Update September 17: Click here to read the plaintiff's appeal factum with her important grounds in the "Grounds of Appeal" section at paragraphs 68-92, that Justice Marina Paperny falsely and egregiously stated were too repetitive to review and that it was more "expedient" not to.
The enormity of unfairness surrounding the self-represented plaintiff's appeals in the lawyer misconduct lawsuit against Gowlings lawyers Megan McMahon and Taryn Burnett is shocking.
The plaintiff Carbone filed an application seeking the recusal of Justice Marina Paperny on September 4, 2020, after she learned on September 3 that Justice Paperny was on the appeal panel for her appeals #1901-0179AC/1901-0078AC. The plaintiff's further recusal application materials were filed as soon as possible, on the morning of September 8. The recusal application was necessary given the serious apprehension of bias raised over many years involving Justice Paperny in both the lawyer misconduct case and the underlying medical malpractice case.
Click here to read the plaintiff's application seeking recusal of Justice Paperny, which contains many of the issues concerning apprehension of bias.
Justice Paperny gave her oral decision refusing recusal on September 8. In doing so, she ignored important facts raising apprehension of bias, made errors, and was extremely defensive. It was then necessary for the plaintiff to file an application for permission to appeal to a panel Justice Paperny's oral decision refusing recusal. The purpose of the permission to appeal application is for Justice Paperny's refused recusal to be reviewed by a panel of the court with a view to replacing her with a new appeal panel member so that the full appeal can be adjudicated fairly.
After the plaintiff already submitted her application document and affidavit on September 10, 2020 for her application seeking permission to appeal to a panel Justice Marina Paperny's oral decision refusing recusal, and after she advised her memorandum of argument for this application was forthcoming, Justice Paperny egregiously rushed to get a full appeals decision out before the Applicant's application could be adjudicated.
Justice Paperny's sheer desperation in attempting to beat the timing of the plaintiff's application seeking permission to appeal her refused recusal decision is absolutely shocking. It is not even possible for a full appeals decision with approximately 20 grounds of appeal, due to the extensive serious errors of Justice Michele Hollins, to be fully and fairly adjudicated in one week.
Click here to read the plaintiff's Notices of Appeal setting out the significant errors made by Justice Michele Hollins at the Court of Queen's Bench.
Click here to read the plaintiff's amended factum with the facts, grounds of appeal, argument and some of the case law relied on. It is also egregious that the appeal panel headed by Justice Paperny refused to allow the plaintiff sufficient time to read portions of this amended factum that were not in her original factum. Related to this, the facts of the Court of Appeal case management officer Laurie Baptiste's egregious misconduct are well known: Laurie Baptiste refused to file the plaintiff's amended factum containing critical additional facts, argument and case law at the request of opposing Respondents/Defendants counsel Perry Mack, despite that the plaintiff submitted her amended factum according to the directed 42-page factum limit for both parties and on the directed deadline of October 1, 2019, albeit by email with hardcopies prepared the next morning. The amended factum is required for informed and fair adjudication of the appeals.
It is also shocking that Justice Paperny rushed to get a full appeals decision out before the permission to appeal application could be heard, given the plaintiff has evidence that Justice Paperny knew the plaintiff's application seeking permission to appeal was in progress. For example, the plaintiff has correspondence dated September 15 from Justice Paperny about the page limit for the memorandum of argument for the application. This correspondence states: "Justice Paperny has considered your request to file a memorandum of up to 13 pages in relation to your application for permission to appeal the decision denying your recusal application. Your request is granted on the condition that the respondents also be permitted to file a reply memorandum of up to 13 pages, if required."
When the plaintiff learned on September 16 the full appeals decision was rushed for release the next day, the plaintiff submitted her memorandum of argument also on September 16, which shall be amended with further facts and argument given the circumstances.
Below is the plaintiff's (applicant) memorandum of argument filed September 16, supplementing her application and affidavit already submitted on September 10, seeking permission to appeal to a panel Justice Paperny's refused recusal from the appeal panel. As stated in the memorandum of argument, below, the plaintiff shall amend it with facts and argument given the emergency basis on which it was filed. These application materials were filed in advance of any appeal decision details being released or made known.
