Law Society of Alberta: Megan McMahon Served With Formal Complaint Allegations Against Her

The Law Society of Alberta complaint against lawyer Megan McMahon has been escalated to the formal complaints stage.

In a letter dated October 26, 2015, the Law Society of Alberta served Ms. McMahon with the formal allegations against her. The letter addressed to Ms. McMahon states the following allegations of her misconduct:

1. That you have harassed and defamed Ms. Carbone in the course of the Court proceedings;

2. That you were dishonest and misrepresented information to the Courts;

3. That you represented your client in circumstances prohibited by the Law Society'sCode of Conduct.

4. That you fraudulently prepared a Bill of Costs in the amount of $150,000 dated June 19, 2014 and refused to provide requested supporting documentation and receipts;

5.That you, in addition to a host of egregious sharp practices and lies to the Court:

(a) refused to agree to reasonable requests concerning trial dates, adjournments, and waiver of procedural formalities and similar matters; 

(b) engaged in sharp practice and trial by ambush, including refusing to agree to a trial date that met both parties' trial readiness;

(c) late-served Dr. Whidden's expert's report just three months prior to the trial which was contrary to the Rules of Court requiring that any expert report be served prior to scheduling of a trial date and then refused to allow Ms. Carbone to cross-examine the expert on his report prior to trial; 

(d) refused to provide trial exhibits prior to trial; 

(e) refused to name witnesses before trial; 

(f) refused to provide an authored article by the expert prior to trial; and

(g) communicated with and advised on testimony of the expert, Dr. Morris, regarding incisions during his break from the trial examination stand;

6. That you, in advance and anticipation of your fraud, unlawfully obtained a credit bureau report of Ms. Carbone without her knowledge or consent, proof of which appears in her credit bureau report;

7. That you failed to act on your duty of providing relevant legal authorities to Ms. Carbone, a self-represented party and further, that you failed to treat Ms. Carbone with civility, respect and cooperation.

The complainant has requested that an independent third party conduct the complaint against Ms. McMahon given the conflict of interest with her colleague at law firm Gowlings, lawyer James Eamon, being the current Law Society president, but the Law Society will not allow a third party to handle the complaint.

As reported throughout this blog, Ms. McMahon also faces harassment, defamation and fraud proceedings in the related lawsuit against her at the Court of Queen's Bench, which Ms. McMahon has repeatedly delayed for nearly two years. Those proceedings were commenced against Ms. McMahon, an opposing defence lawyer in the underlying medical malpractice matter, for her ongoing harassment and abuse of the complainant, a plaintiff who had to undergo multiple corrective surgeries.

Defendants Megan McMahon and Gowlings Delay Claim Amendments For Years

The defendants Megan McMahon, Taryn Burnett and Gowling Lafleur Henderson have delayed, adjourned and avoided the plaintiff's important application for amendments to her lawsuit for one and a half years to date.

The proposed amendments allege the defendants' further and ongoing harassment of the plaintiff, misleading of the courts, and fraud by the defendant Megan McMahon. The plaintiff first attempted to have her amendment application heard in December 2013, but the defendants delayed it to March 2014, and then again to December 2014 in abuse of process.

After the removal of Justice E.C. Wilson as case management judge in January 2015, whom the defendants sought to have appointed through judge shopping, the current case management judge, Justice D.B. Nixon, was appointed.

Justice Nixon happens to be the client of Perry Mack, the lawyer of the defendants, raising yet another significant conflict of interest in this case. It was disclosed at a case management meeting on May 7, 2015 before Justice Nixon that Mr. Mack was Justice Nixon's lawyer for a number of years. A recusal application has been ordered to be heard at a date to be determined.

In an attempt to avoid the plaintiff's long-awaited case amendments from being heard, at the May case management meeting Mr. Mack told Justice Nixon that it was previously ordered that the plaintiff's application for amendments be heard after their recent application to attempt to dispose of the case was heard, and that the plaintiff's amendment application would not be heard at all if their application was granted. This is absolutely false and misleading, as evidenced by the transcripts of prior hearings in the case. The plaintiff's application for amendments has always been ordered to be heard.

The plaintiff has had to file an appeal to change the sequence of applications to ensure her application for amendments is heard in the interests of justice. It is common legal principle that any amendments be heard before an application for striking by defendants, as it is the pleadings in the Statement of Claim that form the basis of a case.

The defendants are merely trying to take advantage of the plaintiff being self-represented which the courts must not allow, as mandated by the Supreme Court of Canada which has directed that all courts must assure self-represented people access to justice.

Mr. Mack did not give the plaintiff a copy of the filed order from the May 7, 2015 case management meeting until June 29, 2015. The plaintiff then immediately filed an appeal the same day, but the timing for filing an appeal had changed under the new Court of Appeal rules and she had to file an application to request an extension.

Below is the application of the plaintiff filed July 24, 2015 for extension to proceed with her appeal.

Memorandum of Argument filed July 24, 2015
Affidavit filed July 24, 2015

PART I: RELIEF SOUGHT

1. The Applicant/Plaintiff requests an extension for her Notice of Appeal, already filed on June 29, 2015, for appeal action no. 1501-0165AC, further to the subsequent direction from this Court that she must seek the extension to proceed with her appeal. The Applicant is appealing the sequence of applications ordered to be heard by the new case management judge, Mr. Justice D.B. Nixon, who operated erroneously based on misstatements of prior events by counsel for the Respondents/Defendants (also Justice Nixon's personal lawyer).

