Due to concerning issues over many years that raise a reasonable apprehension of bias, it was necessary for the plaintiff to file a recusal application prior to the appeal hearing, seeking that Justice Paperny recuse herself from the appeal panel.
Some of these issues raising apprehension of bias concerning Justice Paperny involve:
(a) Justice Paperny repeatedly assigns herself to the plaintiff's most significant appeal and appeal application matters in the lawyer misconduct case and the underlying medical malpractice case and dismisses them with blatant disregard for the plaintiff's most important facts, argument and evidence;
(b) The defendants/respondents Megan McMahon, Taryn Burnett, Gowlings and their lawyer Perry Mack judge shopped for Justice Paperny's assignment to the present appeals, which they did not even deny on reply submissions;
(c) Justice Paperny's previous decision denying the plaintiff's appeal to remove Justice Earl Wilson from the case (whom the defendants judge shopped for) was properly later reversed by the Court of Queen's Bench Chief Justice, suggesting that Justice Paperny should not be given another opportunity to err again in the same case on the same issue in the present appeals;
(d) Justice Paperny and the trial judge Charlene Anderson in the underlying medical malpractice case are personal friends as witnessed by the plaintiff at a restaurant they were at with two girls in soccer uniforms, and despite which Justice Paperny assigned herself to the plaintiff's appeals (in-trial appeal and later full appeals after trial) from Justice Anderson's erroneous decisions and egregiously dismissed them without any regard to the facts, argument and evidence (the ongoing pattern);
(e) a review of case law involving Justice Paperny shows her "perceived disposition" (Gashikanyi at para. 71) is to dismiss any appeal containing a ground of apprehension of bias, unless to do so would benefit self-represented plaintiffs to the detriment of defendant lawyers; and
(f) extensive further issues raising apprehension of bias (see plaintiff/applicant September 7 affidavit.)
The plaintiff filed the original application on Friday, September 4, the day after she became aware of the appeal panel composition. She advised within the application document that, given she had just learned this the day before, she would be amending it as soon as possible to add further grounds and file a memorandum of argument and affidavit in support, which she did the morning of September 8. The plaintiff's affidavit affirmed September 7 for the recusal application is a must read to understand the enormity of apprehension of bias concerning Justice Paperny.
The plaintiff made clear in the recusal application documents that the only Court of Appeal judge she would begin to have concerns with is this judge. This includes that she stated in correspondence and court documents filed with the Court of Appeal for this appeal a year and more ago, that it was respectfully submitted that matters should be heard by any judge other than her.
"It is respectfully submitted that this application be heard by any justice other than the Honourable Paperny JA."
Below is the plaintiff's (applicant) Memorandum of Argument for her application seeking the recusal of Justice Paperny.
Update September 10, 2020: Justice Paperny refused to recuse herself when this application was heard on September 8. On September 10, the plaintiff submitted application documents seeking permission to appeal to a panel this refused recusal. It is critical to the fair adjudication of her important appeals that Justice Paperny be replaced with a new panel member.
Introduction and Relief
Sought
1.
This is the Memorandum of Argument of the
Applicant/Appellant/Plaintiff seeking the recusal of the Honourable Justice
Marina Paperny from the appeal panel assigned to appeals #1901-0179AC/1901-0078AC
due to significant apprehension of bias raised.
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”). The Respondents maliciously harassed, defamed and defrauded the
Applicant, unlawfully intruded upon privacy, 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 in abuse of
legal processes and outside their client’s interest. The Respondent lawyers committed
this misconduct while acting as defence counsel in the underlying medical
malpractice matter involving surgical injury to the Applicant.
3.
In adjudication of the Applicant’s
application for amendments and the Respondents’ application for striking, Court
of Queen’s Bench Justice Michele H. Hollins egregiously and dishonestly
misrepresented facts and failed to acknowledge the Applicant’s pleadings and evidence,
or provide meaningful analysis. She further allowed outrageous excessive costs
significantly departing from jurisprudence, and admitted she made the costs
order arbitrarily and intended for the Applicant to appeal it. Justice Hollins
did so while operating under serious conflicts of interest and apprehension of
bias, including that at the same time of Justice Hollins’ assignment 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
failed to make any disclosures on the record of potential conflicts in
non-noncompliance with this Honourable Court of Appeal’s decision in this same
case in the Applicant’s favour, Carbone v. McMahon, 2017 ABCA 384.
The
Facts
4.
