Below is the brief of the plaintiff filed on June 30, 2021 at the Court of Queen's Bench regarding the bill of costs matter, involving the Review Office's denial of the plaintiff's right to be heard and the tactical maneuvering by opposing defendants' counsel Perry Mack. This proceeding replaces the former equivalent proceeding explained in this previous post.
The plaintiff's application at the Court of Appeal to reopen certain matters for Court of Appeal action nos.1901-0078AC/1901-0179AC (some of these matters are referred to in the brief below) will be posted on this blog soon.
Background and Relief
Sought
1.
This is the Brief of the Plaintiff/Appellant
for her appeal of the assessment officer’s bill of costs
decision. The assessment officer denied the Appellant procedural fairness when he
denied her the fundamental right to be heard and proceeded with the review with
opposing counsel’s submissions only. The assessment of bill of costs matter
should be returned to the Review Office for a new review where both parties
have the opportunity to be heard. In the alternative, the Appellant seeks that
the assessment officer’s bill of costs decision be set aside and/or that the assessment
of bill of costs decision be stayed until her appeal reopen application for certain matters
at the Court of Appeal and her appeal to the Supreme Court of Canada for Court
of Appeal action nos.1901-0078AC/1901-0179AC are 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 Appellant,
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 Appellant in abuse of legal
processes and outside their defendant client Dr. Peter Whidden’s interest. The
Respondent lawyers committed this misconduct while acting as defence counsel in
the underlying medical malpractice matter involving surgical injury to the Appellant.
3.
In adjudication of the Appellant’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 Appellant’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 the costs column from the
underlying medical malpractice lawsuit, and admitting she intended for the Appellant
to appeal her decision, among extensive further substantive and procedural
errors. 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 Perry 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 Appellant’s most important appeal grounds, facts, argument and
supporting evidence, failed to adjudicate matters on accepted legal grounds, and
failed to allow the Appellant the minimum mandatory time for oral argument submissions
as acknowledged by the Court of Appeal on October 15, 2020 [Appellant June 23,
2021 Affidavit]. Some of the serious arguable appeal issues
to be addressed in the Appellant’s respective appeal reopen application and
Supreme Court of Canada leave application include:
(a) Justice Paperny purported that the Appellant had not proven her claims and associated this with the scale of costs, 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. A trial in this matter remains a requirement to properly consider the Appellant’s claims and the damages she suffered which have never been dealt with. Accepted legal principles must be consistently applied to all cases, including where a party is self-represented.
(b) Justice
Paperny failed to acknowledge many of the Appellant’s important distinct
appeal grounds. She ignored them as repetitious and casually skipped them to be
more, as she said, “expedient”. Some of these ignored significant appeal
grounds involve all of the issues relating to Justice Hollins’ conflicts
of interest, her serious errors and admissions as to costs, and failure to
apply the principles in the Supreme Court of Canada’s decision Quebec
(Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26
which affirms the court’s responsibility through its inherent jurisdiction to
sanction and punish deliberate, malicious conduct and abuse of process by
lawyers, conduct which is well-evidenced in the present case. Justice Paperny
further entirely failed to mention the intrusion upon seclusion appeal grounds regarding
the Respondents Taryn Burnett and Gowlings unlawfully obtaining the Appellant’s credit report, an offence they were already found guilty of committing in the unrelated privacy breach decision having parallel facts, Gowling WLG
(Canada) LLP (Re), 2020 CanLII 33322 (AB OIPC).
(c) Justice Paperny only allowed the Appellant 33 minutes of oral argument time instead of the mandated 45 minutes [Affidavit], which greatly deprived the Appellant of her right to have her appeal fully heard and adjudicated. The facts surrounding the criticality of the Appellant’s oral argument submissions are well-known: the case management officer Laurie Baptiste had told the Appellant that any additional submissions she wished to make would have to be made in oral argument before the appeal panel after Ms. Baptiste unfairly refused, at the request of Mr. Mack, to file the Appellant’s amended factum containing critical additional facts, argument and case law, despite that the Appellant submitted her amended factum according to the directed deadline of October 1, 2019, albeit by email and with hardcopies prepared the next morning, and according to the directed 42-page factum limit for both parties.
