Below is the application of the plaintiff, referred to as the applicant/appellant in this document, seeking, among other relief, adjournment, leave to appeal of an appeal justice's interlocutory direction regarding the case management officer Laurie Baptiste's unfair refusals to file the plaintiff's amended appeal materials for the upcoming appeal hearing of Justice Michele Hollins' serious errors.
As reported in earlier blog posts, the Court of Appeal case management officer 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. This is despite that the plaintiff submitted her amended factum on the October 1, 2019 deadline, albeit by email and with hardcopies prepared the next morning. Click here and here for background information on these and related matters.
It is concerning that when the plaintiff submitted the application below to the court via email (the method to submit materials during the current pandemic and, yes, the same method the case management officer Ms. Baptiste used as an excuse to unfairly deny filing of the amended factum), a clerk replied to the plaintiff indicating she could not submit the application or supporting affidavit unless she removed reference to anything but leave to appeal.
The plaintiff had previously told the court on several occasions that this application seeking leave to appeal, adjournment and format of hearing during the pandemic was forthcoming and that she had put significant effort into it and already paid for it. Opposing counsel Mr. Mack, in fact, put the plaintiff to the task of writing a formal application for part of this relief because he unreasonably refused to consent to an adjournment or accommodate the self-represented plaintiff's unique needs during the pandemic. Mr. Mack also refused an adjournment despite that he has delayed this case significantly with his own adjournment requests.
There is currently another issue, just learned this morning, which involves a justice assigned to hear the upcoming full appeal, Justice Marina Paperny. A recusal application, given a series of concerning issues over many years, will be posted on this blog shortly. Part of this issue involves the possibility that Mr. Mack may have engaged in judge shopping (again).
Update: It has been confirmed the appeal panel, chaired by Justice Paperny, directed the clerks to reject the plaintiff's application, below, from being filed.
“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.
Access to justice for self-represented persons requires all aspects of the court process to be…convenient and accommodating. …Scheduling should take into account the special challenges and needs of self-represented persons.”
- Statement of Principles on Self-represented Litigants, endorsed by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23
INTRODUCTION AND RELIEF SOUGHT
Overview
Epidemic within a
Pandemic
1.
This is the memorandum of argument of the Applicant/Appellant/Plaintiff
for her application seeking, among other relief: (a) permission to appeal a single
justice’s interlocutory decision originating with the case management officer’s
unfair refusal to file the Applicant’s critical amended appeal materials
despite that the Applicant met the filing directions, with minor reasonable deviation
that was rectified immediately; and (b) adjournment and accommodated hearing
format for the Applicant’s appeals 1901-0078AC & 1901-0179AC in light of
the current COVID-19 pandemic.
2.
It is well known that access to justice is
the most significant challenge that courts face today, and that self-represented
persons suffer the most serious prejudice when they are denied access to
justice. The issue of self-represented persons now accounting for roughly half
of all litigants in courts today and the access to justice issues they face has
been called an epidemic.
3. In Pintea v. Johns, 2017 SCC 23, the Supreme Court of Canada endorsed the Statement of Principles on Self-represented Litigants which promotes access to justice for self-represented persons. Despite this decision, many judges and other justice system participants do not apply the Principles consistently which results in varied case outcomes.
4.
Some of these Principles which are
central to the present application issues include:
·
“Self-represented
persons should not be denied relief on the basis of a minor or easily rectified
deficiency in their case”;
·
“Judges
should ensure that procedural and evidentiary rules are not used to unjustly
hinder the legal interests of self-represented persons”;
·
“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”;
·
“Access
to justice for self-represented persons requires all aspects of the court
process to be, as much as possible, open, transparent, clearly defined, simple,
convenient and accommodating”;
·
“Scheduling
should take into account the special challenges and needs of self-represented
persons”; and
·
“Members
of the Bar are expected to be respectful of self-represented persons and to
adjust their behaviour accordingly when dealing with self-represented persons,
in accordance with their professional ethical obligations… Members of the Bar
may be guided by the Canadian Bar Association’s Code of Professional Conduct
and the codes of each jurisdiction.”
5.
The primary issues in the present
application are related to the epidemic of self-representation and denial of
access to justice experienced by the self-represented Applicant. These issues
arose during the current COVID-19 pandemic and immediately before. Thus, the
application issues concern an epidemic within a pandemic, and should be treated
with equally heightened attention. While the pandemic is changing the way
justice is administered, the Court must accommodate self-represented persons’
unique needs in the spirit of the Principles. A pandemic does not
suspend access to justice rights.
6.
The events leading to the permission to
appeal application involve the Court of Appeal’s case management officer,
Laurie Baptiste, refusing to file the self-represented Applicant’s amended factum
with critical additional facts and argument despite that the Applicant submitted
it on the directed deadline, albeit by email and with hardcopies prepared the
next morning. Ms. Baptiste refused to file the amended factum at the request of
opposing Respondents/Defendants counsel Perry Mack and after he read the
amended factum and noted its strength. Subsequent to this, Ms. Baptiste once
again failed to honour her own directions when she refused to file the Applicant’s
amended list of authorities despite that Ms. Baptiste originally said the
Applicant could file it instead of the amended factum.