PART II: BACKGROUND AND STATEMENT OF FACTS

2. The Court of Queen's Bench action with action no. 1401-00821 arises from the malicious harassment, defamation, fraud and misleading of the courts by the Respondents/Defendants Megan McMahon, Taryn Burnett and Gowling Lafleur Henderson LLP, while acting in their capacity as counsel for the defendant Dr. Peter Whidden in the underlying medical malpractice action. In that underlying action, the Respondents brought a series of malicious, frivolous applications in the months preceding their unmeritorious application for summary judgment in attempt to harm the Applicant and confuse the court. All of the Respondents' malicious applications were dismissed by the court, and their summary judgment application was also properly dismissed. The Respondent Ms. Burnett was removed as counsel in that matter for misconduct. The Respondent Ms. McMahon's continuation of reprehensible and malicious behaviour was so egregious the ordeal led to health complications to the Applicant as noted by her doctor, and additional damages.
3. Ms. McMahon's egregious conduct continued over time, which includes she fraudulently misrepresented costs for which she refused to produce supporting detail [Applicant's Appeal Affidavit filed July 24, 2015], failed to voluntarily disclose the actual service date on which she served a formal offer to the Applicant and misrepresented the date for service as being nine years earlier, claimed costs for applications for which the Applicant was successful (including their repeated failure in refusing to produce Dr. Whidden for questionings, and time for questionings Dr. Whidden was ordered to attend) and falsely stated there were no costs to parties for some applications (including the summary judgment application the Applicant was successful on), falsely misrepresented orders in stating the orders not containing costs (differentiated from the orders specifying costs) somehow were costs she could seek which is in fact opposite of the justices' direction, and sought costs for purported application dates which were duplicated or did not even exist, all in the absence of any supporting detail whatsoever. Additional conduct issues and damages to the Applicant therefrom mounted over time, necessitating further claim amendments against Ms. McMahon.
4. After the Applicant stated her intention to add fraud to the action against Ms. McMahon, Ms. McMahon served to the Applicant a further offer to settle the underlying Whidden action on August 22, 2014 [Applicant's Appeal Affidavit filed July 24, 2015], on condition that the Applicant drop her important Whidden matter appeals on merits and costs. The Applicant refused that offer in the interests of justice.
5. The Respondents have repeatedly and unreasonably delayed and adjourned the Applicant's application for amendments in the within action against them since she first sought to have amendments heard in December 2013, now one and a half years ago. The Respondents sought to have their judge of choice Mr. Justice Earl Wilson assigned through judge shopping via letter to him dated January 28, 2014. Remarkably, this judge shopping was done while the Applicant's application for recusal of Justice E.C. Wilson was in fact in progress in the underlying Whidden action. Justice Wilson was removed from the action against the within Respondents in January 2015 on grounds of conflict of interest, apprehension of bias, and judge shopping, and further to the Applicant's brief for recusal filed January 19, 2015 [Applicant's Appeal Affidavit filed July 24, 2015]. The Respondents' unsuccessful judge shopping therefore further delayed the Applicant's action and claim amendments by an entire year, and the Respondents' latest tactics continue to cause unreasonable delays.
6. The second case management judge assigned voluntarily recused himself in February 2015 due to conflict of interest. The third and present case management judge is the Honourable Mr. Justice D.B. Nixon.
7. Perry Mack, QC, counsel for the within Respondents is the personal lawyer of Justice Nixon, giving rise to conflict of interest, for which a recusal application has been ordered. It was disclosed at a case management meeting on May 7, 2015 that Mr. Mack was Justice Nixon's personal lawyer from 2011 through 2013 and that they had known each other for a number of years. Given the lengthy and relatively recent solicitor-client relationship, Mr. Mack must still be considered Justice Nixon's lawyer.
8. In addition to the recusal application, applications for amendments and striking and sequence of their hearing were also discussed at the May 7, 2015 case management meeting. The Applicant appeals from the ordered sequence of applications to be heard which was based on Mr. Mack's strategic misstatements of prior events intended to confuse Justice Nixon who then operated erroneously with regards to the amendment application.
9. The Applicant filed proposed claim amendments in December 2013, February 2014, July 2014, December 2014 and January 2015, all of which remain to be heard due to the Respondents' ongoing delays. The application for claim amendments was scheduled to be heard by Justice Wilson on February 2, 2015 as directed at the case management meeting on December 4, 2014. It should be noted that the Respondents earlier adjourned the Applicant's application for amendments from December 18, 2013 to March 24, 2014 and then again to be heard by Justice Wilson, with Mr. Mack's representation to the Court at that time that he understood the Applicant's amendment application would be heard.
10. After viewing the Applicant's valid proposed claim amendments waiting to be heard and unreasonably refusing to agree to any of them, the Respondents then filed an application for striking. In a blatant misrepresentation and in fear of the amendments being heard, Mr. Mack told his client Justice Nixon at the May 7, 2015 case management meeting, that the December 4, 2014 order under Justice Wilson implied that the Applicant's amendment application was not to be heard until after the Respondents' application for striking, and that it would not be heard at all if the striking was granted. This is absolutely false. The Applicant's application for amendments in waiting since December 2013 with additional proposed amendments filed thereafter was indeed ordered to be heard in any event, as evidenced by the December 4, 2014 transcript of proceedings [Transcript of Proceedings - Applicant's Appeal Affidavit filed July 24, 2015], including at these passages:

          p.11, lines 16- 27:

MS. CARBONE: Mr. Mack is trying to oppose my application

for amendment altogether, despite that he gave his word to the court that the

application would be adjourned before you.

THE COURT: But it can. I can still hear it.

…

I will still do the second part, that is the amendment matter...

          p.31, lines 15- 17:

THE COURT: The matter of recusal can be brought at the same time when the

issue about consolidation and amendment is dealt with and, of course, I will be

hearing all of those matters.

          p.31, lines 27- 28:

THE COURT: So the notion is, therefore, that we will require two days to do the

hearing on the recusal, as well as the matter of consolidation and the matter of

amendment. 

