Case management judge "has no comment" on Plaintiff's filing request for his recusal

The case management judge in the lawsuit against lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings says he "has no comment" on the plaintiff's request to file materials for his recusal application.

The plaintiff made the request when circumstances beyond her control including being unaware her materials could not be commissioned out of province while out of town hindered her from filing materials for the application for the judge's recusal by the February 3 filing period. In this type of situation, the filing party would normally be "granted leave" to remedy the situation.

Also concerning is Justice Nixon allowed opposing defence counsel Perry Mack to decide the plaintiff would not be allowed a short adjournment in the circumstances. This is despite that Justice Nixon has repeatedly rescheduled the case management meeting for his recusal for nearly two years, and that both Mack and Justice Nixon have delayed her original application for amendments for a total of three years.

Mack also repeatedly instructed Justice Nixon by correspondence to refuse the plaintiff her right to file materials for his recusal and for her further amendment materials for the new issues of the defendants' wrongdoing that surfaced more recently.

Mack's influence on these matters is particularly concerning given that the primary issue for the recusal application is the significant conflict of interest that Mack is Justice Nixon's personal lawyer in unrelated matters.

The plaintiff's  letter to Justice Nixon dated February 14, 2017, below, summarizes these issues and her concerns.

The plaintiff's request for leave to file materials was never addressed by Justice Nixon. Instead, Justice Nixon's last correspondence on these matters to the plaintiff on February 14 stated "the Court has no further comment" and that the matter would not be dealt with until the February 21 case management hearing.

The plaintiff is left to wonder if she is being denied her legal right to file materials for Justice Nixon's recusal, and why Mack, at the centre of the conflict for recusal, was allowed to make decisions affecting her legal rights for her own applications.

The case management meeting will take place on February 21, 2017 at 10:00am.

February 14, 2017

Your Honour:

This is in reply to your letter dated and emailed to me yesterday, February 13, 2017, further to the parties’ correspondence with you on this matter since February 3, 2017, concerning the issue that has arisen with commissioning and filing my materials while out of town, for the applications for your recusal, striking and amendments which have most recently been scheduled to be heard before you on February 21, 2017.

As indicated in my two letters of February 3, 2017, which was the date to file my brief and supporting affidavit for the applications pursuant to the practice note for special applications, I learned that my Alberta affidavit could not be commissioned out of province as confirmed by a lawyer whose email correspondence was also provided to you. I requested leave to file my materials with the suggestion that my evidence be attached to the appendix of my brief to provide you with it as soon as possible, and which I would later swear in an affidavit in -- before the case management meeting.

I sent a further letter to you on February 10, 2017 because I did not receive a reply from you to my February 3 letters. You stated your assistant was away during that time. To this February 10 letter and my prior February 3 letters, you replied with a letter dated February 10 stating I could not attach information as evidence to a brief appendix. As stated in my prior correspondence, I had proposed that only as a temporary solution to provide you with the information in advance of when I could also swear my affidavit in -- before the case management meeting given the logistics and out of province commissioning issue which is explained by a law firm in the email I attached to my February 3 correspondence. You still did not provide any direction on leave and whether I could swear the evidence in an affidavit in -- before the case management meeting on February 21.

As I had still not received direction from you on leave I requested, I sent you a further letter yesterday, February 13, once again requesting leave to file my materials as I proposed, and I also indicated I was looking into having my affidavit notarized as an alternative, which your assistant Laura suggested to me may be possible. I further, reluctantly, suggested that because the case management meeting is scheduled just one week away on February 21 and I had not yet had opportunity to file my materials, that rescheduling it to the next date available may be appropriate in the circumstances.

To my letter yesterday February 13, you responded by letter also yesterday February 13, and indicated you could not give me legal advice. You further stated you would only allow the case management meeting to be rescheduled if opposing defence counsel Perry Mack agreed to it. I am greatly concerned by your response for these reasons:

a)   First, I was not requesting legal advice. I requested leave to file my materials given that the circumstance beyond my control prevented me from having my evidence commissioned out of town and filed by February 3, the filing date further to the procedure set out in the special applications practice note. I had further requested leave to provide a sworn copy of my affidavit by the February 21 case management meeting date, which I suggested also be appended to my brief – not to be considered evidence but to provide you and opposing counsel with it as soon as possible before the case management meeting. Whether the affidavit could be notarized is irrelevant to the fact that you could allow leave to submit my -- commissioned affidavit at the case management meeting, with optionally my information attached to my brief in order to provide you with it as soon as possible, which would obviate the need for any notarizing.

