The erroneous decision will be appealed in the interests of justice.
This case, brought by the plaintiff Carbone against the defendants, rogue lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings, is about one of the most extreme and egregious cases of abuse and deceit by opposing lawyers toward a self-represented person. As the plaintiff has made clear, including in her submissions, arguments and pleadings before Justice Hollins, this case is not about opposing lawyers’ duty of care to the other side. It is about abuse of process, malice, fraud, deceit, acting in bad faith and other wrongdoing well settled in jurisprudence as rightful causes of action against opposing lawyers when warranted.
It can not be overstated that the plaintiff's claims are clear that they are not based in opposing lawyers' duty of care to opposing clients, and instead deal with serious wrongdoing by opposing lawyers actionable by law, which is strongly supported by case law, including binding recent Supreme Court of Canada law. A review of the plaintiff's brief and pleadings make this clear. It is egregiously wrong that Justice Hollins mischaracterized much of the plaintiff's case as about a claim of breach of duty by opposing counsel to the plaintiff. It is also indisputable that, of the only duty the plaintiff mentioned in her amended claims, lawyers do have a duty to the court and to meet ethical obligations.
To read the actual pleadings, which are properly pleaded in fact, particulars and legal principles, click here to read the plaintiff's amended statement of claims.
To read the actual plaintiff's argument backed by solid case law, click here to read the plaintiff's brief.
The plaintiff's evidence for the applications was filed June 5, 2018 and is available upon request.
Re-stated here for clarity is a very brief overview of some of the defendants Megan McMahon, Taryn Burnett, and Gowlings' extensive wrongdoing which caused the plaintiff to suffer serious damages:
a) The defendants' pattern of serious abuse of process in various forms, including the defendants bringing a number of malicious applications with entirely false allegations against the plaintiff, all of which were properly dismissed by the Court. These unsuccessful applications by the defendants include two vexatious applications, a contempt application and three security for costs applications.
b) The defendants' malicious harassment of the plaintiff for the purpose of personal attack outside their client’s interests.
c) The defendants' defrauding the Plaintiff 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 plaintiff’s favour, applications for which the plaintiff 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 plaintiff’s request. The defendants fraudulently procured a costs judgment upon the Court being misled and deceived by acting on the false representations made by the defendants.
d) The defendants' unlawfully obtaining the plaintiff’s credit report on April 11, 2013, which came to light in 2015, in violation of her privacy and as a means of assessing the plaintiff’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 Plaintiff’s access request for her credit and financial information, and ordering Gowlings to respond to that access request. In common law, this privacy breach is referred to as "Intrusion upon Seclusion".
e) The defendants' numerous additional serious and deceitful misrepresentations to the Court.
f) The defendants' defaming the plaintiff, including with unsuccessful malicious applications filled with absolutely false allegations brought in bad faith seeking to deceitfully label the plaintiff injurious to her reputation; conspiracy with a publisher which advertises for Gowlings, and from which the plaintiff has obtained an out of court settlement, and; in making defamatory statements about the plaintiff to her lawyer on limited retainer.
g) The defendants' intentional infliction of physical, emotional and economic harm upon the plaintiff.It is significant that Justice Hollins entirely ignored the significant body of law brought to her attention, including binding Supreme Court of Canada law, stating that malicious and deliberate wrongdoing by lawyers, including fraud, malice and bad faith, is actionable by law and in the court's inherent jurisdiction to impose consequences and sanctions on lawyers.
Courts do indeed have the jurisdiction to punish serious lawyer misconduct for breaching their duty to the court, acting with dishonest or malicious conduct, engaging in bad faith and abuse of process, or seriously abusing the judicial system. This is clearly stated by the Supreme Court of Canada in its recent decision Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26:
A court therefore has an inherent power to control abuse in this regard and to prevent the use of procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute...As officers of the court, lawyers have a duty to respect the court’s authority. If they fail to act in a manner consistent with their status, the court may be required to deal with them by punishing their misconduct.
...It was therefore reasonable for the court to conclude that J had acted in bad faith and in a way that amounted to abuse of process, thereby seriously interfering with the administration of justice.
...This high threshold is met where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that is deliberate.The above Supreme Court authority was included in the plaintiff's argument and authorities, along with Alberta case law relying on it, however Justice Hollins chose to ignore it as she did with the other relevant case law in the plaintiff's authorities relied on.