11. The Applicant attended the May 7, 2015 case management meeting before Justice Nixon understanding it was merely to schedule applications, including her amendment application, and was ambushed with Mr. Mack's misrepresentation of it. The Applicant did not expect she would need to have the transcript and amendment materials with her to show what actually happened.

The Present Application

12. The order appealed arose from the case management meeting on May 7, 2015, however Mr. Mack failed to serve the order until June 29, 2015 [Applicant's Appeal Affidavit filed July 24, 2015].
13. Upon receiving the late served order from Mr. Mack, the Applicant filed a Notice of Appeal with this Court the same day, June 29, 2015, together with payment of the $600 filing fee.
14. The Applicant had raised concerns with the hearing sequence of applications discussed at the May 7, 2015 case management meeting and Justice Nixon told her she was entitled to appeal the order if she was not satisfied. Mr. Mack has also been aware of the Applicant's intention to appeal since the Applicant sent a letter dated June 8, 2015 to Justice Nixon with copy to Mr. Mack [Applicant's Appeal Affidavit filed July 24, 2015], in the context of providing availability for scheduling of applications, yet Mr. Mack did not serve the order until nearly two months after the case management meeting. To date the applications have not been scheduled.
15. Subsequent to the filing of the Notice of Appeal, this Court advised the Applicant that she would need to seek an extension for her Notice of Appeal as it was filed out of time.
16. The Applicant understood that a Notice of Appeal must be filed within 20 days from the date the order is served, and the Applicant operated under that timeframe, pursuant to former Rule of Court 506(1)(b), which provides:

506(1) Subject to Rule 514(3) and Rule 577.3, notice of appeal shall be filed in the office of the clerk of the judicial district in which the proceedings have been carried on and in the office of the Registrar of the court to which appeals from that judicial district are required to go, within 20 days

              (b) in the case of an order, after the order has been signed issued and served

17. The Applicant was not aware that the timeframe for filing a Notice of Appeal changed to 20 days from pronouncement, instead of 20 days from service, when the new Court of Appeal Rules came into effect in the fall of 2014, and was waiting to receive the order from Mr. Mack.

PART III: GROUNDS AND ARGUMENT

18. Rule 14.73 (b) of the Alberta Rules of Court provides that:

    In addition to the powers provided for in other Parts of these rules, a single appeal judge or a panel of the Court of Appeal may: (b) cure any contravention, non compliance or irregularity in procedure, or permit or direct any amendment or any deviation from the requirements of these rules with respect to the form or filing of any document.

19. The Applicant had every intention of proceeding with an appeal from the May 7, 2015 order. This is confirmed in the Applicant's email correspondence dated June 1, 2015 to Mr. Mack and letter to Justice Nixon dated June 8, 2015. Having full knowledge that the Applicant intended to appeal, Mr. Mack strategically served the order on the self-represented Applicant nearly two months after the case management meeting.
20. The Applicant diligently filed her Notice of Appeal immediately upon finally receiving the order from Mr. Mack.
21. The Applicant's proposed claim amendments are important and valid. The interests of justice, including access to justice, require that her longstanding application for amendments be heard. It would be unfair to deprive the Applicant of her right to have her amendment application heard, which was in fact already ordered by prior justices in March 2014 and December 2014. In order for the Applicant to be assured this right, her appeal with action no. 1501-0165AC must be allowed to proceed.
22. The Respondents' tactics must be seen for what they are – repeated unreasonable adjournments in abuse of process intended to delay and avoid the Applicant's proposed amendments for a year and a half and until their judge of choice they judge shopped for could hear them, and when that plan failed, confusion of the new case management judge inclined to agree with his lawyer into allowing the Respondents' striking application to go first with the potential for not hearing the Applicant's important and long-awaited amendment application at all.
23. There is no prejudice to the Respondents with the granting of the extension. It is in fact the Applicant who has been prejudiced by the Respondents' ongoing unreasonable delays and adjournments of her application for amendment for an astounding one and a half years. Also, the applications have not yet been scheduled.
24. Justice Nixon's agreement with his lawyer Mr. Mack's statement that the amendments would not need to be heard if the striking application is heard first and granted is void of any legal principles or valid reason: Tran.
25. The Applicant's appeal is arguable and has a good chance of success. The grounds for appeal include procedural unfairness and error in law which are subject to a standard of correctness.
26. The Applicant has completed her Appeal Record [copy attached to Applicant's Appeal Affidavit filed July 24, 2015], and it is ready to be filed.
27. The case authorities are clear that an appeal only need be reasonably arguable to grant extension, that there is a low threshold for amendments, and that amendments must be heard before any application for striking.
28. In Broeker v. Bennett Jones, 2009 ABCA 162 (CanLII), Hunt J. granted the self-represented applicant an extension for her Notice of Appeal from a case management judge's interlocutory order, because the respondent's counsel failed to serve the order within a reasonable period of time resulting in that applicant's late-filing of the Notice of Appeal. In granting the extension, the Court cited Kerr v. Robert Matthews Investments, 2008 ABCA 193 (CanLII), 433 A.R. 251 in affirming that what “must be demonstrated is a reasonable chance of success, not certainty or even likely victory. Here, the applicant's case is not hopeless ...”: para. 7
29. A misunderstanding of a rule as to when time to appeal begins and an intention shown to appeal ought to incline a court to grant an extension for filing of a Notice of Appeal; a court should be generous in the early days of new rules: Byers v. Pentex Print Master, 2003 CanLII 42272 (ON CA), para. 48-50
30. In Tran v. University of Western Ontario, 2015 ONCA 295, the Ontario Court of Appeal found the motion judge erred by failing to grant leave to amend prior to hearing an application for striking. Citing South Holly Holdings Ltd. v. The Toronto-Dominion Bank, 2007 ONCA 456, the court stated that “leave to amend should be denied only in the clearest of cases.” The court referred to South Holly Holdings Ltd. at para. 6:

