Introduction and Relief
Sought
1.
This is the Memorandum of Argument of the
Applicant/Appellant/Plaintiff for her application and appeal
seeking that the assessment of bill of costs decision be set aside or, in the
alternative, that enforcement of the assessment of bill of costs decision be
stayed until the Applicant’s appeal to the Supreme Court of Canada for within
Court of Appeal action nos.1901-0078AC/1901-0179AC is resolved.
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 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, including without any legal justification applying costs column
from the underlying medical malpractice lawsuit, and admitting she intended for
the Applicant to appeal her decision. 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 was 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.
4.
Subsequently on appeal, the appeal panel
headed by Justice Marina Paperny erred in failing to adjudicate, or even acknowledge, the Applicant’s most important appeal grounds, facts, argument and supporting evidence, failed to adjudicate the matters on accepted legal
grounds, and failed to allow the Applicant the minimum mandatory time for oral argument submissions as acknowledged by this Court on October 15, 2020 [Applicant
Affidavit May 7, 2021 - “Affidavit”]. For example, Justice Paperny purported
that the Applicant had not proven her claims, despite that there is no
opportunity of testing of claims, or adjudication of them, on an amendments
application or striking application which were the applications before Justice
Hollins. 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. The Applicant’s concerns with Justice Paperny’s assignment to the appeal panel, including judge shopping for her assignment by opposing counsel Mr. Mack and the Respondents/Defendants, are well documented
in the Applicant’s filed materials [September 7, 2020 Affidavit]. Further, the
facts surrounding the criticality of the Applicant’s oral argument submissions
are well known: the case management officer Laurie Baptiste had told the
Applicant that any additional submissions she wished to make would have to be
made in oral argument before the appeal panel after Ms. 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 and with hardcopies prepared the
next morning.
5.
The Court of Queen’s Bench Review Office
denied the self-represented Applicant procedural fairness when it failed to
accommodate her scheduling requirements and unique circumstances for the
assessment of bill of costs hearing and indulged all of opposing counsel Mr.
Mack’s unfair unilateral scheduling demands. The Applicant’s appeal to the
Supreme Court of Canada should be resolved before any determination of costs.
The
Facts
6.
The majority of the
facts of the Applicant’s present application and appeal of the assessment of
bill of costs decision are set out in the email correspondence dated February
18 – March 16, 2021 between the Applicant, opposing counsel Mr. Mack, and the Court
of Queen’s Bench Review Office [Affidavit].
7.
Mr. Mack unilaterally scheduled a hearing
date of March 16, 2021 for assessment of bill of costs without the Applicant’s
consent or knowledge, or consideration of her unique circumstances including
that her Supreme Court of Canada appeal remedy is extant, that she had an
important prior scheduled appointment on Mr. Mack’s chosen hearing date, and
that she required more time to prepare for the hearing. The Applicant requested
a hearing date in June, which was available for a hearing date in the list of
dates Mr. Mack was given by the Review Office, but Mr. Mack unreasonably
refused to cooperate in the scheduling of the appointment and accommodate the
Applicant’s needs and stated he opposed any adjournment.
(a) Allowed the hearing date of March 16, 2021 that Mr. Mack scheduled without the Applicant’s consent or knowledge, or consideration of her scheduling requirements.
(b) Proceeded with the assessment of costs hearing on Mr. Mack’s chosen date of March 16, 2021, despite that the Applicant was not available on that date due to an important prior scheduled appointment on the same date and that she provided evidence of same as requested by the Review Office.
(c) Refused to consider the Applicant’s requested hearing dates, that she did not have sufficient time to prepare materials and submissions and, further, that her appeal of the Court of Appeal matters was still going before the Supreme Court of Canada which should be resolved first.