7.
When the Applicant applied to a single appeal
justice in accordance with the Rules to rescind the unfair directions and
refusals of Ms. Baptiste, The Honourable Justice Peter Martin (“the learned
appeal justice”) erred in failing to allow the amended appeal materials to be
filed in the circumstances. As explained in later sections of the within memorandum,
the learned appeal justice’s errors originated with misapprehension of facts regarding
the Applicant’s application seeking to rescind Ms. Baptiste’s direction, and were
compounded by further errors including errors in law.
8.
The secondary application issue involves the
Applicant’s request for adjournment and accommodation of hearing format
required for her unique needs as a self-represented person. Opposing counsel
Mr. Mack unreasonably refused to consent to her requested adjournment and
hearing format preference of a non-videoconference format. Without any valid
reason given, Mr. Mack wrote to her: “We will oppose an adjournment.”
This is also despite that Mr. Mack has delayed the entirety of this case by
years with his repeated adjournment requests and prohibited judge shopping.
9.
The self-represented Applicant will be
denied her right to procedural fairness and full participation in her upcoming
appeals, which are aspects of access to justice, unless (a) she is granted permission
to appeal for the appeal panel to determine for themselves whether her amended
appeal materials should be considered for their informed adjudication; and (b)
she is granted an adjournment and appeal hearing format that is accommodating
to her unique needs as a self-represented person during these extraordinary pandemic
times.
Full Relief Sought
10.
The Plaintiff/Applicant/Appellant seeks
the following relief for her consolidated appeals 1901-0078AC/1901-0179AC:
(a)
Permission to appeal from the learned appeal justice for the
Applicant to appear before the appeal panel to hear the Applicant’s application
seeking leave to file her amended factum and amended list of authorities which
were denied filing by the Case Management Officer Laurie Baptiste despite that
these materials were submitted in accordance with Ms. Baptiste’s directions
with minor procedural irregularity of submitting the amended factum by email on
the deadline, but which was rectified immediately by preparation of the factum hardcopies
the next morning;
(b)
Acknowledgements stating that:
i.
The Case Management Officer Laurie Baptiste advised by email
correspondence on July 2, 2019 [Applicant Affidavit] that “Both parties may file combined factums
dealing with both appeals of not more than 42 pages” [42 pages being
the combined allowable page count for the consolidated standard appeal and fast
track appeal];
ii.
Ms. Baptiste directed that the Applicant’s deadline to file her
amended factum was October 1, 2019;
iii.
The Applicant submitted her amended factum by email to Ms.
Baptiste and opposing Respondents/Defendants counsel Perry Mack on October 1,
2019 at 4:02pm;
iv.
Mr. Mack wrote to Ms. Baptiste on October 3, 2019 seeking that Ms.
Baptiste refuse filing of the Applicant’s amended factum and, thereafter, in
October 8 2019 correspondence, Ms. Baptiste denied filing of the Applicant’s
amended factum.
v.
Mr. Mack wrote in his October 3, 2019 correspondence to Ms.
Baptiste that the Respondents would not be prejudiced by the Applicant filing her
amended factum and, yet, Ms. Baptiste made no mention of this in her October 8,
2019 direction correspondence.
(c)
The order
arising from the corrigendum decision May 7, 2020 shall be filed pursuant to
Rule 9.5(2) which states an order can not be entered more than 3 months after
pronouncement without the Court’s permission and on application. This relief is
necessary as the learned appeal justice did not respond to the Applicant’s
three letters [Applicant Affidavit] she sent him over three months requesting a
corrigendum for correction in his decision, which was required before
preparation of an order;
(d)
The appeal hearing presently scheduled in
September 2020, is adjourned to a date in November or December 2020, or shortly
thereafter, in consideration of the pending outcome of leave to appeal by this
Court or, alternatively if necessary, the Supreme Court of Canada, noting that
the Supreme Court of Canada resumes normal operations and lifts pandemic
application timeline restrictions effective September 14, 2020. This will enable
the Applicant reasonable time and opportunity to file for leave to appeal from,
and receive decision from, the Supreme Court of Canada seeking to file her
Court of Appeal amended materials. Alternatively, in the event permission to
appeal is granted by this Court, there will be no need for the Applicant to seek
leave to appeal from the Supreme Court of Canada as deference should be given
to the Court of Appeal panel as they are in the best position to determine for
themselves whether the amended factum and amended list of authorities should be
considered for the appeal they will adjudicate;
(e) The appeal hearing will be held by a non-videoconference format, given technical issues and other reasons, and shall proceed, preferably, in an in-person format with the parties respecting social distancing and mask protocols;
(f)
The September 2020 appeal hearing date shall
be re-allocated to the purpose of the appeal panel hearing the Applicant’s
permission to appeal application, if granted, and to provide direction on,
among other things, the format for the appeal hearing given that the Applicant
requires sufficient time for oral argument for her appeal of three related
decisions each involving extensive errors made by Justice Michele Hollins and,
accordingly, many grounds of appeal;
(g) The Respondents/Defendants’ 84 pages of additional argument appended to their factum is struck, as it does not comply with factum page limits set out in the Rules and opposing counsel Mr. Mack did not seek permission to file an additional 84 pages of argument. It is an abuse of process to file a factum greatly exceeding page limits prescribed by the Rules without permission, while at the same time seeking that the case management officer Ms. Baptiste and the Court deny filing of the Applicant’s amended factum with a page count she had already received permission to file.