Last year, in July 2 and 3, 2019 email
correspondence [Applicant Affidavit, Sept. 7 2020 “Affidavit”] with the Court
of Appeal case management officer Laurie Baptiste and opposing
Respondents/Defendants counsel Perry Mack, the Applicant stated her concern
that Mr. Mack may be attempting to have Justice Marina Paperny assigned to the
appeal panel, which has recently become a reality. The Applicant wrote: “For
various reasons, I believe that Mr. Mack is trying to have Justice Paperny
assigned to the appeal panel for these appeals.”
5.
The Applicant filed an application on
November 14, 2019 seeking to rescind the Court of Appeal case management
officer Laurie Baptiste’s unfair refusal to file her amended factum at Mr.
Mack’s request, despite that the Applicant submitted it on the directed
deadline of October 1, 2019, albeit by email and with hardcopies prepared the
next morning. This application, at para. 16 on page 8 [Affidavit], states: “It is respectfully submitted that this application be heard by any justice other than the Honourable Paperny JA.”
6.
The Applicant had a formal adjournment
application for the appeal hearing of the present appeals, which she informed
the Court multiple times was forthcoming [Affidavit], including on the Court’s
requested response date of August 19, 2020 for appeal hearing format during the
pandemic and any adjournment. Mr. Mack had put the Applicant to the task of a
formal application when he unreasonably refused to consent to an adjournment (despite
his own adjournments) or the hearing format she required during the pandemic
due to her unique needs as a self-represented person. Despite that her
application was forthcoming, in September 2, 2020 correspondence, the appeal
panel (justice names not yet disclosed) stated that based on “correspondence
exchanged between the parties”, which included Mr. Mack’s request to bypass the
Applicant’s adjournment application, the appeal hearing would proceed September
8. This predetermination was made by the panel without consideration of the
Applicant’s submissions forthcoming in her adjournment application. Given the predetermination
and procedural unfairness, in correspondence to the panel dated September 3,
2020 [Affidavit] the Applicant raised the issue of recusal with the appeal
panel. Her letter states in part: “I do not know the names of any of the
assigned panel justices as they are not available at this time of 7:00am on
September 3 and therefore my request is not related to any particular judge on
the panel. The only judge I would begin to have a concern with sitting on my appeals
is the Honourable Justice Marina Paperny due to certain events.”
7.
On September 3, 2020, the Applicant
submitted her application seeking adjournment, requested hearing format, and
related relief of permission to appeal the prior decision with respect to Ms.
Baptiste’s unfair refusal of her amended factum materials that needed to be
before the appeal panel for informed adjudication. After the Applicant submitted
her application and affidavit, the Registry advised they were rejected at the
appeal panel’s direction [Affidavit].
8.
The Applicant became aware at end of day,
September 3, 2020 that Justice Marina Paperny was assigned to hear her appeals,
and she promptly advised the Court [Affidavit] she would file a recusal
application, and did so on Friday, September 4, 2020.
9.
There is a length history of issues
concerning Justice Marina Paperny over years, which raise an apprehension of
bias. She has repeatedly assigned herself to the Applicant’s most important
appeals and appeal applications in both the present lawyer misconduct action
and the underlying medical malpractice action, and dismissed them without
regard for the Applicant’s most important grounds, evidence and procedural rights
[see Appendix and Affidavit].
10.
On June 10, 2014, Justice Paperny unfairly dismissed a separate appeal of the Applicant in this lawyer misconduct case, which sought
to remove Justice Earl Wilson as case management judge due to judge shopping by
Mr. Mack and the Respondents, conflict of interest, and apprehension of bias.
Justice Paperny’s erroneous decision was later properly reversed by the Chief
Justice of the Court of Queen’s Bench when he removed Justice Wilson from this
case.
11.
The next day, on June 11, 2014, Justice Charlene Anderson, the trial judge in the Applicant’s medical malpractice case,
unfairly dismissed her case in blatant disregard for the facts and her strong
evidence, witness testimony, and binding case law (see Appendix).
12.
In September 2014, the Applicant saw
Justice Paperny at a restaurant with Justice Anderson. The Applicant’s
September 7, 2020 affidavit states important details about this chance sighting
of their personal friendship which raises apprehension of bias, and about the inappropriate
behaviour Justice Anderson displayed toward the Applicant. Despite that Justice
Paperny knew the Applicant was aware of the appearance of their personal
friendship, Justice Paperny nevertheless chaired the June 2015 appeal panel
hearing for the Applicant’s appeals of Justice Anderson’s unfair medical
malpractice trial decision, and Justice Paperny subsequently unfairly dismissed
her appeals therefrom. The Applicant’s letter dated September 24, 2015 to
Justice Paperny [Affidavit] highlights concerns and references the sighting of
her and Justice Anderson. The Applicant’s letter to the Court and Justice
Paperny dated August 15, 2016 [Affidavit] in reply to Court correspondence, provides
further insight on Justice Paperny’s unfairness, including her refusal to hear the
Applicant’s urgent 2014 in-trial leave to appeal application before this Court,
which was required due to Justice Anderson’s egregious denials of the
Applicant’s rights during trial [Affidavit].
