In the lawsuit against defendant lawyers Megan McMahon and Taryn Burnett, and their law firm Gowlings, the plaintiff has filed an appeal solely on the matter of the case management judge declining to recuse himself from this case.
The plaintiff filed her appeal factum with her argument, below, with the Court of Appeal on May 24, 2017. The PDF version can be
The main issue on appeal concerns the case management judge Justice D.B. Nixon declining to recuse himself from this case with the
with his own personal lawyer, Perry Mack, representing the defendants in this case before him. There was only 10 months between the end of their solicitor-client retainer and Justice Nixon taking disposition of this case. It will be argued that a judge that is predisposed to one side, in this case to his lawyer and the party represented by him, can not be impartial.
The second issue is that the plaintiff was denied procedural fairness by Justice Nixon repeatedly rescheduling her applications for two years, and also denying her reasonable requests to ensure all materials were before him, and other scheduling matters.
PART 1 – STATEMENT OF FACTS
1. This is the Factum of
the Appellant/Plaintiff. The Appellant appeals from the February 21, 2017 oral
decision of the Honourable Mr. Justice D. Blair Nixon declining to recuse
himself as case management judge.
2. The primary issue on
appeal concerns the conflict of interest with Justice Nixon presiding over this
case with his own personal lawyer, Perry R. Mack, appearing before him as
counsel for the Respondents/Defendants.
3. This appeal also deals
with the two year delay imposed by Justice Nixon, which has prejudiced the
Appellant’s right to a timely and fair resolution of her matters.
The Actions
4. This case, with Court of Queen’s Bench action nos. 1401-00821 and 1301-03943 [Appellant’s Appeal
Record, Tab 1], concerns the Respondent/Defendant lawyers, Megan McMahon and
Taryn Burnett, and their law firm Gowling WLG (formerly Gowling Lafleur
Henderson LLP, “Gowlings”), committing various malicious and predatory acts
toward the self-represented Appellant in the underlying medical malpractice
case, which is still in progress within the channels of the Canadian court
system [Appellant’s Extracts, Tab 11].
5. This case is about one
of the most extreme and egregious cases of abuse and deceit by opposing lawyers
toward a self-represented person. This case is not about opposing lawyers’ duty of care to the other side; it is
about malice, fraud, and other transgressions well settled in jurisprudence as
rightful causes of action against opposing lawyers when warranted.
6. The claims against the
Respondents/Defendants Ms. McMahon and Ms. Burnett include: (a) Abuse of process, (b) Harassment of the
Appellant for the purpose of personal attack outside their client’s interest,
(c) Defrauding the Appellant and committing fraud upon the Court with a
$150,000 bill of costs, which deceitfully claimed costs for, among other
things, fabricated hearing dates that do not exist, application costs which
were previously reversed to be in the Appellant’s favour, applications for
which the Appellant was successful, applications for which the Defendants were
refused costs sought, and duplicated bill of costs items, and refusing to
provide supporting documentation for the bill of costs upon the Appellant’s
request, (d) Unlawfully obtaining the Appellant’s credit report in April 2013,
which came to light in 2015, in violation of her privacy and as a means of
assessing the Appellant’s financial assets, along with various property
searches, to carry out their fraudulent scheme; In a related matter, on
December 12, 2016, the Privacy Commissioner of Alberta issued decision #003172
denying the Defendant Gowlings its request for authorization to disregard the
Appellant’s access request for her credit and financial information, and ordering
Gowlings to respond to that access request, (e) Numerous additional serious and
deceitful misrepresentations to the Court, (f) Defaming the Appellant,
including with conspiracy with a publisher which advertises for Gowlings, and
from which the Appellant has obtained an out of court settlement, and (g) Intentionally
inflicting physical, emotional and financial harm upon the Appellant.
Facts on Recusal application below
8. This appeal deals solely
with the matter of Justice Nixon’s refused recusal, decided orally on February
21, 2017 [Appellant’s Extracts, Tab 2]. Decisions on concurrently heard
applications for amendments and striking have not yet been made at the time of
the filing of this factum on May 24, 2017.