(d) The Appellant’s concerns with Justice Paperny’s assignment to the appeal panel for appeal action nos. 1901-0078AC/1901-0179AC, including judge shopping for her assignment by Respondents’ counsel Mr. Mack and the Respondents, are well-documented in the Appellant’s filed Court of Appeal materials. They judge shopped for Justice Paperny to be assigned to the appeal panel and she subsequently was assigned to the appeal panel. Evidence of this judge shopping is contained in the Appellant’s Court of Appeal September 7, 2020 Affidavit, including exhibited email correspondence the prior year on July 2 & 3, 2019 with the case management officer Laurie Baptiste and Mr. Mack, in which the Appellant stated her concern that Mr. Mack was attempting to have Justice Paperny assigned to the appeal panel.
5.
Subsequently, the Court of Queen’s Bench
Review Office denied the self-represented Appellant procedural fairness when it
denied her right to be heard for the assessment of bill of costs when it heard
submissions from Mr. Mack only, failed to accommodate the Appellant’s
scheduling requirements and unique circumstances, and indulged all of opposing
counsel Mr. Mack’s unfair unilateral scheduling demands. Further, the Appellant’s
appeal reopen application for specific issues at the Court of Appeal and her
appeal at the Supreme Court of Canada should be resolved before any
determination of costs.
The Facts
6.
The majority of the
facts of the Appellant’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 Appellant, Respondents’ counsel Mr. Mack, and
the Court of Queen’s Bench Review Office [Appellant June 23, 2021 Affidavit,
“Affidavit”].
7.
Mr. Mack unilaterally scheduled a hearing
date of March 16, 2021 for the assessment of bill of costs without the Appellant’s
consent or knowledge of his chosen hearing date or even providing her with a
copy of his request to the Review Office to schedule the appointment. Mr. Mack
further ignored the Appellant’s availability and unique circumstances when
scheduling, including that she had an important prior scheduled appointment on
Mr. Mack’s chosen hearing date, that she required more time to prepare for the
hearing, and that her Court of Appeal reopen application and Supreme Court of
Canada appeal remedies are extant. The Appellant 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 refused to accommodate the Appellant’s needs
and stated he opposed any adjournment [Affidavit]. This is in contrast with the
Appellant’s routine courteous scheduling of hearing dates in cooperation with
Mr. Mack’s availability [Affidavit].
8.
The Review Office denied the
self-represented Appellant procedural fairness when it denied the Appellant an
opportunity to be heard, allowed all of Mr. Mack’s unilateral unfair scheduling
demands, and showed no regard for the Appellant’s availability and
circumstances. This includes that the Review Office:
(a) Allowed
the hearing date of March 16, 2021 that Mr. Mack scheduled without the Appellant’s
consent or knowledge of the date Mr. Mack chose, or even copying the Appellant
on his correspondence to the Court scheduling the appointment [Affidavit].
(b) Proceeded
with the assessment of costs hearing on Mr. Mack’s chosen date of March 16,
2021, despite that the Appellant was not available on that date due to an
important prior scheduled appointment on the same date and that she provided
evidence of same on March 10, 2021 as requested by the Review Office
[Affidavit].
(c) Refused
to consider the Appellant’s requested hearing dates, that she did not have
sufficient time to prepare materials and submissions and, further, that her appeal
reopen application for certain matters at the Court of Appeal and her Supreme
Court of Canada remedies are extant, both of which should be resolved first.
(d) After
receiving and confirming receipt of the Appellant’s submitted evidence on March
10, 2021 of her conflicting March 16, 2021 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 original hearing date that was to be
rescheduled) advising the hearing would proceed on March 16, 2021. The Review
Office wrote in its March 16, 2021 email [Affidavit]:
“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 Appellant, the Review Office
scheduled a further hearing date unreasonably peremptory on the Appellant at
Mr. Mack’s insistence and despite that it was not possible for the Appellant to
attend the prior scheduled date. The further hearing date was again set without
regard for the Appellant’s availability and circumstances, and submissions were
heard from Mr. Mack only.