To date you have not given any direction on this leave I requested. As indicated in the Alberta Rules of Court, the relevant rules of which I have pasted below for ease of reference, this leave I have requested is a proper expectation of judges to decide, and is not considered legal advice.

b)   Secondly, despite that you have not decided on this leave to file materials which in my view should be the first consideration, you indicated in your correspondence that the case management meeting would only be rescheduled to the next available date if Mr. Mack agrees to it.

As you know, the primary issue for my application for your recusal is that defence counsel Mr. Mack is also your personal lawyer in unrelated matters, which represents a significant conflict of interest as you are predisposed to decide matters in his favour. I do not even know how it is that you have not already voluntarily recused yourself in the circumstances, but that is a matter to be decided at the hearing.

I find it greatly concerning that you would leave it up to Mr. Mack to decide whether the applications can be rescheduled, and also despite that you are aware from Mr. Mack’s correspondence dated February 3 and 13 that he egregiously stated that he does not want me to be allowed to have my right to file materials for the recusal application, the issue of which Mr. Mack is at the centre, and my amendment application. Mr. Mack does not want me to file materials because he knows that my forthcoming strong evidence for the applications makes him and his defendant clients uncomfortable. Of course, Mr. Mack has refused that the recusal application be adjourned, despite that this is opposite the principles set out in the Canadian Judicial Council Statement of Principles on Self-represented Litigants. This is also despite that you, for whatever reason, have delayed your own recusal application for nearly two years since the May 7, 2015 case management meeting, the most recent delay of which involved giving away my December 15, 2016 hearing date to lawyer Taryn Burnett, the defendant in my case, so that she could use my hearing date for her unrelated trial with you presiding over it, the details of which I earlier confirmed with Mr. Mack. Further, Mr. Mack has delayed my amendment application, the original application of which (with further amendments filed later) was filed in December 2013 and has now been in waiting for three years.

Accordingly, it is very difficult to understand why, when it comes to my situation with circumstances beyond my control, you would not allow a short rescheduling of the February 21 date so that I can have time to properly swear and file my materials for the applications as I am entitled.

c)   I am entitled to file a brief and supporting affidavit for my application for your recusal, as well as further materials for my amendments application due to new circumstances of wrongdoing by the defendants, some of which I earlier advised you of in my February 3 correspondence, which have come to light since our last case management meeting on May 7, 2015.

As indicated in my prior correspondence, this right to file materials for applications is set out in the Alberta Rules of Court and special applications practice note. Further, the legal interests and rights of a self-represented person may not be hindered by procedural and evidentiary rules as advised by the Canadian Judicial Council Statement of Principles on Self-represented Litigants, which statements include:

Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.

Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.

Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.

I also draw your attention to Alberta Rules of Court Rules 1.4(1) and 1.4(2)(g) and (h), and 13.5(2) and (3), below, which provide that a judge may make proposals and suggestions and give guidance, and which further state that a judge may adjourn an application or extend the time for doing anything in the proceeding. Accordingly, I have not asked you for legal advice in my letters; I understand I have appropriately requested leave which relates to your obligations as a judge.

1.4(1) To implement and advance the purpose and intention of these rules described in rule 1.2 [Purpose and intention of these rules] the Court may, subject to any specific provision of these rules, make any order with respect to practice or procedure, or both, in an action, application or proceeding before the Court

(2) Without limiting subrule (1), and in addition to any specific authority the Court has under these rules, the Court may, unless specifically limited by these rules, do one or more of the following:

(g) give advice, including making proposals, providing guidance, making suggestions and making recommendations;

(h) adjourn or stay all or any part of an action, application or proceeding, extend the time for doing anything in the proceeding, or stay the effect of a judgment or order;

13.5 (2) The Court may, unless a rule otherwise provides, stay, extend or shorten a time period that is (a) specified in these rules

 (3) The order to extend or shorten a time period may be made whether or not the period has expired.

I believe these present circumstances are worthy of accommodation under the above rules for leave to be granted, especially for a self-represented person.

I look forward to hearing from you as soon as possible.