Justice Hollins' mischaracterization, minimization and omission of the plaintiff's properly pleaded allegations, facts, evidence, and argument of the defendants' serious wrongdoing actionable by law is stunning.
For example, of the plaintiff's clearly set out pleadings of facts of the costs fraudulently procured by the defendants McMahon, Burnett and Gowlings and their fraud upon the court, which have NOT been dealt with to date, Justice Hollins stated - absolutely nothing!
Click here to read the prior blog post with a summary of the defendants' fraud and fraud upon the court, with itemization of the defendants' costs fraudulently claimed in their fraudulently procured costs judgment, and the mischief (this, for example) they engaged in by refusing to provide supporting documentation of their fraudulent bill of costs to the plaintiff necessary for proper adjudication at the trial costs hearing and the appeal hearing.
The plaintiff describes the costs fraudulently procured as "fraudulent" because they meet the legal definition of fraudulent misrepresentation and were procured by perpetration of fraud upon the court, not because the defendants refused to provide supporting information for them in advance of costs hearings as suggested by Justice Hollins. The public is smarter than this.
The fraudulent bill of costs prepared by the defendants, among other issues, egregiously claimed costs for applications for which the plaintiff was the successful party, application costs which were reversed in the plaintiff’s favour, costs for applications which the defendant was not awarded any costs, costs for fabricated applications and application dates that do not exist, and duplicated costs items.
Additional details of the defendants fraud can be read in the plaintiff's pleadings, brief and affidavit. Justice Hollins also ignored binding Supreme Court of Canada case law on the hearing of matters of related proceedings concerning fraud and dishonesty.
Likewise, Justice Hollins' summary of the plaintiff's pleadings of the defendants' malicious conduct is absolutely wrong and omits the defendants' most serious acts of malicious conduct, and the fact that all of the defendants' numerous malicious applications brought in abuse of process, and in collateral attack, against the plaintiff were dismissed by the court in the plaintiff's favour. The procedural matters are not the basis of the malicious conduct and this was made clear to Justice Hollins, including in the plaintiff's brief: "Many of the claim statements that refer to procedures are for context purposes in support of facts relevant to the pleadings."
Click here to read the prior blog post about the defendants' malice, abuse of process, and bad faith.
Justice Hollins' "abbreviated procedural history" curiously omits most of the defendants' malicious applications based on false allegations and lies, all of which were dismissed, including these applications: the defendants' two failed vexatious applications (in 2013 - dismissal in entirety not mentioned; dismissed again in 2014 in the case against the defendants McMahon, Burnett and Gowlings), failed contempt application for costs in abuse of process (dismissed in 2013), and three failed security for costs applications (all dismissed in 2013). It is also significant that Justice Hollins did not make even one mention of the defendants' contempt application (on the disallowed ground of costs - a contempt application can not be brought for costs), which was dismissed. To be clear, the court dismissed all of these applications by the defendants in the plaintiff's favour. It is also significant that the defendants' bringing the same applications multiple times, and all being dismissed, is vexatious and a collateral attack on the court's previous dismissals of the same applications.
Justice Hollins states the plaintiff's amendments are only for new causes of action intrusion upon seclusion/breach of privacy and defamation. A review of the plaintiff's proposed amended statement of claims shows this is not correct at all. The amendments are denoted by underlining in red and clearly also apply to most of the existing claims for the purpose of clarifying them and to add allegations of the defendants' ongoing serious wrongdoing over time.
Further on this point, the pleadings of fraud are largely related to the defendants' fraudulent conduct with the bill of costs which came about after the original statement of claims were filed against McMahon and Burnett and therefore could only be added to the claims as amendments. That the pleadings of fraud and additional serious wrongdoing were indeed part of the plaintiff's amendments can be seen in previous Court of Appeal decision Carbone v McMahon, 2015 ABCA 263 at para. 3:
...an application to amend the statement of claim, described by the appellant as amendments to add “further allegations of egregious misconduct and fraud”.On the matter of the defamation conspired to by Gowlings, the plaintiff indeed did give evidence and Justice Hollins is well aware of the plaintiff's submissions, including in her affidavit, that she would file the defamatory instrument if required by the court but that it should be kept in mind that part of the relief she received in the settlement from Reuters (the other party involved, out of court) would be negated and there was a confidential agreement. The plaintiff made it clear she would file it if required by the court. Justice Hollins made no mention of this.