Update September 17:
There are significant "errors" in the appeal decisions headed by Justice Marina Paperny and they will be appealed to the Supreme Court of Canada. The level of failure to fairly and transparently adjudicate the extensive errors made by Justice Michele Hollins is beyond egregious. Justice Paperny, as with all of her decisions when it comes to this plaintiff in the lawyer misconduct case and underlying medical malpractice case, refused to state the grounds of the appeal, facts, argument and case law which must be done in order to fairly adjudicate any appeal. This is in fact one of the grounds in the plaintiff's application seeking her recusal. It is more than clear the recusal was required in the interest of justice.
For example, Justice Paperny said there are 26 grounds of appeal so she will not go through them because it is "easier" for her not to. This is egregious. The basis of an appeal is the grounds. They state the errors the lower court, Justice Hollins, made. Justice Paperny knows full well that the plaintiff's grounds of appeal, supported by the lower court record, argument, evidence and case law, are solid so she failed to state the grounds of the appeal.
Click here to read the plaintiff's appeal factum with the "Grounds of Appeal" section at paragraphs 68-92, outlining the distinctly different and important grounds that Justice Paperny falsely and egregiously stated were too repetitive to review and that it was more "expedient" not to. The facts and argument sections elaborate on these grounds.
Justice Paperny further twists the truth and the law when she purports the claims were not proven in order to help Justice Hollins out of her web of falsehoods. It is absolutely false that there was any adjudication of the plaintiff's claims. There is no such opportunity of testing of claims, or adjudication of them, on an amendments application or striking application. Justice Paperny knows that the appeal before her is based on the errors in Justice Hollins' adjudication of the plaintiff's application to amend her statements of claim to add further claims and particulars, and the defendants' application for striking. Both type of applications are based on the pleadings only (the wording/facts of the allegations in the statements of claim and elements of each "cause of action") and not adjudication of the claims. There was no adjudication whatsoever on the merits of the claims in this lawyer misconduct case; testing on merits of claims is only done at trial or on a summary judgment application. It is also significant that the plaintiff filed extensive evidence, which both Justice Hollins and Justice Paperny egregiously ignored, while the Respondents had no evidence whatsoever.
Justice Hollins, and subsequently Justice Paperny, desperately sought to stop the case before it could go to trial, at which they know the plaintiff's claims of lawyer misconduct, and more, will be proven. Indeed, Gowlings lawyers Megan McMahon and Taryn Burnett's serious misconduct does reflect poorly on the justice system. Justice Paperny and Justice Hollins have no right to suppress the truth, and everyone knows anyway. These judges need to re-examine why they are judges - to serve the public, not guilty lawyers who give their profession a bad name. The court must uphold its responsibility through its inherent jurisdiction to sanction and punish deliberate, malicious conduct and abuse of process by lawyers. The Supreme Court of Canada made this responsibility clear in its recent seminal decision Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26.
Justice Paperny thinks no one will notice or care that she has debased the law and ignored the appeal grounds because the plaintiff is self-represented. She has a history of disdain for self-represented persons. While Justice Paperny may not care what the public, her peers, and the legal community think of her, she should at least have regard for the fact that her actions reflect upon the justice system and erode the public's confidence in the administration of justice.
Given Justice Paperny's tactical maneuvering noted above, and other conduct issues, it will also be necessary for the plaintiff to file a complaint with the Canadian Judicial Council, which shall be posted on this blog.
1.
This is the initial version of the Memorandum
of Argument of the Applicant/Appellant/Plaintiff seeking permission to appeal
to a panel the Honourable Justice Marina Paperny’s oral decision dismissing the
Applicant’s application seeking her recusal from the appeal panel for her appeals
#1901-0179AC/1901-0078AC. The Applicant shall file an amended Memorandum of
Argument given the circumstances below.
2.
The Applicant brought the recusal
application seeking Justice Paperny’s recusal from the appeal panel due to
significant apprehension of bias raised over a significant time period.
The Application for recusal was heard and decided orally on September 8, 2020.
The Application for recusal was filed as soon as possible after the Applicant
became aware on September 3, 2020 that Justice Paperny was on the appeals
panel. She advised the Court of this forthcoming recusal application on
September 3, 2020, filed an initial recusal application on September 4, 2020,
and filed amended application materials at the first opportunity after the long
weekend on the morning of September 8, 2020.
3.