Evidence: Privacy lawyer Taryn Burnett unlawfully obtained Plaintiff's credit report

On February 10, 2017, law firm Gowlings finally disclosed some documents to the plaintiff further to the December 12, 2016 decision of the Alberta Privacy Commissioner ordering Gowlings to respond to the plaintiff Carbone's access request for her credit and financial information, pursuant to the Personal Information Protection Act (PIPA).

The documents disclosed by Gowlings confirm the identity of the lawyer who invaded the plaintiff's privacy and unlawfully obtained her credit report without consent as Taryn C. Burnett.

The Equifax credit report search document shows Burnett's full initials "TCB" on the reference line, along with Gowlings' internal file number for the Whidden medical malpractice lawsuit.

Credit report pulled by Gowlings shows Taryn C. Burnett initials "TCB" 

on requester reference line. Personal information redacted.

Burnett was an opposing medical malpractice defence lawyer for Dr. Peter Whidden, who injured the plaintiff and caused her to undergo multiple corrective surgeries. Burnett was later removed from acting as defence lawyer in the lawsuit at about the same time as her credit report pull.

Ironically, Burnett also practices privacy law and was well aware that pulling the plaintiff's credit report without consent was an illegal act and a violation of PIPA.

In addition to confirming Burnett as the lawyer responsible for the unauthorized credit pull, the disclosed documents also reveal Burnett was in a flurry of activity on April 11, 2013 searching out the plaintiff's assets through various other online searches, including property searches. All show the requester reference information as "TCB" and Gowlings' file number for the Whidden lawsuit.

The plaintiff first learned of the unlawful credit report pull when she saw that a "hard" credit inquiry by Gowlings appeared in a credit report she obtained for herself in the fall of 2015.

In an earlier blog post, it was reported that Megan McMahon, a sometimes defence lawyer on the Whidden lawsuit, acknowledged to the Law Society of Alberta, in a complaint that is still in progress, that they pulled the plaintiff's credit report. McMahon attempted to justify the privacy breach by stating it was somehow proper because they had a security for costs application. In reality, McMahon lost the security for costs application because the court determined it had no merit, and a security for costs application is not a valid reason to pull a credit report. McMahon and Burnett did not even make a request before the court to obtain the credit report, nor would the court have entertained such a request in the circumstances.

The plaintiff also confirmed with Service Alberta, administrator of PIPA, that a security for costs application was not a valid reason for the lawyers to pull her credit report.

Unrelated prior decisions by the Privacy Commissioner of Canada have found law firms to be in contravention of privacy legislation PIPEDA by obtaining credit reports without the complainants' consent: Law firms collected credit reports without consent, 2006 CanLII 34365 (PCC). Court decisions also confirm the unlawfulness of pulling credit reports without consent.

The plaintiff will now prepare her full complaint on Gowlings' and its lawyers' privacy violations of PIPA for submission to the Office of the Information and Privacy Commissioner of Alberta (OIPC).

Plaintiff's hearing date given away to Defendant lawyer raises more questions of fairness

In an earlier blog post, it was reported that Justice D. Blair Nixon, the current case management judge in the suit against the lawyers and their law firm Gowlings, had informed the parties he was assigned to the trial of another case and was therefore unavailable to hear the plaintiff's scheduled applications on December 15, 2016, and that they would need to be rescheduled.

At that time, the plaintiff's application for the judge's recusal had already been in waiting for one and a half years, and the plaintiff's application for amendments (with further proposed amendments filed later) had been in waiting for three years.

It has now come to light that the plaintiff's long awaited hearing date of December 15, and Justice Nixon's availability, were given away to Taryn Burnett - the lawyer and defendant in this plaintiff's case - so Burnett could use that timeslot and Justice Nixon's availability for her own unrelated trial in which she was defence lawyer. That unrelated trial was scheduled to run from December 5 - 16, 2016.

This new revelation of giving away the plaintiff's court resources to the defendant lawyer for her trial, and Justice Nixon presiding over it, raises issues of partiality and bias and will be added as a new ground to the plaintiff's pending application for recusal. The recusal application is already grounded in another conflict of interest with Justice Nixon.

The other issue is that this resulted in yet another delay in this case plagued with ongoing delays by the court and Gowlings. The chronic delays are extremely unfair to the plaintiff who has a right to have her claims resolved in a timely manner.