A litigant’s pleading should not lightly be struck without leave to amend. To the contrary, leave to amend should be denied only in the clearest of cases. This is particularly so where the deficiencies in the pleading may be cured by an appropriate amendment…

31. This Court asserted in Balm v. 3512061 Canada Ltd, 2003 ABCA 98 (CanLII) that the threshold for amendments is low and that any pleading can be amended no matter how careless or late a party is in seeking to amend. The Court further stated that it is desirable that amendments in parallel suits against the same defendants be similar and then consolidated, and that this is a ground not to deny amendments in one suit. The Court also noted the danger in requiring a stiff standard to amend and that such would “produce a motion for summary judgment in favour of the defendant, without requiring that the defendant swear to anything. That is contrary to all principle. And attempts to argue or apply a stiffer test have delayed this suit for a year and a half.” These principles for allowing amendments are also stated in Hatch v. Kelly Peters & Assoc. Ltd., 1988 (BC CA).
32. Further, the order of Justice Nixon states no terms and is not technically valid, and even if there was not direction for the prior order to hear the Applicant's amendment application in any event, though the December 4, 2014 transcript indeed proves this was directed, a recused judge's order is void (Wewaykum) and thus it is an error for Justice Nixon, under insistence of his lawyer Mr. Mack, to assume we are still under the order of Justice Wilson.
33. The Canadian Judicial Council's Statement of Principles on Self-Represented Litigants, September 2006, directs that “Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons” and “...[I]t is important that judges, court administrators and others facilitate, to the extent possible, access to justice for self-represented persons.” Granting the self-represented Applicant an extension for her Notice of Appeal is consistent with this direction.
34. This factum appears online for transparency.

More Conflicts of Interest: Defence Counsel Perry Mack is New Case Management Judge's Lawyer

Conflicts of interest grow in the harassment, defamation and fraud action against the defendants Megan McMahon, Taryn Burnett and Gowlings, and related matters.

In the Carbone v. Megan McMahon and Gowlings lawsuit commenced on January 22, 2014, Justice E.C. Wilson was removed as case management judge from the case in January 2015 on grounds of conflict of interest, apprehension of bias, and judge shopping. Since then, there have been two more case management judges. The 2nd case management judge voluntarily recused himself due to conflict of interest.

The 3rd case management judge is Justice D.B. Nixon. It was disclosed at a case management meeting on May 7, 2015 that defence counsel Perry Mack was Justice Nixon's lawyer for several years from 2011 through 2013. As such, there has been no significant passage of time that changes the long-term solicitor-client relationship and Mr. Mack must still be considered Justice Nixon's lawyer. Apprehension of bias can not be ignored either.

Needless to say, after the conflict of interest that in part resulted in Justice Wilson's removal as case management judge involving Mr. Mack's law firm representing Justice Wilson in unrelated matters, it is boggling that neither Mr. Mack nor his client Justice Nixon have voluntarily removed themselves from the case so far. An application is being scheduled by the plaintiff for recusal of Justice Nixon.

In the underlying medical malpractice matter of Carbone v. Dr. Peter Whidden, the plaintiff has sought to restrict involvement of Megan McMahon, defence counsel for Dr. Whidden, in that matter due to conflict of interest. While the Court found it did not have jurisdiction on conflict of interest concerning an opposing lawyer, it directed that Megan McMahon may not speak on matters relating to her own conduct in the Whidden matter. The plaintiff's motion filed for this and other matters can be viewed here.

The conduct matters include harassment of the plaintiff and fraud allegations involving Ms. McMahon making egregious misrepresentations as to costs, including misstating the date she served an offer to settle the Whidden matter as being 9 years earlier in 2005, rather than the actual offer date of March 4, 2014 which she failed to voluntarily disclose, misrepresenting column costs, in addition to misstating numerous cost items for unjust profit. After the plaintiff stated her intentions in July 2014 that she was amending her action against Ms. McMahon to include fraud, Ms. McMahon sent another formal offer to settle the Whidden lawsuit on August 22, 2014. The plaintiff has refused the offer in the interests of justice which includes seeking a rightful declaration of Dr. Whidden's negligence requiring the plaintiff to undergo multiple corrective surgeries, and because Ms. McMahon has not honoured terms of formal offers to settle she has served in the past.

In the Law Society of Alberta complaints matter, Gowlings lawyer James Eamon was recently appointed president of the Law Society, in its self-described record-low voting participation. It is a significant conflict of interest for Mr. Eamon to oversee functions handling complaints of the defendant lawyers, who are his Gowlings partners. Yet under James Eamon's direction the LSA has refused the plaintiff's request for an independent group to handle the complaints.

Justice E.C. Wilson Finally Removed From Case

Update May 2025: Justice Earl Wilson reprimanded by Canadian Judicial Council, No longer on judiciary

Justice Earl C. Wilson, the case management judge in the case of Carbone v. Megan McMahon and Gowlings, has finally been removed from the case.

The plaintiff's recusal application was scheduled to be heard on February 2, and the parties were informed of Justice Wilson's recusal upon arrival at that hearing, without a recusal hearing even being necessary. A letter from the court's Chief Justice, dated January 28, 2015, also informing of the recusal was received shortly after.