On September 10, 2020, the Applicant submitted
her application for permission to appeal to a panel Justice Paperny’s recusal
decision, with an accompanying affidavit affirmed September 10, 2020. Her
application advised her Memorandum of Argument for the permission to appeal
application was forthcoming given the short timing of events. The Court did not
file it and, on September 11, 2020, it advised that a Memorandum of Argument
must be filed at the same time. The Applicant wrote to Justice Paperny on Monday,
September 14, 2020, advised her of the information the Court gave her about the
memorandum for her application for permission to appeal to a panel Justice
Paperny’s refused recusal, and also requested a page limit of 13 pages for her
forthcoming memorandum for the application. On September 15, 2020 the Applicant
was advised Justice Paperny allowed both parties a memorandum page limit of 13
pages.
4.
Suddenly, on September 16, 2020 the Court
sent a letter to the Applicant advising that the decision for her appeals #1901-0179AC/1901-0078AC
was being released on September 17, 2020. When the Applicant read the letter,
the Applicant replied to the Court advising of her confusion, given that her
application for permission to appeal to a panel Justice Paperny’s recusal decision
must be heard and decided before the appeals decision with Justice Paperny on
the panel can be given in consideration of the circumstances. Justice Paperny
and the Court were aware of the Applicant’s permission to appeal application since
September 10, 2020.
5.
It is highly significant that the
Applicant submitted to the Court on September 10, 2020 her initial application seeking
permission to appeal to a panel Justice Paperny’s oral decision refusing to
recuse herself from the panel.
6.
It would appear that Justice Paperny is
rushing to get a decision out on appeals #1901-0179AC/1901-0078AC, knowing full
well that the Applicant’s timely application seeking permission to appeal her
refused recusal was initially submitted on September 10, 2020 with her
memorandum for same forthcoming. It is clear that the permission to appeal decision
must be adjudicated before Justice Paperny can make any decision, if at all, on
appeals #1901-0179AC/1901-0078AC.
7.
It is also highly concerning that Justice
Paperny appears to be making a rushed decision on the appeals just heard on September
8, 2020, given the Applicant’s application seeking permission to appeal Justice
Paperny’s oral decision states that her Supreme Court of Canada leave to appeal
application, which appeals Justice Peter Martin’s erroneous decision refusing
permission to appeal his earlier decision, would be decided in a reasonable amount
of time and was necessary before an appeals decision was made for appeals #1901-0179AC/1901-0078AC.
The Applicant’s Supreme Court of Canada leave to appeal application concerns
Justice Martin’s errors regarding his earlier decision with respect to the case
management officer Laurie Baptiste’s egregiously unfair refusal to file the
Applicant’s amended factum at opposing Respondents/Defendants counsel Perry
Mack’s request, despite that the amended factum complied with the directed
42-page factum limit for both parties and was submitted on the directed
deadline of October 1, 2019, albeit by email and with hardcopies submitted the
next morning. The Applicant’s amended factum contains highly critical additional
facts, argument and case law necessary for an appeal panel’s informed adjudication
of appeals #1901-0179AC/1901-0078AC.
8.
It appears Justice Paperny is rushing a
decision on the appeals #1901-0179AC/1901-0078AC based on her knowledge that
the Applicant has applications in progress for (a) permission to appeal to a
panel Justice Paperny’s oral decision refusing recusal; and (b) Supreme Court
of Canada leave to appeal application which will likely change the course of
the appeals decision as it seeks to ensure the appeal panel has the Applicant’s
amended factum before it for informed appeal adjudication.
9.
The circumstances and rush decision in play
which have the appearance of seeking to beat the timing of the Applicant’s crucial
applications in progress are highly shocking and egregious. The Applicant’s
materials will be submitted to many public offices across Canada and there will
be no confusion as to the circumstances.
10. The Applicant has submitted the within memorandum on an emergency basis, September 16, 2020, so that these facts are clear before any decision on appeals #1901-0179AC/1901-0078AC are known or released.
11. Given the emergency basis upon which this Memorandum of Argument has been filed, the Applicant will be amending this Memorandum of Argument in due course and it will total 13 pages, as mentioned above, and contain extensive further facts raising apprehension of bias concerning Justice Marina Paperny. Therefore, the facts and argument sections for the Applicant’s application seeking permission to appeal to a panel the oral decision of Justice Paperny will be contained in her amended Memorandum of Argument.
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