THE FACTS
Proceedings below
11.
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 (see, for example, Quebec Director
of Criminal and Penal Prosecutions v Jodoin, 2017 SCC 26). 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, 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.
12.
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 omitted the Applicant’s causes of action, critical facts
and evidence. Justice Hollins’ rulings on these applications are completely
void of any meaningful analysis or application of binding appellate law. She
further egregiously allowed outrageous excessive costs significantly departing
from jurisprudence, and admitted she made the costs order arbitrarily and
intended for the Applicant to appeal it.
13.
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 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. In furthered continuance
of her connection with the CBA, Justice Hollins profusely markets for, and
promotes, the CBA on her social media Twitter account (and tweets she has
deleted can nevertheless be found on the Tweet Tunnel website).
14. Justice Hollins failed to make any disclosures on the record of potential conflicts of interest before hearing applications in this case 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 this is 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, which sets out mandatory disclosure requirements by judges where there are potential conflicts of interest, now called the “Carbone principle”: Kissel v Rocky View (County), 2020 ABQB 406 at paras. 166 and 171.
The Court of Appeal interlocutory
applications
15.
Some of these facts are contained in the
Applicant’s application to rescind the case management officer Ms. Baptiste’s
refusal to file her amended factum [Applicant Affidavit – Exhibit “A”], and the
Applicant’s application to rescind the case management officer Ms. Baptiste’s
refusal to file her amended list of authorities [Applicant Affidavit – Exhibit
“B”]. These facts are repeated here to provide context and for the benefit of
the appeal panel, should permission to appeal be granted. The full facts of
these application matters are contained in the original applications.
16.
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.
17.
The Applicant filed her factum on
September 20, 2019. Her proposed amended factum [Applicant Affidavit – Exhibit “E”]
provides further critical facts, argument and case law 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]. 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].
18.
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.”
19.
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 various relevant facts and misstated facts [Applicant
Affidavit].
20.
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.
21. 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 [Applicant Affidavit].
22. With respect to the second unfair denied document filing, on December 5, 2019 Ms. Baptiste refused to file the Applicant’s amended list of authorities, despite that Ms. Baptiste’s October 8, 2019 letter advised the Applicant could file a list of authorities instead of the Applicant’s proposed amended factum. Ms. Baptiste stated it would have had to have been filed by October 15, 2019. The Applicant could not have previously considered solely filing a list of authorities instead of her amended factum by October 15, 2019 given her stated intention on October 8, 2019 to make an application before a Justice to review Ms. Baptiste’s direction concerning the amended factum. [Applicant Affidavit].
23. The Applicant simply wished to ensure the appeal panel has at minimum a list of authorities she relies on in advance of the appeal hearing. Several unrelated decisions of this Court rejecting appeals noted that, as a factor, an authority was not provided on a given issue.
24. The Applicant applied to a single appeal justice to rescind the unfair filing refusals by Ms. Baptiste, pursuant to Rules 14.36(3) and Rule 14.73(b). On December 4, 2019 the learned appeal justice denied the Applicant’s application without providing concrete reasons. The vague reasons that were given suggested something to the effect of the applicant not meeting a deadline or factum page direction, which is not correct as the Applicant submitted the amended factum on the October 1, 2019 deadline, albeit by email and with hardcopies prepared the next morning, and according to Ms. Baptiste’s July 2, 2019 direction advising both parties could file 42-page amended factums as the two appeals were combined [Applicant Affidavit, Exhibit “H”]. The only deviation from procedural rule was that the Applicant sent her amended factum on the deadline by email, but she immediately rectified the issue of absence of hardcopies by preparing them the next morning before Ms. Baptiste denied them. There is no reference to these important facts in the learned appeal justice’s decision.
25. The learned appeal justice further denied the Applicant’s application to rescind Ms. Baptiste’s direction refusing to file the Applicant’s amended list of authorities. No reasons were given by the learned appeal justice in respect of this particular application. He simply gave a blanket statement indicating her 96 amended authorities could not be filed. Thus, it is submitted that this application, which the Applicant paid for, was not adjudicated pursuant to the Rules.
26.
The Applicant wrote to the learned appeal
justice several times over the three following months after the decision,
seeking corrections and clarification by way of corrigendum, but there was no
response by the learned appeal justice and it was necessary for the Applicant
to bring this issue to the Chief Justice’s attention [Applicant Affidavit], at
which point the learned appeal justice issued a corrigendum correcting some of
the errors. By the time the corrigendum was issued in May 2020, it was out of
time to file the order for the decision pursuant to Rule 9.5(2), which states an order can not be
entered more than 3 months after pronouncement without the Court’s permission
and on application.