(d) After receiving the Applicant’s submitted evidence on March 10, 2021 of her conflicting appointment, the Review Office emailed the parties on March 15, 2021 advising of next available hearing dates. Despite this appearance of rescheduling the March 16, 2021 hearing date, after Mr. Mack replied to the email and complained and demanded that the hearing proceed on March 16, 2021 and that he continued to oppose an adjournment, the Review Office egregiously appeased him by emailing the parties on March 16, 2021 (the same day of the hearing that was to be rescheduled) advising the hearing would proceed on March 16, 2021. The Review Office wrote:
“Your hearing is scheduled for March 16, 2021 @ 1:30 p.m. As you have indicated you will not be in attendance at this hearing, please note that you will be notified of the Review Officer's decision after the scheduled hearing time and he has heard submissions from Mr. Mack.”
(e) After the hearing proceeded on March 16, 2021 without the Applicant, the Review Office scheduled a further hearing date unreasonably peremptory on the Applicant at Mr. Mack’s insistence and despite that it was not even possible for the Applicant to attend the prior scheduled date. The further hearing date was again set without regard for the Applicant’s availability and circumstances.
The Law and Argument
9.
The Court of Queen’s Bench Review Office
breached procedural fairness when it denied the Applicant an opportunity to be
heard on the bill of costs and proceeded with Mr. Mack’s unilateral and unfair
scheduling demands, with the appearance of determination to move forward with
its judgment. Depriving a party of its opportunity to make submissions and
giving the appearance of predetermining issues requires appellate intervention:
Brown v. Canada (Attorney General), 2013 ONCA 18 at paras. intro and 53: “He effectively deprived the defendant of an opportunity to make submissions on whether the causes of action in breach of fiduciary duty and negligence, as framed by the case management judge, were viable…I do not think it can be safely said that the respondent had an adequate opportunity to respond.”
Nazarewycz v. Dool, 2009 ABCA 70 at para. 76 and 77: “These remarks and directions, without notice or opportunity for argument, gave rise to an appearance that he was predisposed against the appellant and his counsel, and had prejudged certain issues…It seems evident that the chambers judge had made up his mind and had determined to move forward with his judgment, including dealing with the matters that had never been raised and with respect to which counsel had no opportunity to make submissions.”
10.
The
Supreme Court of Canada and the Federal Court of Appeal have both recognized
the importance of employing a fair process and accommodating self-represented
persons in matters of scheduling in order to strike a balance with resolving
matters expeditiously. The Statement of Principles
on Self-represented Litigants, endorsed by the Supreme
Court of Canada in Pintea v. Johns, 2017 SCC 23, promotes access
to justice for self-represented persons, and states in part:
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.
Similarly, in Wagg v. Canada, 2003
FCA 303, the Federal Court of Appeal stated at para. 61:
…Trial judges have a responsibility, particularly when dealing with unrepresented litigants, to strike a balance between the desire to resolve matters expeditiously, and the need to adjudicate cases in a principled manner that employs a fair process and preserves the appearance of justice.
11.
Appeasing a lawyer’s unfair unilateral
scheduling demands that oppress a self-represented person and appeasing lawyer
sense of entitlement, as in the present case, undermines the public’s
confidence in the administration of justice. The ease with which Mr. Mack
merely emails or telephones court staff, as in the present matter wherein Mr.
Mack complained and demanded the Review Office reverse its rescheduling of the
hearing date back to his demanded date after it advised of other hearing dates,
and previously, with Mr. Mack’s communication urging Ms. Baptiste at this Court
to refuse the Applicant’s amended factum leading to a miscarriage of justice,
should be cause for concern by all court participants.
12.
While the Applicant does not propose to
argue in the current application and appeal the details of Mr. Mack’s sought
bill of costs, because the Applicant did not have the opportunity to do so as
she was entitled in the first instance before the Review Office, the Applicant
advises that one example requiring her submissions is the issue of Mr. Mack’s
arbitrary picking of Court of Appeal matter column costs which are not warranted.
13.
Granting
the self-represented Applicant her requested relief in this matter of denied
procedural fairness is consistent with the Statement of Principles on
Self-represented Litigants endorsed by the Supreme Court of Canada in Pintea
requiring that judges “do whatever is possible to provide a fair and impartial
process and prevent an unfair disadvantage to self-represented persons.”