9. The primary issue on
appeal is whether Justice Nixon failed to recuse himself amid the conflict of
interest with his own personal lawyer, Perry R. Mack, appearing before him as
counsel for the Respondents/Defendants in this case.
10. At the first case
management meeting before Justice Nixon on May 7, 2015, it was disclosed that
counsel for the Respondents, Perry Mack, was Justice Nixon’s lawyer in
unrelated legal matters. [Appellant’s Extracts, Tab 1]. It was further learned
there was only one clear year between Mr. Mack’s last legal representation of
Justice Nixon and his appointment as case management judge on February 18,
2015.
11.
At the case management
meetings on May 7, 2015 and February 21, 2017, and the weeks leading up to the latter,
Justice Nixon displayed a predisposition toward his lawyer Mr. Mack, gave
little to no weight to the Appellant’s submissions and requirements as a
self-represented person, and acceded to Mr. Mack’s every request. Justice
Nixon’s words and actions showed favouring of Mr. Mack and a closed mind to the
Appellant. This includes:
(a)
At the May 7, 2015
case management meeting [Appellant’s Extracts, Tab 1], Justice Nixon favoured
Mr. Mack’s misstated account of prior proceedings under other judges and ordered
sequence of applications, and failed to consider the Appellant’s submissions,
with the result Justice Nixon erroneously ordering the Respondents’ application
to be heard before the Appellant’s application for amendments (which had been
in waiting a year before the Respondents’ made an application for striking),
and suggesting that the Appellant’s application may potentially not be heard at
all despite that prior justices had always ordered her amendments application
would be heard. Justice Nixon also ordered both the application for recusal and
the application for striking to be heard at the same time, suggesting he was
predisposed to refuse recusal and go straight to Mr. Mack’s striking
application.
(b)
Also at the May 7,
2015 case management meeting, Justice Nixon erred in law in accepting Mr.
Mack’s erroneous submission that we are still under the prior order of recused
judge Earl C. Wilson, without considering the Appellants’ submission that
authorities state a recused judge’s order is void and of no effect [Wewaykum Indian
Band v. Canada, [2003] 2 SCR 259, 2003 SCC 45 (CanLII) at para 49; see
also Newfoundland Telephone Co. v. Newfoundland
(Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623].
(c)
Justice Nixon refused to accommodate the obstacle that arose concerning the Appellant’s ability to
commission her affidavit out of province, which she could not have known about
being self-represented, which had resulted in the Appellant being unable to
file her affidavit evidence with brief materials on the filing date February 3,
2017 [Appellant’s Extracts, Tab 3]. Despite
that the Appellant promptly notified Justice Nixon of the issue by letter
February 3, 2017, attaching lawyer correspondence confirming the out of
province restriction, Justice Nixon did not grant her leave to file her
materials. As indicated below, she did not even receive a clear answer from
Justice Nixon until the day of the case management meeting, February 21, 2017. Justice
Nixon stated in his letter dated February 14, 2017 “The Court has no further comment.” It should be noted the Appellant was not seeking legal advice, as
Justice Nixon framed it, but was rather seeking his decision on leave for
filing pursuant to a judge’s obligations under Rules of Court 1.4 and 13.5
[Appellant’s Extracts, Tab 3].
(d)
Mr. Mack replied with a letter to Justice Nixon,
dated February 3, 2017 [Appellant’s Extracts, Tab 4] stating he did not want
the Appellant to be allowed her right to file her materials, because she
already filed a brief for the [successful] recusal of Justice Earl Wilson [on
January 19, 2015]. Clearly this lacks logic as a prior brief for recusal of a
different case management judge does not address the issues for recusal of
Justice Nixon.
(e)
As there was no determination on her request for leave
to file and the hearing date was just days away, it was necessary for the
Appellant to reluctantly request a short adjournment. Justice Nixon replied,
deferring the decision on a short adjournment to Mr. Mack, who refused a short
adjournment [Appellant’s Extracts, Tab 3]. This is
also despite that there were several adjournments made at the Respondents’ and
Mr. Mack’s requests throughout earlier proceedings, as mentioned in the
timeline of delays below.