27. The Applicant believes it is critical for the appeal panel to have her amended appeal materials for informed adjudication. Accordingly, after the corrigendum issuance in May 2020, the Applicant ordered the transcript of proceedings for the December 4, 2019 hearing in preparation for her application for permission to appeal the learned appeal judge’s decision to the appeal panel. The Applicant wishes for it to be noted she observed a considerable number of discrepancies from the actual words spoken at the proceedings, with some sentences omitted from the transcript. The Applicant raised some of the discrepancies with Transcript Management Services but no corrections were made.
THE
LAW AND ARGUMENT
Permission
to Appeal
28. The test governing a permission to
appeal application under Rule 14.5(2) is whether there is:
(a)
a question of general importance;
(b)
a possible error of law, principle, or
jurisdiction;
(c)
an unreasonable exercise of discretion;
or
(d)
a misapprehension of important facts.
29. It is respectfully submitted that there are questions of general importance supporting permission to appeal and that the learned appeal justice erred in all criteria under the test.
Questions of General
Importance
30.
There are two questions of general importance.
Currently, there is significant inconsistency in the application of the Principles
stated in the Statement of Principles on Self-represented Litigants by
judges and court staff, resulting in different outcomes in similar circumstances
where there are minor errors or procedural irregularities that can be easily
rectified. This creates misunderstood expectations and perceived unfairness by self-represented
persons. Clarification of these questions of general importance will both
assist this Court in consistently applying the Principles in the future
where there are minor errors or procedural irregularities, and set reasonable expectations
for self-represented persons so that they are clear on their obligations and
when the Court may accommodate them so that they are not denied procedural
fairness and, thus, access to justice.
31.
Question of General Importance #1:
To what extent should the Court accommodate self-represented persons with
respect to minor errors or procedural irregularities that can be easily
rectified, so that the Court is properly applying the following Principles
from the Statement of Principles on Self-represented Litigants endorsed
by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23?:
(a)
“Self-represented persons should not be denied
relief on the basis of a minor or easily rectified deficiency in their case”;
(b)
Judges should ensure that procedural and
evidentiary rules are not used to unjustly hinder the legal interests of
self-represented persons”; and
(c)
“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.”
32.
It is submitted the answer to Question #1 should be
the Court should accommodate all self-represented persons on all minor errors and
reasonable deviations of procedure that can be easily rectified, to ensure they
are not denied procedural fairness and access to justice. The exception should
be where a self-represented person has clearly not made efforts to meet their
obligations under the Rules. Where a self-represented person is unclear on
their obligations under the Rules, clarification should be provided along with
the opportunity to correct the deficiency with appropriate accommodation granted
by the Court. Further, where a minor error or procedural irregularity can not
be easily rectified, the consequence should not be exceedingly disproportionate.
33.
Question of General Importance # 2: Should the Appellant’s
submission of her amended factum to the case management officer Laurie Baptiste
and opposing Respondents/Defendants counsel Perry Mack on the directed deadline
of October 1, 2019, albeit by email and with hardcopies prepared the following
morning, qualify for the accommodation in the specified Principles in
Question of General Importance #1, with the result being the amended factum should
be permitted and, if not, why?
34. While this question states facts specific to the case at hand, it expands on the first question of general public importance and therefore it, too, has broad application that transcends the immediate case. The Applicant submits the answer should be “Yes”. There was a minor and reasonable deviation from court procedure, being that the Applicant submitted the amended factum by sending it as an attachment in an email to Ms. Baptiste and Mr. Mack, rather than filing it in hardcopy format because it could not be professionally printed in time due to a miscalculation by the Applicant on expected printing time. The most important factors are that the Applicant made efforts to meet court procedure by submitting the amended factum electronically on the deadline of October 1, 2019 as shown by the evidence [Applicant Affidavit], and the matter of hardcopies for filing was easily rectified when the Applicant promptly had seven hardcopies of the amended factum prepared the following morning (at significant expense to her), and before Ms. Baptiste denied its filing at opposing counsel Mr. Mack’s request. The Applicant made sure she met all prior filing deadlines for appeal documents. It is also significant that Mr. Mack read the Applicant’s amended factum and used it to strategically prepare his reply factum, clearly putting the Applicant at an unfair disadvantage as she could not rely on her own amended factum while Mr. Mack and the Respondents could. Further, Mr. Mack had admitted there was no prejudice to the Respondents if the Applicant’s amended factum was filed [Applicant Affidavit], yet Ms. Baptiste conveniently ignored this. The effect of denying filing of the Applicant’s amended factum has the disproportionate serious consequence of the Applicant being denied full participation in her appeal and the appeal panel not having this critical material for informed adjudication.
Misapprehension
of important facts
35.
It is respectfully submitted the learned
appeal justice erred by misapprehending important facts, when he failed to acknowledge
all of the significant and specific errors made by Ms. Baptiste the
Applicant pointed out in her memorandum of arguments for the applications.
36.