The plaintiff had been seeking this removal for one year since Justice E.C. Wilson was assigned to this case in January 2014 at the blatant judge shopping request of the defendants Megan McMahon, Taryn Burnett, and Gowling Lafleur Henderson, and also amid circumstances of serious conflict of interest and bias.

Prior to this, the plaintiff had sought removal of Justice Wilson from her medical malpractice case, on grounds including that Justice Wilson aligned himself with opposing lawyers Megan McMahon and Taryn Burnett, now defendants in this case, who maliciously harassed and abused the plaintiff to the point of sending her to the emergency. The underlying medical malpractice case was filed after the plaintiff suffered injury by defendant Dr. Peter Whidden, requiring the plaintiff to undergo multiple corrective surgeries. Justice Wilson refused recusal in the medical malpractice case but has now been removed from the case against the lawyers.

The plaintiff's brief that led to the judge's removal can be viewed here.

Investigation Into Lawyer Taryn Burnett's Misconduct Still in Progress, Law Society Advises

The conduct manager at the Law Society of Alberta provided a further update to the complainant, by letter dated January 14, 2015, that the investigation of lawyer Taryn Burnett, with law firm Gowlings, remains in progress.

Ms. Burnett has now been under investigation for over one and a half years to date for her egregious misconduct while she was opposing defence counsel in the medical malpractice case Carbone v. Whidden. Ms. Burnett was removed from acting as defence counsel in that matter in May 2013, and replaced with colleague lawyer Megan McMahon.

In addition to the Law Society investigation, Ms. Burnett and Ms. McMahon face legal proceedings for malicious harassment, defamation, fraud and misleading of the court.

As reported in other posts in this blog, the defendants Ms. Burnett and Ms. McMahon have attempted to circumvent the charges against them by judge shopping for Court of Queen's Bench judge Justice E.C. Wilson to case manage the proceedings against them. The plaintiff has opposed the blatant judge shopping, and a conflict of interest matter, with an application to remove the judge.

Brief of the Plaintiff Carbone for Removal of Justice E.C. Wilson

Below is the Brief of the Plaintiff/Applicant Carbone for the recusal of Justice E.C. Wilson, filed January 19, 2015.

The grounds for the application to remove Justice Wilson from these matters are conflict of interest due to his shared defence counsel law firm with the Defendants Megan McMahon, Taryn Burnett and Gowlings. The grounds also include bias and judge shopping by the Defendants.

PART I: BACKGROUND

The Action

1. This Action concerns the malicious and egregious harassment, defamation and fraud inflicted
by the Defendants Megan McMahon, Taryn Burnett and Gowling Lafleur Henderson LLP
(collectively, "the within Defendants") on the Plaintiff (Applicant), while acting in their
capacity as counsel for the defendant Dr. Peter Whidden ("the Whidden defendant") in the
underlying medical malpractice action, Carbone v. Whidden ("the Whidden action").

2. The Honourable Justice Earl C. Wilson was the case management judge in the Whidden action.
At the judge shopping request of the within Defendants, Megan McMahon, Taryn Burnett and
Gowling Lafleur Henderson LLP ("Ms. McMahon", "Ms. Burnett", and "Gowlings"), Justice
Wilson was assigned as the case management judge in the within action. That judge shopping
request included the within Defendants sending a letter dated January 27, 2014 to Justice
Wilson requesting his assignment as case management judge, without any prior notice or
canvassing of consent from the Plaintiff. Further, the judge shopping request was egregiously
made while the Plaintiff's recusal of Justice Wilson was in fact in progress in the Whidden
action on grounds including Justice Wilson's bias toward the within Defendants Ms. McMahon
and Ms. Burnett, and bias against the Plaintiff.

3. Counsel for the within Defendants, Ms. McMahon, Ms. Burnett and Gowlings, is Perry Mack
("Mr. Mack"), a lawyer at the law firm of Peacock, Linder & Halt LLP ("PLH"). It is significant
that Peacock, Linder & Halt LLP is also the personal legal counsel firm of Justice E.C. Wilson,
the within case management judge. Justice Wilson acknowledged that PLH is his personal legal
counsel at the first case management meeting for the within action held on December 4, 2014,
further to the Plaintiff's application filed November 18,2014 for recusal of Justice Wilson from
the within action.

4. The action against the Defendant Ms. Burnett with Action No. 1301-03943 was commenced on
March 28,2013. The Defendant Ms. Burnett was removed from the Whidden action in May
2013 due to misconduct and has been under investigation by the Law Society of Alberta for
over one and a half years to date.

5. The within Defendants have unreasonably and repeatedly delayed and adjourned the Plaintiffs
applications for amendments from December 2013 to March 2014, and then again to December
12014, so that their judge of choice, Justice Wilson, could hear the applications. The amendments
sought by the Plaintiff included the addition of Ms. McMahon as a defendant. The unreasonable
delays necessitated a separate action against the Defendant Ms. McMahon, with Action No.
1401-00821, filed on January 22, 2014. The Plaintiff seeks consolidation of the actions and
approval of her proposed amendments.

Application Issues Raised

6. The circumstances of concurrent legal representation by PLH and Mr. Mack for both the within
defendants and Justice Wilson, and the egregious judge shopping by the within Defendants for
Justice Wilson's assignment as case management judge, represent a massive conflict of interest.
It is essential to the administration of justice and the public's confidence that Justice Wilson be
recused.

7. The conflict of interest also warrants that counsel for the Defendants, PLH and Mr. Mack, be
disqualified and removed from the within action.