(f)
On the hearing date of February 21, 2017, the Appellant
made an application for a short adjournment so she could file her materials and
have them fully considered by Justice Nixon, as is her right under the Rules of
Court, and relied on her affidavit sworn February 20, 2017/filed February 21,
2017 [Appellant’s Extracts – Tab 3]. The Appellant also cited authorities,
including the CJC Statement of Principles
on Self-represented Litigants, now endorsed by the Supreme Court of Canada:
Pintea v. Johns, 2017 SCC 23 [Appellant’s
Authorities]. However, Justice
Nixon refused to grant a short adjournment after Mr. Mack made a brief
submission without legal substance that he did not want the Appellant to be
able to have the short adjournment.
(g)
On the hearing date of February 21, 2017, by the
end of the day at 3:30pm the applications for amendments and striking had still
not begun. The Appellant suggested they be dealt with the following day to
ensure these important and determinative actions had sufficient time for oral
submissions. However, Justice Nixon refused when Mr. Mack said he wanted to
proceed with them now. These two most important applications were then crammed
into one hour at the end of the day, resulting in the self-represented Appellant
not having enough time to make her full oral submissions. The Appellant was
forced to race through her oral submissions, and Mr. Mack and Justice Nixon
complained she was speaking too quickly.
(h)
At times the obvious comradery, including
non-verbal, between Justice Nixon and his lawyer Mr. Mack during the February
21, 2017 proceedings was almost unbearable. Justice Nixon was turned toward Mr.
Mack throughout most of the proceeding, with certain nods, glances and
expressions between them and gauging Mr. Mack’s approval or lack of at various
points of the Appellant’s submissions.
Unreasonable Delays Prejudicing the Appellant
12.
The secondary issue on
appeal concerns Justice Nixon’s repeated delays over two years, with the effect
of prejudicing the Appellant’s right to a fair and timely resolution of her
matters.
13.
These delays involved repeatedly
rescheduling the Appellant’s application for his recusal and her application
for statement of claim amendments (already in waiting since December 2013). The
Appellant attempted to move the matters forward with case management bookings
and letters to Justice Nixon to no avail [Appellant’s Extracts, Tab 3].
14.
It is significant that
Justice Nixon’s most recent rescheduling involved giving away the Appellant’s long awaited hearing date of December 15, 2016 to the within Respondent/Defendant, lawyer Taryn Burnett, so that she
could use that timeslot for her own unrelated trial in which she was defence
counsel, with Justice Nixon presiding over it [Appellant’s Extracts,Tab 3]. This also served to enable the Respondents to
even further delay the actions against them they wish to avoid.
15.
The ongoing unreasonable delays by both Justice
Nixon and the Respondents/Defendants are described in the Appellant’s Court of
Queen’s Bench affidavit sworn February 20, 2017/filed February 21, 2017 [Appellant’s
Extracts, Tab 3]. The delays can be summarized as:
(a)
The Appellant’s application for amendments in action
no. 1301-03943 against Respondent/Defendant Taryn Burnett was filed on December
13, 2013.
(b)
At the Respondents’ request, the Appellant’s
application for amendments was adjourned to March 24, 2014.
(c)
Given the delay with the amendment application, which
also sought to add the Respondent Megan McMahon as a defendant, it was
necessary for the Appellant to file a separate action, no. 1401-00821, for the
allegations against Ms. McMahon.
(d)
On March 24, 2014, the amendments application was
adjourned again because the Respondents had judge shopped for Justice Earl Wilson
to be the case management judge and only wanted Justice Wilson to hear the
amendments application.
(e)
There was no hearing before Justice Wilson until
December 4, 2014 due to the Respondents’ insistence on waiting until Justice
Wilson was available.
(f)
Justice Wilson was removed from the within case on
January 28, 2015 on grounds of judge shopping by the Respondents, conflict of
interest, and bias. The issues with Justice Wilson as case management judge in
the underlying case are well-documented in the Appellant’s past materials filed
with both Courts. He is also notorious for unfairness toward self-represented
people.