On the intrusion upon seclusion/breach of privacy pleadings, Justice Hollins erred in law by changing the legal tests for amendments and striking applications, which are based on the pleadings themselves. In addition to properly pleading this cause of action, the plaintiff filed affidavit evidence for these allegations showing that the defendants and specifically Taryn Burnett unlawfully pulled the plaintiff's credit report because they said they had a security for costs application (which was unsuccessful, and which the defendants vexatiously filed a total of three times unsuccessfully). The defendants Burnett, McMahon and Gowlings had no evidence. The plaintiff also filed as evidence a related decision from the Office of the Privacy Commissioner (OIPC) in the plaintiff's favour requiring the defendants to respond to her information request for her credit and financial information, which the defendants unsuccessfully applied to disregard with intention to hide their wrongdoing with the unlawful credit report pull. The plaintiff also made Justice Hollins aware of another OIPC decision against Gowlings in this same matter found here in respect of the "real risk of significant harm" Gowlings caused the plaintiff which Gowlings had failed to acknowledge. See also this case law which found law firms in breach of privacy legislation when pulling litigants' credit reports. See this previous blog post and this previous blog post for further information on Gowlings' breach of the plaintiff's privacy by unlawfully pulling her credit report for the improper purpose of simply having a security for costs application (which was dismissed by the court). Rather than Justice Hollins dealing with the pleadings on this intrusion upon seclusion/breach of privacy matter and acknowledging the plaintiff's evidence and failure of the defendants to argue against the pleadings themselves, Justice Hollins allowed Perry Mack, the defendants' lawyer, to switch the defendant's excuse they already stated to something entirely different and absolutely false because of this OIPC decision against them, and to put their newly fabricated excuse (also not reasonable) forward in Mr. Mack's brief without any affidavit evidence in support. A defendant is not even allowed to argue a purported defence to allegations on applications for amendments and striking - the proper place for this is at a summary judgment application or at trial. Further, in responding to the plaintiff's allegations with a fabricated defence (which would not hold up to the plaintiff's evidence, argument and authorities at trial), the defendants also acknowledged that the plaintiff's allegations on intrusion upon seclusion/breach of privacy indeed disclosed a reasonable cause of action and were properly pleaded. Justice Hollins' ruling on this will not survive the plaintiff's forthcoming appeal.
Justice Hollins' conclusion that the plaintiff's pleadings can be struck due to lack of evidentiary basis is also an error of law. Applications for amendments and striking are based on the pleadings themselves. Case law is clear that pleadings only require minimal evidence, and the plaintiff has more than satisfied this by leading extensive evidence in her affidavit of June 5, 2018, and her testimony at the examination of this affidavit and other matters. The defendants, on the hand, put forward no evidence in support of their striking application or to argue against the amendments. Further, the plaintiff's pleadings do disclose reasonable causes of action, which is clear upon a review of these pleadings well set out in fact, particulars and legal principles.
Another significant error which begs reversal, is Justice Hollins' ruling that it was somehow acceptable for the defendants to bring the very same applications multiple times, which were filled with malicious and false allegations, (vexatious application - twice; security for costs - three times) and on the same basis after already being dismissed by the court. This is the definition of abuse of process and collateral attack. A court can not condone this abuse of process and collateral attack by defendant litigants bringing the same application unlimited times, all unsuccessfully, and then say that pointing this out by the opposite party is somehow a collateral attack, especially given that the plaintiff is the successful party on all of these motions and there is nothing she needs to collaterally attack.
Justice Hollins' unhappy litigant theory is also not correct. The plaintiff filed her statement of claims against McMahon, Burnett and Gowlings before the medical malpractice trial was resolved and while she was overall successful in the medical malpractice suit, having defeated the medical malpractice defendant Dr. Whidden's summary judgment application. Further, it is the plaintiff who was successful in defeating all of the defendants' malicious applications, and she is well within her rights to pursue justice for the enormous abuse of process by the defendants McMahon, Burnett and Gowlings causing damages.
Justice Hollins made extensive additional errors, which shall also be addressed on appeal.
Perhaps the plaintiff's forthcoming appeal of the errors was anticipated by the justice when she stated remarks of this nature: "The plaintiff will no doubt point out..." Readers can be sure the errors will be thoroughly reviewed in this blog also, with a posted appeal factum to come.