Not surprisingly, Gowlings has recently added a new delay of its own: On December 12, 2016 the Privacy Commissioner denied Gowlings' application to ignore the plaintiff's access request seeking her credit and financial information, and ordered Gowlings to respond to it, as reported in this earlier blog post. But, on January 12 Gowlings informed the plaintiff it would delay its response for an additional 30 days, which all too conveniently avoids their impending privacy breach disclosures from being referenced in the plaintiff's court brief for amendments by its filing deadline.

Privacy Commissioner orders law firm Gowlings to respond to personal information access request

On December 12, 2016 the Alberta Office of the Information and Privacy Commissioner (OIPC) issued a decision ordering defendant Gowlings to respond to the plaintiff Carbone's access request for records containing, and relating to, her credit and financial personal information.

Click here to read the Decision #003172 on the OIPC website

The decision follows Gowlings' unreasonable refusal to provide the personal information records in response to the plaintiff's access request she made pursuant to the Personal Information Protection Act (PIPA). The plaintiff made the access request after she learned in the fall of 2015 that Gowlings lawyers Taryn Burnett and Megan McMahon unlawfully obtained her credit report in 2013 and violated her privacy.

In Gowlings' attempt to prevent the plaintiff from accessing her personal information, Gowlings made a baseless application to the OIPC seeking authorization to disregard the plaintiff's access request. In usual fashion, Gowlings' application contained a variety of falsehoods about events and their status, fabrications about the plaintiff, and failed to provide any evidence.

In largely denying Gowlings' application and ordering it to respond to the access request for records containing, and relating to, the plaintiff's credit and financial information, Privacy Commissioner Jill Clayton's decision included these findings:

[8] The Respondent says that her May 11, 2016 request to the Organization [Gowlings] followed from a conversation with Service Alberta about the Organization’s having obtained the Respondent’s credit report. The Respondent says that she became aware that the Organization obtained her credit report when she saw that a “hard” credit check by the Organization appeared in a credit report she obtained in the fall of 2015. She says that a “hard” credit inquiry negatively impacts a credit score. The Respondent further says that Service Alberta informed her that the Organization did not have the authority to obtain the credit report in the circumstances, and informed her of the PIPA process for requesting her personal information. 

[9] The Respondent then says that, on June 6, 2016, she sent correspondence to the Organization with a request for a narrowed subset of records relating to her personal credit and financial information. The Respondent explains that she requested this narrowed subset of records sooner than the original request for all personal information, with a view to first obtaining the records related to the alleged improper credit check and then to assess whether further personal information records would be required. The Respondent maintains that the credit report is not part of her lawsuit against the Organization at this point. The evidence provided by the Respondent is that the Organization pulled the credit report for a security for costs application.  

[10] In her submission, the Respondent also cites two reports from the Privacy Commissioner of Canada in which two law firms were found to have contravened PIPEDA when they obtained credit reports of the complainants, without their knowledge and consent. The Respondent further cites a Federal Court case that makes a similar finding. 

[15] ...The Respondent has made an access request under PIPA only once. There is no evidence before me that the Respondent has made this same access request more than once. Therefore, I find that the access request is not repetitious. The access request is also not systematic in nature.

[16] I find that the Organization has not met its burden of proving that the Respondent’s access request is repetitious or systematic in nature. Therefore, that part of section 37(a) is not met.

[18] As I have found that the request is not repetitious or systematic in nature, it is not necessary to decide whether the request would unreasonably interfere with the Organization’s operations. However, if I were to decide this, I would find that it did not apply because the Organization did not argue it or provide any evidence. 

[19] I find that the Organization has not met its burden of proving that the Respondent’s access request would unreasonably interfere with the operations of the Organization. Therefore, that part of section 37(a) is not met.

[24] There is nothing on the record in the Organization’s application to establish that the Respondent had an ulterior improper motive for making the access request. The Respondent does not have to prove that the request was for a legitimate purpose. However, if the Respondent did have that burden, I would find that the Respondent has adequately explained why she is seeking the information: she intends to bring a PIPA complaint.

[25] I find that the Organization has not met its burden of proving that the Respondent’s access request amounts to an abuse. Therefore, that part of section 37(a) is not met.

[31] There is nothing on the record in the Organization’s application to establish that the Respondent’s access request is vexatious. Based on the Court’s decision in Bonsma, there is no evidence of an ulterior improper motive for making the access request.

[32] I find that the Organization has not met its burden of proving that the Respondent’s access request is vexatious. Therefore, that part of section 37(b) is not met.