(g)
A second case management judge was appointed but he
recused himself on February 3, 2015 due to a conflict of interest he identified
with a relative of one of the Respondents.
(h)
Justice Nixon was assigned as the third case
management judge on February 18, 2015.
(i)
The first case management meeting before Justice Nixon
was held on May 7, 2015. At that time, the date for the Appellant’s applications
for his recusal and her amendments, and the Respondents’ application for striking
(brought long after the Appellant filed her proposed amendments) were ordered
to be heard at a date to be determined.
(j)
The Appellant filed a Notice of Appeal on June 29,
2015 with the Appellant’s above mentioned concerns on sequence of applications
to be heard, and the recusal and striking applications being heard together.
The Appellant was heard before the Court of Appeal on a motion seeking to file
the appeal record due to Mr. Mack having served the order late, causing the
Appellant to miss a deadline under the new rules.
(k)
On that motion, the Court of Appeal issued decision, Carbone v McMahon, 2015 ABCA 263
[Appellant’s Authorities], giving
guidance and further stating at para 9 “the answer here is to get on with
deciding the underlying Applications.”
(l)
On September 21, 2015, the Appellant sent
correspondence, including the Court of Appeal decision, to Justice Nixon’s
attention, seeking Justice Nixon’s availability for a case management meeting.
The case management coordinator advised we were waiting to receive Justice
Nixon’s availability.
(m) On January 29, 2016, Justice Nixon’s available
hearing dates were finally provided, and the Appellant booked a case management
hearing date of June 8, 2016, as agreed by the parties.
(n)
On May 3, 2016 and June 10 & 14, 2016, the parties
were informed Justice Nixon had become unavailable for the scheduled June 8,
2016 date, and new dates were provided. The Appellant submitted another case
management booking for December 15, 2016 as per Justice Nixon’s availability.
(o)
Justice Nixon sent correspondence to the parties on November
24, 2016, indicating he had become unavailable again for December 15, 2016, and
that the case management meeting must be rescheduled to the next year on
February 21, 2017.
(p)
As mentioned above the Appellant later learned, and
confirmed with Mr. Mack, that the December 15, 2016 hearing date was
rescheduled because it was given away to Respondent Taryn Burnett, so that she
could use that timeslot for her own unrelated trial in which she was counsel,
with Justice Nixon presiding over it.
(q)
The applications finally
proceeded on February 21, 2017, nearly two years after the previous case
management meeting on May 7, 2015. These are the only two case management
meetings before Justice Nixon to date.
PART 2 – GROUNDS OF APPEAL
16.
This appeal raises
three grounds of appeal:
Ground #1:
The case management judge erred in failing to properly apply the reasonable
person test with respect to the issue of recusal in the matter of his presiding
over a case in which his own lawyer represents a party.
Ground #2:
The case management judge’s words and actions demonstrated he was predisposed to
rule in his lawyer Mr. Mack’s, and the Respondents’, favour and had a closed
mind to the Appellant, giving rise to reasonable apprehension of bias.
Ground #3:
The case management judge denied the Appellant procedural fairness by unduly
delaying the actions which resulted in prejudicing her right to a fair and
timely resolution of her matters, in addition to denying her fair opportunity
to present all of her submissions.
PART 3 — STANDARD OF REVIEW
17. All
three grounds of appeal are based in questions of law and, therefore, have a
standard of review of correctness.
18. The
grounds of appeal deal with apprehension of bias and procedural fairness. This
Court has stated that both “[a]llegations of apprehension of bias and breaches
of procedural fairness are reviewable on the correctness standard”: Trigg v. Lee-Knight, 2009 ABCA 224.
Reasonable apprehension of bias
19. An
error in the application of a legal test or legal principle is an error in law,
subject to a correctness standard.
20. While
issues of fact are involved in a recusal application, in this case the error
lies in Justice Nixon failing to correctly apply the legal test, specifically
the reasonable person test as it applies to reasonable apprehension of bias.