The learned appeal justice misapprehended
important facts on the Applicant’s application seeking to rescind Ms. Baptiste’s
direction refusing to file her amended factum. Ms. Baptiste had earlier advised
the parties in email correspondence dated July 2, 2019 that “Both parties may
file combined factums dealing with both appeals of not more
than 42 pages” [Applicant Affidavit] because it was decided the two
appeals would proceed together. 42 pages is the combined page count for the standard
appeal (max. 30 pages) and the fast track appeal (max. 12 pages). At the December
4, 2019 hearing before the learned appeal justice, he incorrectly stated the
purpose for the application hearing, “You did not have a right to file an
amended factum of 42 pages. That's why we're here today. That's what we're here
to discuss.” [Transcript of proceedings p. 8, lines 37-39]. The Applicant told
him that Ms. Baptiste told the parties they could file 42-page amended factums
as this was the combined page count for the standard and fast track appeals [appears
to be omitted from transcript]. The learned appeal justice replied he did not
know this [appears to be omitted from transcript].
37.
The learned appeal justice discussed at
length his disapproval of a 42-page amended factum and stated it should be more
concise, disregarding that the case management officer in fact directed the
factums for the parties could be 42 pages. The Applicant tried to explain to
him that the facts and argument that were in the amended factum were primarily to
provide additional critical facts, argument and case law for the amendments,
striking and costs application, and that without this content the factum
appeared to be primarily about the recusal application issues. The focus of the
appeals is not just the recusal application; all of the application errors raised
equally important grounds.
38.
Further, although the Applicant’s amended
factum may not be concise or polished by lawyer standards, it does not need to
be. She is self-represented, has no legal training, had to deal with Justice
Hollins’ three separate egregiously unfair decisions in the timeframe normally
allotted for one appeal, and found it challenging to deal with the enormity of
the serious errors in three appeals within the timeframe normally given for one
appeal, and in circumstances expected by a self-represented person.
39. The learned appeal justice further erred in important facts when he minimized the necessity of case law in a factum and made statements to the effect that judges know the case law and do not need it presented to them in appeal materials, which is evident from the transcript. The Applicant respectfully disagrees as, while some judges may not prefer to examine case law extensively, other judges rely more heavily on case law and this varying style is reflected in judges’ decisions.
Error
of law, principle, or jurisdiction
40.
It is respectfully submitted the learned
appeal justice erred in law and principle when he failed to properly apply these
Supreme Court-endorsed Principles in the Statement of Principles on
Self-represented Litigants to ensure the Applicant was not denied access to
justice:
·
“Self-represented
persons should not be denied relief on the basis of a minor or easily rectified
deficiency in their case”;
·
“Judges
should ensure that procedural and evidentiary rules are not used to unjustly
hinder the legal interests of self-represented persons”; and
·
“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.”
41.
The Applicant corrected the minor
deficiency of submitting the amended factum by email instead of hardcopies
which she prepared the next morning. The learned appeal justice’s denial of
filing the Applicant’s amended factum and amended list of authorities was unfair
and the disproportionate consequence that the appeal panel does not have the
information before them for informed adjudication can result in an unfair
outcome.
42.
It is also an error of law to deny
procedural fairness. It is the Applicant’s
procedural right to put her important amended appeal materials before the
appeal panel for informed appeal adjudication.
43.
Failing to accommodate a self-represented
person is a matter of procedural fairness: Pintea
v. Johns, 2017 SCC 23.
44.
In Trial Lawyers Association of British
Columbia v. British Columbia (Attorney General) – 2014 SCC 59, the Supreme
Court of Canada stated:
I agree with the trial judge that courts must
be careful, in situations involving self-represented litigants, not to appear
to refuse relevant evidence (para. 19).
45.
Further, the learned appeal justice erred
in jurisdiction by making statements in his decision that he has never seen 20
grounds of appeal, as if this was somehow a reason to deny filing of the
amended factum. A thorough review of the Applicant’s Extracts of Key Evidence, her
amended factum and amended list of authorities makes clear Justice Michele
Hollins’ errors are egregious and extensive and that the number of grounds of
appeal put forward by the Applicant is entirely reasonable. It is up to the
appeal panel to make determinations on the grounds of appeal in the
circumstances. It is also submitted that the learned appeal justice erred in
jurisdiction by assuming to determine what the appeal panel would want or need
to see for the appeals. Again, this determination must be made solely by the appeal
panel adjudicating the appeals.
46. It is a further error of law that the learned appeal justice did not adjudicate the Applicant’s second application seeking to file her amended list of authorities. Instead he made a blanket statement denying the filing without any regard for the Applicant’s submissions. An application must be adjudicated by a justice in accordance with the Rules of Court.
Unreasonable
exercise of discretion
47.
It is respectfully submitted it was an
unreasonable exercise of discretion for the learned appeal justice to refuse
filing of the amended factum as the Applicant submitted it on the directed October
1, 2019 deadline by email and corrected the procedural deficiency by preparing
hardcopies the next morning. It is a disproportionate consequence to deny a
fair and informed appeal adjudication because of a minor procedural deficiency
which was easily and immediately rectified.
48.
It was further an unreasonable exercise of
discretion to award costs against the Applicant when she was simply seeking to correct
Ms. Baptiste’s unfair filing refusals. The Applicant reasonably met all filing directions
for her amended factum and amended list of authorities and she should not be
penalized with costs because Ms. Baptiste refused to honour her own directions.