[39] …[T]he Respondent’s narrowed access request for her credit and financial information is another matter. That request clearly meets the definition of personal information because it is for information “about” the Respondent. Therefore, the Respondent’s narrowed access cannot be said to lack merit and is not frivolous. In coming to this conclusion, l am also mindful that the purpose of PIPA is to protect personal information.

[40] I find that the Organization has not met its burden of proving that the Respondent’s narrowed access request for her credit and financial information is frivolous. Section 37(b) is not met for that access request.

[42] …[T]he Organization’s application to disregard the Respondent’s narrowed access request for her credit and financial information is denied. The Organization must now respond to that narrowed access request according to PIPA. 

The plaintiff's next step is to review the records Gowlings needs to produce to determine the full extent of Gowlings' misuse of her personal information. The plaintiff will then submit to the OIPC a formal PIPA complaint about Gowlings' unlawful credit pull in violation of PIPA, along with her findings of any further breach upon review of the records.

Details of the unlawful credit check and the plaintiff's PIPA request were reported in these earlier blog posts: February 2016, June 2016, November 2016.

As reported throughout this blog, the plaintiff is also prosecuting defendants Megan McMahon and Taryn Burnett in a lawyer abuse lawsuit with amendments to come arising from their harassment, defamation, fraud, misrepresentations to the courts, and other matters of serious misconduct they inflicted on the plaintiff while they were opposing defence lawyers for Dr. Peter Whidden in the underlying medical malpractice lawsuit. The next court proceeding in the lawyer abuse lawsuit is scheduled to be heard in February 2017.

Update January 12, 2017: Consistent with Gowlings' ongoing delays with proceedings, Gowlings has informed the plaintiff it will delay its ordered access response to the plaintiff beyond the January 12 deadline by up to another 30 days.

New delay in lawsuit against lawyers Megan McMahon and Taryn Burnett pushes delays to crisis level

The Carbone case against defendant lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings has been plagued with delays since 2013 by the defendant lawyers. Now a new delay by the court pushes the hearing of the scheduled applications to next year.

On November 24, 2016, the court sent a letter to the parties, advising that Justice D.B. Nixon is no longer available for the case management meeting scheduled for December 15, 2016. The letter offered his next availability on February 21, 2017. The news came just one day before the plaintiff's brief for the scheduled applications for recusal of the judge, amendments and striking was to be filed.

The ongoing delays have unreasonably prolonged the plaintiff's wait for justice in these serious matters concerning the defendant lawyers' malicious harassment, defamation, fraud and misrepresentations to the courts in the underlying medical malpractice matter.

The plaintiff is entitled to a timely and fair hearing of her matters. The delays also threaten her access to justice.

With the hearing being rescheduled to February 21, 2017, the plaintiff's brief will be posted on this blog in early February 2017.

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In related matters, the plaintiff continues to deal with the privacy breach matter and law society complaints, all still in progress.

The privacy breach matter, concerning Taryn Burnett (who ironically also practices privacy law) and Megan McMahon unlawfully obtaining the plaintiff's credit report, is before the Office of the Privacy Commissioner (OIPC), which has its own delays.

On August 4, 2016, the plaintiff/complainant filed a formal response with evidence with the OIPC to oppose Gowlings' OIPC application which sought to disregard the plaintiff/complainant's PIPA request to access her personal information related to the credit and financial information wrongfully in Gowlings' possession.

Once the plaintiff/complainant obtains access to her personal information and has full details of the extent of the lawyers' and Gowlings' misuse of her credit and financial information, she will proceed to the next stage with the prescribed OIPC privacy breach complaint process for resolution to the following issues, as stated in her OIPC August 4 submission:

1. The privacy breach concerning Megan McMahon and Taryn Burnett’s unlawful
obtaining of [the complainant's] credit report and financial information and misuse of it. 

2. Gowlings' failure to file the required privacy breach notification report upon learning
of Ms. McMahon's and Ms. Burnett's unlawful obtaining and usage of [the complainant's] credit report. 

3. Suggestion for recommendations to be made for Gowlings to implement and enforce
privacy standards that will protect opposing parties from unauthorized access to credit
reports by its lawyers.

Updates in these matters will be reported in this blog.