8. The Plaintiff's proposed claim amendments should be allowed.


PART II: LAW AND ARGUMENT

Recusal of Justice E.C. Wilson

Conflict of Interest, Reasonable Apprehension of Bias and Judge Shopping

10. The representation of the within Defendants and the within case management judge, Justice
Wilson, by the same law firm, PLH, represents a serious conflict of interest. It is arguably the
most serious conflict of interest for the same defence counsel to concurrently represent both the
defendants of an action and the judge assigned to the action.

11. Justice Wilson acknowledged at the case management meeting on December 4, 2014 that PLH
is his personal legal counsel. PLH acts for Justice Wilson in unrelated litigation. One matter in
which PLH represents Justice Wilson is the action Somji v. Earl C. Wilson, which was in
progress at the time of that case management meeting.

10. It is trite law that a conflict of interest and reasonable apprehension of bias can be drawn from
certain relationships between a presiding judge and a party appearing before him, such as a
presiding judge's past client appearing before him as a party. Here, in the present circumstances,
the issue is not merely a past association with a party but in fact an ongoing solicitor-client
relationship where Justice Wilson is the client, and counsel for the within Defendants is his
personal legal counsel. The circumstances are further concerning given counsel for the within
Defendants is an authority to Justice Wilson for legal advice. This unique situation makes the
conflict of interest far more serious and gives rise to reasonable apprehension of bias.

11. The Plaintiff is being prejudiced by the dual representation by PLH and will be prejudiced
further if Justice Wilson does not recuse himself. Recusal is the appropriate remedy.

12. A reasonable person would conclude that Justice Wilson is in a conflict of interest and that he is
predisposed to decide in favour of the party represented by his personal legal counsel. A
reasonably informed bystander could reasonably perceive bias on the part of Justice Wilson.

13. The continuation of Justice Wilson as case management judge would put the administration of
justice in disrepute.

14. The Supreme Court of Canada has affirmed that disqualification is appropriate when a law firm
is in a conflict of interest and the bright line rule on its face supports disqualification: R. v. Neil,
[2002] 3 S.C.R. 631; Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39.

15. 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 fundamentalbelief that those who adjudicate in law must always do so without bias or prejudice andmust be perceived to do so.[58] The essence of impartiality lies in the requirement of the judge to approach the caseto be adjudicated with an open mind ....[60] ... the apprehension of bias must be a reasonable one, held by reasonable and rightminded persons, applying themselves to the question and obtaining thereon the requiredinformation. In the words of the Court of Appeal, that test is "what would an informedperson, viewing the matter realistically and practically - and having thought the matterthrough - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."

16. The public confidence in the justice system is dependent on the impartiality of judges in making
decisions. Maintaining this confidence requires not only that a judge is in fact impartial, but
that they are also perceived to be impartial:

It is not merely of some importance but is of fundamental importance that justice shouldnot only be done, but should manifestly and undoubtedly be seen to be done: The King v.Sussex Justices, Ex parte McCarthy, [1924] 1 KB 256

17. The public's perception of ajudge's impartiality must always be maintained for the
administration of justice, even if there is no evidence of a bias or conflict of interest:
Bailey v. Barbour, 2012 ONCA 325

18. 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."

19. The same document refers to a "cooling off period" in the section "Former Clients". Even ifit
were the less serious situation of a former client, Justice Wilson's direct and current
involvement with PLH does not meet the direction: "(c) with respect to the judge's former ...
clients, the traditional approach is to use a 'cooling off period', often established by local
tradition at 2, 3 or 5 years ... "

20. In Boardwalk REIT LLP v. Edmonton (City), 2008 ABCA 176, a Court of Appeal justice recused
himself because he had hired an accountant who was with the same national firm of chartered
accountants as the people engaged by Boardwalk for its assessment appeals. In the present
matters, there is a much more direct connection between Justice Wilson and the law firm
representing the Defendants, making the decision to recuse an obvious and necessary choice.

21. Rule 13.1 of the Alberta Rules of Court provides:

One judge may act in place of or replace another judge if(c) it is inconvenient, improper, inappropriate or impossible for that other judge to act.

22. The circumstances of judge shopping in the present situation are remarkable. Not only did the
within Defendants request Justice Wilson's appointment as case management judge to the
within action, and without consent of the Plaintiff, they specifically requested that Justice
Wilson be appointed via a letter sent directly to him, presumably to solicit his support in such
appointment. Further, the request was made while the application for Justice Wilson's recusal
was in progress in the Carbone v. Whidden action with grounds of bias toward the within
Defendants. A lawyer familiar with the case advised the Plaintiff to seek Justice Wilson's
recusal due to bias.

23. Kent J. explained the serious issues with judge shopping at para. 3 in Schwartz Estate v.
Kwinter, 2012 ABQB 389:

Judge shopping can be a dangerous practice. At its worst, it can call into question the principle of impartiality that is a foundation to a strong, legitimate judicial system. In emerging democracies, one of the measures of an independent, impartial judiciary is a system of judicial assignment that assures impartiality and fairness.

24. Justice Wilson acknowledged that his assignment as case management judge to the within
action was at the within Defendant's request [Transcript of Proceedings of February 28, 2014 in
the Whidden action, p. 25-26].

25. At the case management meeting in the within action on December 4,2014, in Justice Wilson's
usual fashion, consistent with his behaviour in the Whidden action, Justice Wilson yelled at the
Plaintiff without reason, refused to let her speak until well into the meeting though allowed
opposing counsel to speak freely throughout, and granted opposing counsel requests without
hearing from the Plaintiff. Justice Wilson also scheduled the Defendants' application for striking
at the same hearing for the within application for recusal, suggesting Justice Wilson is
predetermined to decide in favour of the Defendants. Further, on December 10,2014 Justice
Wilson entertained an ex-parte application by counsel for the Defendants who sought special
treatment, due to his role as Justice Wilson's personal legal counsel, to change the terms of the
order already set at the December 4,2014 case management meeting.