49.
In addition, it appears from the transcript
of proceedings and the vague reasons in his decision that a reason the learned
appeal judge would not allow filing of the amended factum is he personally
disagreed with a 42-page length factum. However, the maximum page length of 42
pages for the combined factums for both parties was directed by Ms. Baptiste
and the Applicant was simply following her instructions.
50.
The fact that a complete and thorough
factum is critical to an appeal is also confirmed in the recent May 21, 2020 Fireside
Chat video wherein the Honourable Chief Justice Fraser speaks with the
Advocates’ Society about the Court’s response to the COVID-19 pandemic, and also
reviews continued key aspects of appeals, including that the factum is the most
important argument to an appeal and that the appeal panel will have read it in
advance of the hearing and formed conclusions based on it.
51.
It is also noteworthy that email and fax submission
of appeal documents is the only filing method allowed by this Court during the
pandemic. Had the pandemic started a few months earlier, the submission of the Applicant’s
amended factum by email would have been consistent with the new norm. Further,
this Court recently announced its new electronic filing system called CAMS is currently
being implemented, which digitizes appeal documents in electronic form.
Additional considerations
warranting filing of the amended appeal materials
52.
The most important factor in any decision
is the interests of justice. The Applicant will be clearly prejudiced if the
appeal panel does not have her amended appeal materials before them for
informed adjudication of the appeal issues. It also highly prejudicial and
contrary to the interest of justice for Mr. Mack to have the ability to rely on
the Applicant’s amended factum for strategic preparation of his reply factum,
while the Applicant can not rely on her own amended factum.
53.
It must be noted that a new decision made
this year is highly relevant to the Applicant’s appeal matters and warrants
that it should be allowed as part of the Applicant’s amended list of authorities
[Applicant Affidavit – Exhibit “J”]. A decision from the Office of the Information
and Privacy Commissioner (OIPC) found Gowlings guilty of a privacy offence for
unlawfully obtaining an opposing litigant’s credit report. The
lengthy decision also makes clear it rejected Gowlings' purported reason for
obtaining the opposing litigant's credit report. It
is the Applicant’s understanding the Gowlings lawyer responsible for this
offence is Taryn Burnett [Applicant Affidavit]. The circumstances are almost identical
to the Respondents/Defendants Gowlings and Ms. Burnett’s unlawful obtaining of
the Applicant’s credit report which involves significant issues to be dealt with
on appeal in order to prevent Justice Hollins’ irresponsible decision from
putting all citizens’ private credit and financial information at risk. Justice
Hollins completely ignored the Applicant’s intrusion upon seclusion pleadings and
evidence and the Respondents’ complete lack of any evidence.
In
the P2020-03 - Case File Number 003980 decision against
Gowlings [Applicant Affidavit-Exhibit “J”, Authority #97], the OIPC stated in part:
[para 151] Taking all of the foregoing circumstances into account, and the arguments of the parties, I find that the Organization’s collection of the credit report was not reasonable for the purposes of a legal proceeding, and that it did not have authority to collect the Complainant’s personal information in the credit report without consent under section 14(d).
[para 163] ...[C]ollecting personal information from a reporting agency outside of the circumstances enumerated in section 44 of the CPA is prohibited and constitutes an offence. As I have found that the credit report was obtained in circumstances in which this was not permissible under the CPA, and would constitute an offence, it seems obvious to me that the information was not collected to a reasonable extent.
[para 164] Therefore I find that the Organization collected the Complainant’s personal information in contravention of section 11(2).
[para 165] Since the Organization collected the Complainant’s personal information beyond a reasonable extent, it follows that any subsequent uses and disclosures were also beyond a reasonable extent. I find that the Organization used and disclosed the Complainant’s personal information in contravention of sections 16(2) and 19(2).
54.
It should
also be noted that the OIPC made two decisions in the Applicant’s favour
against Gowlings [Applicant Affidavit, Exhibit "J", Authority Nos. 84 & 85]
in privacy legislation matters relating to the Applicant’s intrusion upon seclusion court claims. These OIPC
decisions are Section 37 Decision #003172, which ordered Gowlings to respond to
the Applicant’s access request for records containing, and relating to, her
credit and financial personal information, which Gowlings sought to refuse; and
OIPC Breach Notification Decision
Adjournment
and Hearing Format
55.
We are in extraordinary times with the COVID-19
pandemic and the Court must be flexible with self-represented persons and
accommodate with comfortable hearing formats and adjournments where necessary
to meet their unique challenges.
56.
Granting the self-represented Applicant an
adjournment and granting her request for an in-person hearing format is also
consistent with the Supreme Court of Canada-endorsed Statement of Principles
on Self-represented Litigants, which states with respect to scheduling accommodation
of self-represented persons:
Access to justice
for self-represented persons requires all aspects of the court process to be…convenient
and accommodating. …Scheduling should take into account the special challenges
and needs of self-represented persons.
57.