The proper application of this test would have led to recusal.
21. Further,
Justice Nixon failed to recognize the legal principle that the most important
consideration in determining recusal is the maintenance of the public’s
confidence in the administration of justice:
Wewaykum Indian Band v. Canada, [2003] 2 SCR 259, 2003 SCC 45, CJC Ethical
Principles for Judges.
22. Surely,
the significant conflict of interest of a judge presiding over a case in which
his own lawyer represents a party would be called into question by this legal
principle. In failing to recognize this principle and setting a dangerous
precedent that a judge might be able to preside over a case in which his own lawyer
represents a party, the public’s confidence in the administration of justice is
put at risk.
23. Further,
both the failure to properly apply a legal test and the failure to recognize an
important legal principle are errors raising questions of law that are
extricable from the factual issues. A question of law that is extricable from
the factual issues is reviewable on the standard of correctness: Housen v. Nikolaisen, 2002 SCC 33 at
para 27
24. In addition, Justice Nixon’s failure
to recuse himself in this serious conflict of interest is so clearly wrong that
it amounts to an injustice. An error so clearly wrong warrants appellate
intervention.
Procedural
Fairness
25. This Court cited the Supreme Court of
Canada in asserting that issues of procedural fairness are reviewed on the
standard of correctness in Johnston v. Alberta
(Director of Vital Statistics),
2008 ABCA 188 (CanLII) at para. 12:
[I]ssues of procedural
fairness or natural justice... are reviewed on the correctness
standard using the analysis
set out in Baker v. Canada (Minister of Citizenship and
Immigration), 1999 CanLII
699 (SCC).
26. Questions of procedural fairness are subject to the standard of review
of correctness: Mission Institution v Khela, 2014 SCC 24 (CanLII) at para 79.
27.
Failing to accommodate a self-represented person
is a matter of procedural fairness: Pintea v. Johns, 2017 SCC 23.
PART 4 - ARGUMENT
28. The serious conflict of interest of
Justice Nixon presiding over this case in which his own personal lawyer, Mr.
Mack, represents a party is a serious conflict of interest, giving rise to
reasonable apprehension of bias
29. At
the May 7, 2015 case management meeting [Appellant’s Extracts, Tab 1] Justice
Nixon acknowledged that he retained Mr. Mack as his lawyer:
10 THE COURT: Right. I’ll acknowledge the comment by
11 Mr. Mack. We have known each other for a number of years in primarily a professional
12 capacity. The Chief Justice and I have discussed the matter. I do not perceive that
13 there’s an issue, from my perspective, in terms of a conflict. And I just want to table that
14 as a comment. The relationship that we’ve primarily had is it -- some time ago, years
15 ago, I retained him in a -- in a professional capacity, my professional capacity, with
16 respect to an organization that I was chairman of or president of, depending on how you
17 characterize it, along with a number of past chairs.
30. Justice Nixon’s oral decision on recusal
[Appellant’s Extracts, Tab 2] attempts to distance himself from Mr. Mack, in stating
that he was one of a group of people who retained Mr. Mack. The fact that
Justice Nixon may have been an individual in a group that retained Mr. Mack
does not change the fact that Mr. Mack is his lawyer. Further, his earlier
acknowledgement that he was the chairman or president of the organization shows
he was a key individual retaining Mr. Mack’s services.
31. The test for apprehension of bias and the importance of
impartiality in our justice system is set out by the Supreme Court of Canada
in Wewaykum Indian Band v.
Canada, 2003 SCC 45 (CanLIl), [2003] 2 S.C.R. 259:
[57] ... Simply put, public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so.
[60] ... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."
32. The chapter on Impartiality in the Canadian Judicial
Council's document Ethical
Principles for Judges states
"Judges must be and should appear to be impartial with respect to their
decisions and decision making" and "the appearance of impartiality is
to be assessed from the perspective of a reasonable, fair-minded and informed
person."