26. The ramifications and implications of the conflict of interest, which gives rise to further
grounds of bias, are enormous as they relate to Justice Wilson's repeated biased actions intended
to restrict the Plaintiff's Access to Justice and prevent her from having a fair trial in the
Whidden action in May 2014. The biased actions include setting an expedited trial date at the
unilateral request of the within Defendant Ms. McMahon, contrary to the Alberta Rules of Court
8.4 and 8.5 requiring certificate of trial readiness, and despite that the self-represented Plaintiff
had always stated that she could not be ready for trial at that time on legal advice. Further,
among numerous other displays of bias made even more apparent by the conflict of interest,
Justice Wilson allowed the within Defendant Ms. McMahon to serve a Whidden defendant
expert report just three months prior to trial contrary to the Rules, in effort to hinder the Plaintiff
from properly preparing for it, and also refused to adjourn the trial to accommodate the
Plaintiff's treating physician's stated availability for trial in June 2014 with the result that he
was unfairly forced to attend trial immediately upon returning to the country with the alternative
being that he would not otherwise be allowed to testify at all.

27. Justice Wilson is currently a subject of the Plaintiff's appeal before the Alberta Court of Appeal
with constitutional questions relating to the discrimination of self-represented people in
violation of Section 15 of the Charter, which guarantees that every individual is equal before
and under the law and has equal benefit of the law. It is also common knowledge that Justice
Wilson has a number of issues with self-represented people in unrelated matters due to his bias
toward lawyers and has even been sued by a self-represented person for support of deceitful
lawyers: Somji v. Earl C. Wilson.

28. In Brown v. Canada (Attorney General), 2013 ONCA 18 (CanLII), the Ontario Court of Appeal
found that the case management judge had predetermined issues and deprived the party of their
opportunity to make submissions, and further found that assignment of the same judge on a
related matter would result in the case management judge sitting in review of his own decision.
The Court referenced and affirmed the Supreme Court of Canada's decision in Law Society of
Upper Canada v. French stating that a judge can not sit in review of his own decision, and
upheld the prior court's decision preventing the case management judge from being the judge in
a second matter.

[Introduction para.] The case management judge had apparently predetermined that there were viable causes of action in negligence and breach of fiduciary duty. 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 [page 357] the case management judge, were viable.It was not self-evident that they were. The Divisional Court did not err in ordering that the certification motion be heard by another judge. Section 34(2) of the Act, which provides that the senior regional judge shall assign another judge where the case management judge "becomes unavailable for any reason", does not simply contemplate unavailability due to illness or death.The phrase "for any reason" is wide enough to include circumstances in which the principles of natural justice preclude the judge continuing with the case. 

[53] ...I think it can now safely be said that judges cannot sit in appeal of their own decisions ... In my view, a reasonable interpretation of the reasons of the case management judge is that he had determined that viable causes of action existed as he framed them ... I do not think it can be safely said that the respondent had an adequate opportunity to respond. To now give the respondent that opportunity before the same judge would, as the Divisional Court found, result in the case management judge sitting in review of his own decision.

10. In Nazarewycz v. Dool, 2009 ABCA 70, the Court set aside the order of a chambers judge and
ordered his removal due to reasonable apprehension of bias determined by his words and
actons. The Court stated at para. 76 and 77:

76 These remarks and directions, without notice or opportunity for argument, gave rise toan appearance that he was predisposed against the appellant and his counsel, and had prejudged certain issues. 

77 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.

11. The Plaintiff has already been subjected to six years of Justice Wilson's bias, with adverse
health effects. He now wishes to be case management judge for the within Defendants at their
request. The Plaintiff must not be subjected to such bias any further.

12. To date, there has been just one case management meeting in the within action. There is nothing
substantial in progress that would be disrupted by a new case management judge carrying on
with proceedings. Further, the purpose of a case management judge is to efficiently see a case to
trial and there is no benefit to Justice Wilson case managing these matters. Justice Wilson is,
quite frankly, the case management judge at the Defendants' judge shopping for the sole reason
that Justice Wilson has a pattern of deciding in favour of the within Defendants.

13. The issues of conflict of interest, judge shopping and apprehension of bias can only be cured by
the removal of Justice Wilson from these matters.


Disqualification of PLH as Counsel for the Defendants

14. It is a conflict of interest for PLH to represent the within Defendants while also representing
Justice Wilson.

15. The Plaintiff is being prejudiced by PLH acting as counsel for the Defendants given the
concurrent solicitor-client relationship with Justice Wilson, and will be prejudiced further if
PLH is not disqualified from representing the within Defendants.

16. A reasonable person would conclude that PLH is in a conflict of interest. Disqualification is the
appropriate remedy.

17. The maintenance of the public confidence in the integrity of the legal profession and the
administration of justice requires that PLH no longer represent the within Defendants in these
matters.

18. It is contrary to the principles in the Law Society of Alberta Code of Conduct for PLH to
continue as counsel for the Defendants.

19. Mr. Mack became a lawyer at PLH via merger of two firms. The case authorities are clear that
law firms can not escape the rules governing conflict of interest on this basis.

20. The Supreme Court of Canada decisions R. v. Neil, [2002] 3 S.c.R. 631 and Canadian National
Railway Co. v. McKercher LLP, 2013 SCC 39 support disqualification in the present
circumstances.

21. Regarding the issue of conflict of interest in cases of mergers and lawyer mobility, the Supreme
Court of Canada emphasized the importance of preserving the integrity of the justice system, in
the case of Martin v MacDonald Estate (Gray) [1990] S.C.R. 1235.