Lawsuit against lawyers Megan McMahon, Taryn Burnett and Gowlings to proceed after lengthy delays

Update November 25, 2016: Hearing delayed again to February 2017

After lengthy delays in the case Carbone v. Megan McMahon and Gowlings, the case is scheduled to proceed with a hearing at the Court of Queen's Bench on December 15, 2016 at 10:00am.

In this case the defendants, lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings, face allegations of their malicious harassment, defamation and defrauding of the plaintiff in the underlying medical malpractice case, among other egregious misconduct by the lawyers.

These are the court applications that will be heard at the scheduled hearing:

1) Plaintiff's application for recusal of the new case management judge

• Justice Earl C. Wilson was removed as case management judge in this case in January 2015 in the face of his undeniable bias, conflict of interest, and blatant judge shopping by the defendants for his assignment to the case, among other transgressions, amounting to judicial misconduct. Justice D.B. Nixon was subsequently appointed case management judge.   
• At a case management meeting in May 2015 before Justice Nixon, it was learned that Perry Mack, the lawyer for the defendants, is also Justice Nixon's personal lawyer in unrelated matters. It is a significant conflict of interest for a judge to preside over a case in which one of the parties is represented by his own personal lawyer. The circumstances warrant Justice Nixon's recusal as case management judge.

2) Defendants' application for striking

• Long after the plaintiff commenced her lawsuit with action nos. 1401-00821 and 1301-03943 against the defendants and made an application for amendments to add further allegations against them, the defendants filed an application  to strike the lawsuit in an attempt to prevent the further allegations damaging to them from being heard.
• Despite that the plaintiff's original application to amend to add further allegations has always been allowed to be heard since December 2013, and was filed long before the defendants filed an application to strike, defence counsel told Justice Nixon that they were somehow entitled to have their application to strike heard first, in their attempt to deprive the plaintiff of her right to have her important amendments heard. 
• Also concerning is that the applications for recusal and striking are being heard at the same time. The recusal application should be heard independently and dealt with first.

3) Plaintiff's application for amendments

• As of December 2016, the plaintiff's original application for amendments will have been in waiting for an astounding three years since December 2013, in large part due to the defendants' ongoing unreasonable delays. 
• The plaintiff's application for amendments also includes proposed amendments with further allegations against the defendants filed in February 2014, July 2014, December 2014 and January 2015. In addition, new proposed amendments will be filed with allegations arising from the defendant lawyers' unlawful obtaining of the plaintiff's credit report and other transgressions that have come to light over the past year. 

The plaintiff's brief for these applications, which will include the plaintiff's grounds for recusal and amendments, and further details of the defendant lawyers' misconduct, will be posted on this blog when available.

Defendant Gowlings refuses Plaintiff's PIPA request for personal information

Update December 2016: The Privacy Commissioner has ordered Gowlings to respond to the plaintiff's credit and financial personal information access request in a decision dated December 12, 2016.

Alberta's Personal Information Protection Act (PIPA) applies to private sector organizations for the protection of personal information and to provide a right of access to an individual’s own personal information. But law firm Gowlings doesn't want the plaintiff, who sued them for egregious misconduct, to exercise this legislated right to seek her personal information from Gowlings.

After receiving confirmation that Gowlings obtained the plaintiff's credit report without her consent or knowledge, the plaintiff made a request to Gowlings pursuant to PIPA for access to her personal information within Gowlings' possession.

The plaintiff made her initial PIPA request to Gowlings on May 11, 2016, with a narrowed request on June 6, 2016 for a subset of records relating specifically to her credit and financial information (improperly) in Gowlings' possession.

Gowlings' response to the plaintiff was required by June 27, 2016 pursuant to PIPA, but no response was received. On June 29, 2016 the plaintiff had still not received a response from Gowlings and she informed them of their failure to respond to her request within the required timeframe.

The privacy officer for Gowlings replied to the plaintiff, stating he sent a request on June 21, 2016 to the Office of the Information and Privacy Commissioner (OIPC), seeking authorization to ignore the plaintiff's PIPA request for her personal information. He claimed he inadvertently forgot to send the plaintiff a copy of his correspondence to them.

Also on June 29, the plaintiff sent correspondence to OIPC with concerns about Gowlings' failure to provide a response within the required timeframe, and Gowlings' further failure to provide the plaintiff with a copy of Gowlings' correspondence to OIPC. The plaintiff also advised that her full formal complaint to OIPC would follow. Below is the plaintiff's preliminary notice of complaint to OIPC.