The Law and Argument
13.
Confirmation that judges at the Alberta
Court of Appeal are not randomly assigned to appeal panels and that individual
discretion is present, creating appearance of bias, can be found in this
Court’s own decision rebuking its process for selecting appeal panels. In R.
v. Gashikanyi, 2017 ABCA 194 at paras. 3 & 71, with principles also
applicable to civil cases, this Court stated:
The Court of Appeal of Alberta
does not adhere to a protocol for the random assignment of judges…nor does the
court have transparent, objectively defined automatic systems for determining
panel compositions and case assignments. That failure exposes the Court to
perceptions, whether accurate or not, of having violated the principles that
are the heart of adjudicative fairness.
The
presence of individual discretion in a system of assignment poses a risk that
some may think that panellists will be selected based on their perceived
predispositions. An appellate court that utilizes discretionary, non-random
methods to assign (or to replace an assigned judge) leaves open the potential
for manipulation. It is this potential that is problematic because, even if
manipulation is not actually occurring, the lack of objective guarantees or
protections against such abuse can breed suspicions or perceptions of want of
impartiality, thereby eroding the integrity of, and public confidence in, the
administration of justice.
14.
With respect to judge shopping by counsel
and their clients, in Schwartz Estate v. Kwinter, 2012
ABQB 389 at para. 3, the Court stated: “Judge shopping can be a dangerous practice. At its worst, it can call
into question the principle of impartiality…”
15.
The appearance of Justice Paperny repeatedly
assigning herself to the Applicant’s appeal matters and dismissing them without
regard to her important grounds and evidence (it can not be a coincidence),
particularly when there are already issues of apprehension of bias with her,
and judge shopping by counsel, raises further apprehension of bias and brings
the administration of justice into disrepute.
16.
A review of Justice Paperny’s many decisions
on appeals with a ground of apprehension of bias suggests her “perceived
predisposition” (Gashikanyi at para. 71) is to dismiss appeals
with this ground, with the exception being where a judge rules in
self-represented persons’ favour against defendant lawyers: Malton v Attia,
2016 ABCA 130 (Paperny decision).
17.
Also in Attia, at para. 82 Justice
Paperny stated, in support of the appellant/defendant lawyers in that case, a
reasonable apprehension of bias may be found where it seems a judge has
prematurely made up his mind without providing an opportunity for a party to be
heard. Accordingly, in the present case a reasonable apprehension of bias was
raised when she denied the within Applicant opportunity to be heard on her
application for adjournment and other relief (also see Nazarewycz v Dool, 2009 ABCA 70 at para. 77; Telephone
Co. v Newfoundland, 1992 SCC).
18.
Case law holds that the entire record must
be examined to determine if the behaviour of a judge cumulatively creates a
reasonable apprehension of bias: Miglin v Miglin, 2003 SCC 24 at para.
26. Therefore, these concerning issues are entirely relevant to the
determination of reasonable apprehension of bias requiring Justice Paperny’s disqualification:
(a) The
apprehension of bias arising from the appearance of Justice Paperny repeatedly
assigning herself to the Applicant’s most important appeal matters in both actions,
and unfairly dismissing them without considering important grounds, facts and
evidence;
(b) The
apprehension of bias arising from the appearance of opposing Respondents
counsel and Respondents judge shopping for Justice Paperny’s assignment to the
appeal panel;
(c) Erroneous
decision in appeal #1401-0059AC failing to remove Justice Wilson from this same
case despite presence of conflict of interest, apprehension of bias, and judge
shopping; her decision being later properly reversed to remove the judge, which
also suggests she should not have the opportunity to make the same type of
error again in the same case;
(d) Denial
of procedural fairness in both the lawyer misconduct and medical malpractice
cases;
(e) Appearance
of bias raised from her personal friendship with the medical malpractice trial
judge Justice Anderson in outside personal setting witnessed by the Applicant,
despite which Justice Paperny later assigned herself to the appeals from
Justice Anderson’s unfair trial ruling and unfairly dismissed the appeals
therefrom;
(f) Perceived
predisposition to dismiss appeals with a ground of apprehension of bias, which
the present appeal of Justice Michele Hollins’ erroneous rulings involve; and
(g) Failure
to promote access to justice for self-represented persons, including for
adjournment and accommodation during the pandemic, contrary to the Statement
of Principles on Self-represented Litigants endorsed by the Supreme Court
of Canada in Pintea v. Johns, 2017 SCC 23.
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