transcript, which is also before this court in my appeal book. As
I very briefly alluded to for context in my November 14, 2019 filed application
concerning Ms. Baptiste’s refusal to allow me to file my amended factum, I am
dealing with the matter of costs for my successful appeal Carbone v. McMahon,
2017 ABCA 384 which is still to come before the original three justice appeal
panel as the Rules mandate for the specific remedy I shall be seeking. Further
concerning, when I sent separate email correspondence on October 10, 2019 to
Mr. Mack on the subject of costs I should receive for my successful appeal given
new information that had surfaced regarding purported submissions of Mr. Mack, Mr.
Mack forwarded our email correspondence to Ms. Baptiste, soliciting her support
of him and asking her to answer for him concerning his purported submissions on
costs, and Ms. Baptiste replied with this support. I then had to reply to both
Ms. Baptiste and Mr. Mack advising: “My comments in the email thread below were
for Mr. Mack and it was not appropriate for him to engage you in my email
correspondence with him to solicit your support of him again.” [see attached
October 10-11, 2019 email correspondence]. This engaging of the cmo by Mr. Mack
in communications between parties is contrary to the direction on the Court of
Appeal’s case management office webpage [attached] indicated above.
Related
to Mr. Mack’s inappropriate communication method of forwarding of emails to Ms.
Baptiste, there is also evidence that Mr. Mack telephones Ms. Baptiste
regarding my appeal matters. It seems there would be little reason for Mr. Mack
to telephone Ms. Baptiste about my appeal matters when he can instead send
email correspondence to all.
Ms.
Baptiste’s prejudicial conduct toward me, her inappropriate interference with
my applications which relate to her directions, her refusal to honour
directions and deadlines for my materials she set which places me at an unfair
disadvantage, appeasing of Mr. Mack’s requests that prejudice me, and physical
intimidation toward me, among other issues, have unjustly hindered my legal
rights and my access to justice. At the very least, Ms. Baptiste’s conduct
gives the appearance that the court will bend to the will of counsel when one
party is self-represented and this undermines the public’s confidence in the
administration of justice.
Given
these serious issues with Ms. Baptiste’s conduct, I respectfully request that she
be immediately removed from having any involvement with my appeal matters. As I
suggested in my January 2, 2019 correspondence, perhaps the case management
officer in Edmonton or another staff member in Calgary can assume case
management of my appeal matters.
I further request that a warning be issued to opposing
counsel Mr. Mack prohibiting him from continuing to forward our email correspondence
of a general communication or litigation nature between the parties to any
decision makers in this court including Ms. Baptiste, and further prohibiting Mr.
Mack from continuing to make phone calls to any decision makers in this court
including Ms. Baptiste concerning my appeal matters when correspondence to all suffices.
Thank you for your attention.
Yours truly,
Carbone
Enclosures
Cc: Doug Schweitzer, Minister of Justice and
Solicitor General