The Court’s letter of August 13, 2020
regarding hearing formats indicates that a party to an appeal can request an
in-person hearing format and may also request an adjournment. The Court should consider
each request on a case by case basis. It is appropriate to grant an in-person
format in the present case, where the parties can observe physical distancing
and mask pandemic protocols.
58.
An adjournment is required and a videoconference
hearing format will not work for the Applicant due to technical [Applicant
Affidavit] and other issues. A hearing format that is not in-person will be
unfamiliar and cumbersome for her. The Applicant does not feel comfortable presenting
in a hearing format of videoconference or teleconference format. The appeal
hearing is extremely important to the Applicant and she should not be subjected
to stresses of presenting in an unfamiliar hearing format that is uncomfortable
for her that could negatively affect her presentation and therefore the appeal
outcome. There are also issues regarding noise that are out of the Applicant’s
control favour an in-person hearing over a videoconference or teleconference
format. There are also no geographical limitations requiring a remote hearing;
both parties can attend in person.
59.
It is significant that the Applicant’s
appeal hearing is scheduled for the first day of appeal hearings in this city,
after the Court’s return from summer hiatus. It is unfair to implement new hearing
technology with videoconference and teleconference formats of appeal with a
self-represented person. There may be several technology glitches that need to
be sorted out with an actual appeal and now is not the time for experimentation
with a self-represented person.
60.
In a recent article about improving the
justice system in the wake of COVID-19, the former Chief Justice of the Supreme
Court of Canada Beverley McLachlin expressed optimism about the use of
technology while also cautioning that virtual environments can create problems
for access to justice (“Access to Justice: Visionary thinking to update a
legacy system”, Lawyers Daily, 12 May 2020). She stated:
We have learned that while technology is invaluable, we need to be smart
about how we use it. Technology can actually be an impediment to people getting
justice if they don’t have a computer or the bandwidth to use it. Some things
still are best done in a room with all the players face to face. Using video
links can pose issues for privacy and press access to judicial proceedings.
We need to think through what needs to be done in real courtrooms, and what can
be dealt with virtually. When we go virtual, we need to be careful that we are
not creating new problems or undermining core principles of the justice system.
We can’t just blindly digitize existing processes in the hope it will make
things more efficient. We need to think through how it will work on the ground
and what new problems it may create.
61.
While teleconference would be preferred
over videoconference for the Applicant, it is important that the applicant be
able to see the judges. Even if the Applicant did not have technical issues, videoconference
would not achieve this properly because it would be too difficult to observe three
judges in different “windows”, an issue Chief Justice Fraser mentioned in the Fireside
Chat video is a challenge with a videoconference format even for lawyers. Certainly,
if there are challenges for lawyers with the new videoconferencing format, it
will be even more challenging for self-represented persons.
62.
Further, it would be a denial of
procedural fairness and due process to refuse an in-person hearing in the circumstances.
63.
This Court recently announced electronic
hearings will continue until at least November 1, 2020. This implies hearings
formats will be reviewed at that time. It is possible that it will be
determined at that time that in-person hearings can be expanded and the Applicant
prefers a hearing date in November or December 2020, as she earlier advised Mr.
Mack.
64.
This Court has allowed other cases to be
adjourned due to the pandemic. This flexibility must be offered to self-represented
litigants who stand to be most adversely impacted by a radically changed appeal
hearing format. Adjournment can not be denied because opposing counsel seeks to
put the Applicant at an unfair disadvantage, as in the present case.
65.
In addition, the Applicant requires an
adjournment in order that she be able to pursue her leave to appeal rights
seeking to have the appeal panel have her amended appeal materials before it for
informed adjudication. There is a significant risk that if the appeal panel
does not have the amended appeals before them there will be an unfair outcome. If
permission to appeal is not granted by the learned appeal justice, she should
have the opportunity to alternatively seek leave to appeal from the Supreme
Court of Canada, which lifts pandemic suspension of application time limits, including
for leave to appeal, on September 14, 2020. If the learned appeal justice does
grant leave to appeal to the appeal panel, it would not be necessary for the
Applicant to seek leave to appeal from the Supreme Court in any event, as the
appeal panel is in the best position to determine the materials it should
consider for the appeals it is adjudicating.
66.
Some law firms have appropriately recognized
the unique challenges faced by self-represented litigants for remote video
hearings and acknowledged they be accommodated. The Bennett Jones paper about
videoconferencing technology surrounding the pandemic, “Imagining the Ideal
Video-Conferencing Solution for Hearings, Arbitrations, Mediations, Depositions
and Corporate Meetings paper”, May 2020, states in the “Self-represented
Litigants” section:
Despite their wide diversity
of backgrounds, self-represented litigants are consistently overwhelmed by
court procedures…Online and virtual platforms do not guarantee improvements for
self-represented litigants in navigating the court process…Existing online
resources—which may include an abundance of rules, checklists, and guidance
documents for each step in the litigation process—require a level of understanding
and knowledge to be useful. Resources and literacy, both legal and
technological, stand to affect a self-represented litigant’s substantive case
outcome. [Emphasis added.]