Attn: Jill Clayton

Office of the Information and Privacy Commissioner

Via email to generalinfo@oipc.ab.ca

June 29, 2016

Dear Ms. Clayton:

This is a preliminary letter to advise you of my concerns with the improper manner in which Gowling WLG (“Gowlings”) has failed to respond to my request for my personal information in their possession within the 45 day requirement to respond, pursuant to the Personal Information Protection Act (PIPA). This is also further to Gowlings’ further failure to copy me on their correspondence they indicate they sent you on June 21, 2016 in which they seek authorization to disregard my PIPA request, which I only learned of today, June 29.

My further concerns with these issues and the inaccuracies in Gowlings’ June 21 correspondence to you will follow in my forthcoming OIPC review request with the prescribed form, however, given that Gowlings’ letter was sent to you more than a week ago without my knowledge, I felt it was necessary to contact you immediately.

Please also note that I spoke to Christina with your Office of the Information and Privacy Commissioner (OIPC) this morning and she searched for correspondence received from Gowlings and confirmed to me that to date no such correspondence has been received from Gowlings, so I am not sure of your status in receiving their correspondence and anticipate you will now be able to review my within correspondence concurrently.

PIPA Request Background

On May 11, 2016, by way of letter and email to Gowlings privacy officer Michael Herman (attached), I made a PIPA request for my personal records within Gowlings’ possession. This request followed my conversation with Service Alberta, administrator of PIPA, regarding Gowlings’ and, specifically, lawyers Megan L. McMahon and Taryn C. Burnett’s improper obtaining of my credit report which was done without my consent or knowledge. I became aware that Gowlings obtained my credit report when I saw that a “hard” credit check by them appeared in a credit report I obtained. Service Alberta advised me that Gowlings did not have authority to obtain my credit report in the circumstances and informed me of the PIPA process for requesting my personal information from Gowlings.  

On June 6, 2016 I sent email correspondence (attached) to Mr. Herman with a request for a narrowed subset of records in Gowlings’ possession relating to the personal credit and financial information Gowlings had (improperly) in their possession. I requested that this narrowed subset of records be sent to me sooner than the original request for all personal information, with a view to first obtaining the records directly related to the improper credit check and then assessing whether further personal information records would be required. Mr. Herman’s email reply dated June 6, 2016 (attached) confirms he received this narrowed records request.

Pursuant to the 45 day requirement for Gowlings to respond to my PIPA request, Gowlings’ response to me was due two days ago, on June 27, 2016. I sent an email to Mr. Herman confirming their failure to respond to my request within the required timeframe. Mr. Herman replied to my email, stating he sent a letter to OIPC, directly to you, dated June 21, 2016, and attached said correspondence. Mr. Herman claimed he “forgot” to send me a copy of the correspondence to you.

I note that Mr. Herman’s June 21 correspondence to you he “forgot” to send me is filled with incomplete and inaccurate statements, in addition to completely irrelevant matters, in support of his request for authorization to disregard my PIPA request for my personal information in Gowlings’ possession. The actual purpose of Gowlings’ request to disregard my PIPA request is to conceal evidence of their breach of PIPA, and other Alberta legislation, related to their unlawful obtaining of my credit report. This tactic is consistent with their ongoing unethical tactics toward me, some of which I outline below as background.  

I further note that Mr. Herman’s correspondence to you fails to make any mention of my narrowed preliminary PIPA request for records relating to my credit and financial information in Gowlings’ possession. At this time, this is the extent of my personal information I am seeking from Gowlings.

General Background

I am the plaintiff in a medical malpractice action against defendant Dr. Peter Whidden, who injured me and caused me to undergo multiple corrective surgeries. Megan McMahon is a sometimes defence lawyer for the defendant Dr. Peter Whidden. Taryn Burnett is a former lawyer for Dr. Whidden, who was removed from that role at approximately the same time as their improper obtaining of my credit report in April 2013. That medical malpractice action is still in progress within the channels of the Canadian court system.