(f) The
transcript of the assessment hearing [Affidavit] shows that the assessment
officer did not consider or make any mention of the Appellant’s circumstances, despite
that they were in the lengthy email thread with the Review Office. The
transcript further shows that the assessment officer made a once-sentence
decision without sufficient reasoning required for meaningful appellate review.
9.
It should be noted that the Appellant was
unable to attach to the appeal record for the within appeal “The request to the
assessment officer for the appointment”, a required part of the appeal record
as stated on Notice of Appeal Form 46, because Mr. Mack did not copy the
Appellant when he made his request to the assessment officer for the
appointment and, further, he refused to provide it to the Appellant when she
asked for it in February 22 & 23, 2021 correspondence [Affidavit]. To be
clear, the filed assessment officer appointment was sent from the Court of
Appeal to the Appellant after Mr. Mack requested the appointment, but Mr. Mack
did not provide to the Appellant his actual request for the appointment.
The Law and Argument
10.
The Review Office assessment officer
failed to follow the principles of procedural fairness in the conduct of the
review of the bill of costs and, therefore, the standard of review to be
applied is correctness.
11.
The assessment officer denied the
Appellant the most important principal of procedural fairness, the right to be
heard, when he denied her the right to be heard on the bill of costs and heard
submissions from Mr. Mack only. Further, the assessment officer proceeded with
Mr. Mack’s unilateral and unfair scheduling demands, and without regard for the
Appellant’s circumstances. These issues give the appearance of the assessment
officer’s determination to move forward with his judgment.
12.
Appellate case law holds that 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 paras. 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.”
13. The Supreme Court of Canada and the Federal Court of Appeal have both recognized the importance of employing a procedurally fair process and accommodating self-represented persons in matters of scheduling in order to strike a balance with resolving matters expeditiously, which the assessment officer failed to apply in the present case. 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.
14.
A
hearing cannot be made peremptory upon a party unless there is very good
reason, which does not exist in the present case. The Appellant simply sought a
hearing date that both parties could attend for the assessment of bill of
costs, and the assessment officer denied this basic fundamental right.
15.
Further,
the assessment officer’s one-sentence decision failed to give sufficient reasons.
Sufficient reasons are required for meaningful appellate review: Carbone
v. McMahon, 2017 ABCA 384 at para. 12.
16.
It should also be noted that 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 the
Court of Appeal case management officer Ms. Baptiste to refuse the Appellant’s
amended factum leading to a miscarriage of justice, should be cause for concern
by all court participants.
17.
The Appellant does not propose to argue in
the current appeal the details of Mr. Mack’s prepared bill of costs because the
Appellant did not have the opportunity to do so as she was entitled in the
first instance before the Review Office. This argument should be made upon
return of the assessment of bill of costs matter for a new review by the Review
Office.
18.
With respect to the alternative stay
application, there are serious issues arguable on appeal, the Appellant would
suffer irreparable harm absent the stay, and the balance of convenience favours
granting the stay. The appeal issues involve procedural fairness, a principle
of fundamental justice, which favours granting a stay. With respect to a stay
pending the Supreme Court of Canada outcome, the appeal issues have sufficient
public importance.
19.
Granting the self-represented Appellant 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.”
20. It should be noted that the appeal of the assessment officer’s decision was originally made to the Court of Appeal due to misunderstandings by both the Appellant and the Court of Appeal staff which advised the Appellant that the appeal process was to appeal to that Court in the circumstances [Affidavit]. The Appellant subsequently understood at the Court of Appeal hearing that the correct appeal process is to appeal to the Court of Queen’s Bench and, accordingly, the within appeal proceeding replaces the withdrawn Court of Appeal proceeding. The Court of Appeal directed that both parties would bear their own costs for that Court of Appeal proceeding [Affidavit].