As the Court of Appeal earlier stated in a previous decision about this case, and the present applications that were long in waiting, Carbone v McMahon, 2015 ABCA 263:
Most importantly, the appellant is not without her remedies. If the outcome of one or more of the three applications discloses some error of law, the appellant would have the ability to appeal the orders that result, whether that error arises from the sequence in which the applications were heard, or some other issue.Indeed.
Update: Justice Hollins refuses to correct errors in her decision; Plaintiff gives notice of forthcoming appeal
Justice Michele Hollins' "abbreviated" procedural history contains several errors and omissions.
The appealable errors will be dealt with on appeal, but with respect to the procedural timeline errors, the plaintiff brought these errors to the attention of Justice Hollins on February 15 with a request for correction via a corrigendum as she understood procedural history errors were a type of error commonly corrected with corrigendum. Justice Hollins made one minor correction. When the plaintiff noticed that the corrigendum still incorrectly read that an interim matter was pending hearing of summary judgment motions, instead of the actual terms in Justice Earl Wilson's order which stated that it was pending determination as to whether Taryn Burnett's application had merit and that the plaintiff, who was not able to attend and respond to the falsehoods in the malicious application Taryn Burnett attended ex-parte, was to respond to the application. The plaintiff sent the April 2013 order to Justice Hollins showing the actual terms of Justice Wilson's order reflecting this, however, Justice Hollins did not make the correction and on February 20 had her assistant write to the plaintiff that Justice Hollins "has made the only correction by way of corrigendum that she intends to make." As this particular unfounded, malicious application was the only one referred to in Justice Hollins' "abbreviated" procedural history, the errors related to it should have been corrected for a proper record.
To be clear, defendant Taryn Burnett's malicious April 2013 application (carried on with by her colleague Megan McMahon) was not pending the hearing of summary judgment motions in June 2013 (which the plaintiff also won, with reasons given in Carbone v. Whidden, 2013 ABQB 434). Taryn Burnett's malicious application was instead dealt with separately by hearing of it with the plaintiff being present before Justice Wilson on August 14, 2013, at which time the interim matter and the application in its entirety were dismissed when the plaintiff had opportunity to respond to the falsehoods.
Not only does Justice Hollins' "abbreviated" procedural history contain uncorrected errors, it omits the lengthy history of the defendants Megan McMahon and Taryn Burnett's numerous malicious applications with falsehoods (which are summarized in this prior post), all of which were dismissed by the court.
Though not errors with her decision but for the sake of background, Justice Hollins' stated events also made no mention that the defendant Taryn Burnett was removed from being defence lawyer in the medical malpractice case due to misconduct, and that her removal took place shortly after she made the malicious application, referred to here, without evidentiary basis.
Similarly, Justice Hollins made no mention that Justice Earl Wilson was removed from the present case against the defendants Megan McMahon, Taryn Burnett and Gowlings, due to their judge shopping for him to be their case management judge in this case against them, and other issues (read here). Justice Wilson had long entertained the unfounded malicious applications of McMahon and Burnett, much to the medical suffering of the plaintiff, before they were dismissed.
Given there is substantial reference to Justice Wilson in Justice Hollins' decision without mentioning his involuntary exit as case management judge from this case, it is necessary to point this out. These excerpts from the decision Carbone v. McMahon, 2017 ABCA 384 are clear that the Chief Justice of the Court of Queen's Bench removed Justice Wilson as the case management judge in this case against the defendants Megan McMahon, Taryn Burnett and Gowlings:
[6] ...Chief Justice Wittmann wrote to the parties advising that Justice Wilson would not continue to case manage the file because he had a conflict.
[39] Chief Justice Wittmann removed Justice Wilson as the case management judge for an undisclosed conflict [7] well before February 2, 2015 and appointed Justice Hawco to replace Justice Wilson.
Justice Michele Hollins is the fourth case management judge assigned to this case over many years and as such there was great obligation for her to decide the amendments and striking applications with the highest adherence to the principles of natural justice and procedural fairness, which she erred in.
On February 15, the plaintiff gave notice to Justice Hollins and defence counsel Perry Mack of her forthcoming appeal. The Notice of Appeal will be posted on this blog when available.