...The most important and compelling [factor] is the preservation of the integrity of the justice system. It is fundamentally important that justice not only be done but appear to be done in the eyes of the public. Neither the merger of law firms nor the mobility of lawyers can be permitted to adversely affect the public's confidence in the judicial system.Therefore a stricter duty must be imposed on lawyers ...This conclusion should not be taken as an impediment to the mobility of lawyers, the merger of law firms or the growth of very large firms; rather, it is a recognition of a professional responsibility owed by lawyers to the litigation process so that the process may retain the respect of the public.

22. These principles were echoed by the Alberta Court of Appeal in Michel v. Lafrentz 1992 ABCA
8:

The Supreme Court of Canada declines to relax the standards of conflict of interest to accommodate larger law firms or to accommodate mergers ...There is a priority in the maintenance of public confidence in the legal profession's integrity ...A partnership is not a separate legal person, so each partner in Ogilvie & Company is the lawyer for each client of that firm.

23. Further, and in any event, Mr. Mack is not properly on the record as counsel for the within
Defendants. Rule 2.28 1(b) requires that an Affidavit of Service be filed for a Notice of Change
of Representation in order for the change to take effect. The Affidavit of Service for the change
of representation was not filed. Further, the filed Notice of Change of Representation states the
law firm counsel of record is "Peacock, Linder & Halt" though other materials suggest this is
not and was not the current legal name at the time of filing the change. In the Whidden action,
Justice Wilson refused to allow the Plaintiff to proceed with a case management application
until an Affidavit of Service was filed after a lawyer on limited retainer assisted her. The Rule
must be applied consistently and may not be relaxed for Justice Wilson's personal legal counsel.


Plaintiff's Proposed Claim Amendments

24. Rule 3.62 of the Alberta Rules of Court provides:

A party may amend the party's pleading, including an amendment to add, remove, substitute or correct the name of a party, as follows:(b) after pleadings close,

(i) for the addition, removal, substitution or correction of the name of a party, with the Court's prior permission in accordance with rule 3.74, or(ii) for any other amendment, with the Court's prior permission in accordance with rule 3.65;

25. Rule 3.65 states:

(1) Subject to subrule (5), before or after close of pleadings, the Court may give permission to amend a pleading.

26. Justice Cote stated in Balm v. 3512061 Canada Ltd, 2003 ABCA 98 (CanLII) that generally any
pleading can be amended no matter how careless or late the party is in seeking to amend.

27. Also in Balm, the Court further expanded on the low threshold for amendment of pleadings:

One must recall that the original statement of claim here needed no evidence at all, and that any plaintiff can always issue a new statement of claim if the limitation period has not expired. Lack of a factual basis is ordinarily not a ground to strike out a pleading, so long as it alleges facts which (if true) would have given a cause of action (or defence).And a plaintiff with two statements of claim could likely then have the two suits consolidated or tried together.

          And it is desirable that the amendments in parallel suits be similar; that is a ground not to deny 
             the amendments in one suit.

All of these analogies confirm the authorities above which say that a modest degree of evidence justifies an amendment to pleadings within the limitation period. And the analogies show that requiring a stiffer test to amend would be pointless, producing little or no practical result. To require a stiffer standard for evidence to amend would produce a motion for summary judgment in favour of the defendant, without requiring that the defendant swear to anything. That is contrary to all principle. And attempts to argue or apply a stiffer test have delayed this suit for a year and a half.

28. In Hatch v. Kelly Peters & Assoc. Ltd., 1988 CanLII 3111 (BC CA), the Court affirmed that
similar amendments in parallel actions against the same defendants should be allowed:

In my view, under those principles, the judge in chambers in this case ought to have allowed the amendments sought and there is a further consideration, that when identical or practically identical amendments were sought in a parallel action against the same defendants I believe the judge was really bound to allow amendments in this case or to express reasons why he refused to do what his colleague judge did. I would allow the appeal and give leave for the amendments which were disallowed by the chambers judge.

29. In Manson Insulation Products Ltd. v Crossroads C & I Distributors, 2011 ABQB 51, the Court
thoroughly reviewed and summarized the leniency of principles to be applied to amendments
not adding parties.

30. The Court asserted that there is a low threshold for amendment of pleadings and allowed the
amendments in Kent v. Martin, 2011 ABQB 298, in which the Plaintiff sought to amend
pleadings, including adding a Gowlings lawyer as defendant to his defamation claim.

31. An amendment may be permitted to correct an accidental omission in the description of an
element of a cause of action: Yasuda & Marine Insurance Co. Ltd. v. Nosira Shipping Ltd.,
[1985] F.C.J.

32. The amended pleadings of the Plaintiff are timely considering the unreasonable and repeated
delays of the Defendants in this matter, and the amendments do not cause prejudice to the
Defendants, are not hopeless, are not limited by statute, and were pleaded after the amendment
in the first instance due to relevant events arising later. The proposed amendments should be
allowed.

33. In addition, the proposed amendments to the Statement of Claim will facilitate clarifying the
legal issues before the Court and, therefore, facilitate a more timely and cost effective resolution
of the within action.


PART III: RELIEF SOUGHT

34. The Plaintiff (Applicant) respectfully requests the following relief:

(a) An Order granting the recusal of Justice E.C. Wilson from the within action; 

(b) An Order disqualifying PLH from acting in the within action for the within Defendants and removing PLH as lawyer of record for the within Defendants; 

(c) An Order allowing the Plaintiff's proposed claim amendments; 

(d) An Order granting costs of this Application to the Plaintiff on such a basis as this Honourable Court deems appropriate in the circumstances; and 

(e) Such further and other relief this Honourable Court deems just.