33. The same document refers to a "cooling off
period": “with respect to the judge's clients, the traditional approach is to use a
'cooling off period', often established by localtradition at 2, 3 or 5 years ... "
34. Also
in the “Conflicts of Interest” section, the CJC cites a judge’s commentary from
the text A Book for Judges indicating
a judge should be disqualified where there is a personal or professional
relationship with counsel: “A judge’s disqualification would be justified by…a
close family, personal or professional relationship with a litigant, counsel or
witness.”
35. A
reasonable person would find that Justice Nixon’s relationship as client of the
within counsel for the Defendants, Mr. Mack, predisposes Justice Nixon to close
his mind and reach a result favouring the party represented by his lawyer Mr.
Mack. This issue is further complicated by the fact that Mr. Mack serves as an
authority to Justice Nixon for legal advice, and Justice Nixon is therefore
inclined to take the legal advice of his lawyer in these proceedings. This
solicitor-client relationship is arguably one of the most serious forms of
conflict of interest requiring judicial disqualification.
36. A
conflict of interest with a judge and lawyer where there has not been a
sufficient “cooling off period” is a strong factor favouring recusal: Al-Ghamdi v Alberta, 2016 ABQB 424
(CanLII). In the present case, there has not been a sufficient cooling off
period, which the CJC established as 2, 3 or 5 years, since the relationship in
question. There was only one clear year since Mr. Mack’s most recent legal
representation of Justice Nixon in 2013 and the date Justice Nixon was assigned
case management judge on February 18, 2015. Accordingly, the cooling off period
requirement has not been met.
37. The
two year delay with proceedings does not count toward the cooling off period. Clearly
this faulty logic would be self-serving to Justice Nixon and Mr. Mack and must
be rejected, especially considering the two year delay was imposed by the
court.
38. A
case management judge’s words and actions showing predisposal to one side warrant
recusal: Point on the Bow Development
Ltd. v. William Kelly & Sons Plumbing Contractors Ltd., 2005 ABQB 368, at
para 5 & 6; Nazarewycz v. Dool,
2009 ABCA 70 at para 76 & 77
39. The
CJC Ethical Principles Statement on
Diligence states: “Judges should be diligent in the performance of their
judicial duties” and “Judges have important responsibilities, for example, in case
management and pre-trial conferences as well as on committees of the court.
These are all judicial duties and should be undertaken with diligence.”
40. Justice
Nixon was assigned to this case to meet the purpose of case management, being
to move a case along to trial in an orderly and timely manner. This Court’s
Notice to the Profession and Public, “Civil and Family Case Management”, issued
June 27, 2016, states the reasons for case management which include “to promote
and ensure the fair and efficient conduct and resolution of the case” and “to
keep the parties on schedule.”
41. However,
under Justice Nixon’s case management the case has been plagued with delays and
repeated rescheduling, prejudicing the Appellant’s right to a fair and timely
resolution of her matters and creating a barrier to her access to justice.
42. These
delays and lack of diligence do not meet the goal articulated by the Supreme
Court of Canada in Hryniak v. Maudlin,
2014 SCC 7 of “creating an environment promoting timely and affordable access
to the civil justice system.”
43. Justice Nixon did not afford procedural
fairness when he refused the Appellant her opportunity to file her materials
and adjournment, delayed proceedings by two years, gave the Appellant’s hearing
date to the Respondent, ordered the striking application to be heard before the
amendments application and the recusal and striking applications together.
44.
The
Canadian Judicial Council's Statement of Principles on Self-Represented
Litigants, September 2006, now endorsed by the Supreme Court of
Canada, makes these directions among others to promote equal access to justice
for self-represented people: “Self-represented persons should not be denied
relief on the basis of a minor or easily rectified deficiency in their case”
and “Judges should ensure that procedural and evidentiary rules are not used to
unjustly hinder the legal interests of self-represented persons.”
PART 5 — RELIEF SOUGHT
45. In the context of all of the foregoing, it is
respectfully submitted that the appeal be allowed and the oral decision
declining recusal be set aside, and the Appellant be awarded costs.