The paper further states in the “Best Practices”
section that lawyers should be flexible, and accommodating, and respect the
challenges of self-represented litigants:
Lawyers:
Civility – Cooperation – Collaboration
Counsel bear the following obligations to ensure the just, fastest,
and least costly resolution of matters in the context of electronic hearings:
To be flexible and to accommodate at all times, where such accommodation does not affect the merits of the case or result in prejudice to the client’s rights, technical difficulties and other challenges arising from working from home, and the unique challenges faced by self-represented litigants;
67.
Unfortunately, opposing counsel Mr. Mack
has demonstrated he is not amenable to practicing this civility or
accommodation where unique challenges are faced by self-represented litigants. When
the Applicant wrote to Mr. Mack about some of her concerns with respect to a
videoconference format and with respect to adjournment being required in part
due to the learned appeal justice’s delay with the corrigendum which affected
her leave to appeal timeline with the present appeal hearing date in mind, and asked
for his consent for an adjournment and also for a non-videoconference format,
he refused and replied without any valid reason: “We will oppose an adjournment,”
thus putting the Applicant to the task of making the within application for
adjournment and hearing format. Thereafter, the Court wrote to the parties on
August 13, requesting their positions on any adjournment and appeal hearing
format. Mr. Mack wrote to the Court on August 17 requesting the hearing be
scheduled on the same date and by videoconference, with no mention that the
Applicant earlier requested his consent for the opposite. In a variety of
circumstances, Mr. Mack has sought to put the self-represented Applicant at a
disadvantage.
68.
It is also significant that Mr. Mack has
been granted numerous adjournments for the Respondents in the course of the
proceedings, including at this Court. Mr. Mack’s significant delays and
adjournments are indicated in the Applicant’s amended factum. Mr. Mack can not
now claim he wants to move things along and refuse a necessary adjournment in
these extraordinary pandemic times, when he has been responsible for significant
delays in this case The Applicant requests a short adjournment to November or
December 2020, which will also provide her with sufficient opportunity to
pursue leave to appeal. The Respondents will not be prejudiced by a short adjournment.
69.
In Toronto-Dominion Bank v. Hylton,
2010 ONCA 752, the Ontario Court of Appeal stated the fact the appellant was self-represented
is an important factor for an adjournment request. At para. 40 the Court noted there
was no history of delay in the proceedings on the part of the appellant and
that the respondents in fact caused delay. The Court further stated at para. 39:
Once
again, the fact that a party is self-represented is a relevant factor.
That is not to say that a self-represented party is entitled to a “pass”.
However, as part of the court’s obligation to ensure that all litigants have a
fair opportunity to advance their positions, the court must assist
self-represented parties so they can present their cases to the best of their
abilities. Linhares de Sousa J. provided a helpful list of ways to assist
self-represented litigants in Kainz v. Potter (2006), 2006 CanLII 20532
(ON SC), 33 R.F.L. (6th) 62 (Ont. S.C.), at para. 65:
[N]umerous
Court decisions have reiterated the principle again and again, that
self-represented parties are entitled to receive assistance from an adjudicator
to permit them to fairly present their case on the issues in question.
This may include directions on procedure, the nature of the evidence that can be
presented, the calling of witnesses, the form of questioning, requests for
adjournments and even the raising of substantive and evidentiary issues.
[Emphasis in cited original.]
70.
With respect to the current pandemic, Carleton
Condominium Corporation No. 476 v. Wong, 2020 ONCA 244, the Ontario Court
of appeal noted there was litigation advantage to a party with a videoconference
or teleconference format, and directed an alternative appeal format that was
amenable to both parties:
I have decided to order
that the appeal proceed in writing rather than by remote oral hearing to
ameliorate any litigation advantage that the respondents might have if a full, remote
oral hearing is ordered…In these circumstances, it would give the respondent a
litigation advantage to conduct a full oral hearing, even by teleconference,
since the respondent is not affected by similar limitations…Similarly, that
litigation advantage would arise for similar reasons if the parties were now
invited to supplement their existing written submissions with further written
arguments.
71.
Also, with respect to hearing format
during the current pandemic, in Miller v. FSD Pharma, Inc, the
Court found there were due process concerns with a videoconference format and expressed
its discomfort requiring counsel to proceed where he or she perceives that they
may not be able to present their case as effectively as they would in person.
The Court ordered an in-person hearing in the circumstances:
Plaintiff’s
counsel do not want to put their client and putative class members to that risk
in what would be a rather novel format for a complex and lengthy motion with a
heavily documented record….I would not want to hold a hearing that in its very
format raises due process questions for whichever party ends up being unsuccessful.
I admire Defendant’s counsels’ enthusiasm, and would be willing to conduct the
hearing via videoconference if both sides were willing to do so. However, I do not
think it appropriate to compel the moving party to proceed under conditions where
Plaintiffs’ counsel perceive that they may not be able to present the case as
effectively as they would in person.
72.
Whether an adjournment is allowed is a
matter of judicial discretion. However, as the Supreme Court indicated in R
v Barrette, 1976 CanLII 180
(SCC) the right of review in such circumstances is “wide when the
consequence of the exercise of discretion is that someone is deprived of his rights,
whether in criminal or in civil proceedings.”
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