Throughout the course of the medical malpractice action Ms. McMahon and Ms. Burnett engaged in ongoing egregious and malicious harassment, defamation, misrepresentation, fraud, and abuse of process, toward me, a self-represented person, to the point my doctor referred me to the emergency upon noting health complications. Ms. McMahon and Ms. Burnett also brought a variety of malicious and repetitive applications against me in abuse of process in their desperate attempts to avoid the merits of my action and conceal the truth, and inflict physical, emotional and financial harm on me. All of their malicious applications against me were properly dismissed by the court. Mr. Herman’s slanted and inaccurate account of these matters would have you believe otherwise.

Ms. McMahon and Ms. Burnett’s egregious tactics and misconduct and their resulting damages to me necessitated that I bring a lawsuit against them. This action is also in progress and I attach the related decision Carbone v McMahon, 2015 ABCA 263 for your review.

I initiated a Law Society of Alberta complaint against Ms. McMahon, in progress, and Ms. McMahon purported in her reply that she and her colleague somehow thought it appropriate to obtain my credit report, and without my knowledge or consent, because they made a court application in the medical malpractice action for security for costs in April 2013, which they in fact lost. The court properly dismissed their application for security for costs because it had no merit. Quite notably, they vexatiously made three separate applications for security for costs in 2013 and they were all properly dismissed by the court. I understand from Service Alberta that the provisions of PIPA do not provide for obtaining an opposing party’s credit report under such circumstances and, moreover, the court certainly did not make any order to allow them to obtain my credit report, nor did Ms. McMahon and Ms. Burnett make any application or request of any kind to obtain my credit report. The purpose of their obtaining of my credit report was to search out my assets and to invade my privacy in their ongoing obsession with me. A Law Society of Alberta complaint is also in progress against Ms. Burnett at the conduct committee re-examination stage. The unlawful obtaining of my credit report as it relates to Ms. Burnett has not yet been introduced to the law society complaint but it is forthcoming. Mr. Herman’s account of these matters would have you believe otherwise.

In his letter, Mr. Herman also goes into other irrelevant details relating to Justice Earl Wilson, the former case management judge in my medical malpractice, and for a short time the case management judge in my case against Ms. McMahon, Ms. Burnett and Gowlings. Ms. McMahon and Ms. Burnett egregiously judge shopped for Justice Wilson to be their case management judge in the action against them, while my application for Justice Wilson’s recusal was in fact in process in the medical malpractice action. In January 2015, Justice Wilson was eventually removed from case managing my cases on grounds of judge shopping, bias and conflict of interest.

Conclusion

Mr. Herman’s foray into irrelevant matters of my medical malpractice lawsuit, my case against Ms. McMahon, Ms. Burnett and Gowlings, and my law society complaints against them, and other matters irrelevant to my PIPA request, is perplexing and an abuse of the OIPC process. Gowlings’ unlawful obtaining of my credit report, the subject and purpose of my PIPA request, is not even part of my lawsuit against them at this point.

Mr. Herman’s concentration on irrelevant matters and failure to observe the real reason for my PIPA request which he is well aware of – Gowlings’ unlawful obtaining of my credit report – is merely a smokescreen in resisting production of my credit and financial information improperly in their possession, because they know it exposes them to further liability, including potential conviction for serious breaches of PIPA.

I am deeply offended by Ms. McMahon’s and Ms. Burnett’s egregious invasion of my privacy in improperly obtaining my credit report and I look forward to an appropriate resolution.

I anticipate submitting my formal OIPC review request within the coming week.

Thank you for your attention. 

Defendant Megan McMahon Acknowledges Unlawful Credit Report Pull

In response to the Law Society of Alberta complaint allegations served against defendant lawyer Megan McMahon, she has acknowledged that her law firm Gowlings did indeed pull the opposing plaintiff/complainant's credit report without the plaintiff's consent. This is one of a number of misconduct issues Ms. McMahon faces before the Law Society.

Under Alberta legislation, the act of pulling a credit report without consent and without meeting conditions set out in the Alberta Fair Trading Act and Alberta Personal Information Protection Act is considered a serious violation of those acts and illegal. Courts frequently award damages for this violation, as in the unrelated case of Chitrakar v. Bell TV, 2013 FC 1103 where the Federal Court described a company's unlawful credit check and violation of privacy as reprehensible. A law firm that violates the law should be treated no differently, and this includes a law firm attempting to search out assets of an opposing party.

In admitting to the pulling of the plaintiff's credit report, Ms. McMahon attempted to somehow justify the breach with the excuse that they made a court motion for security for costs, which they in fact lost, in the underlying medical malpractice case. Security for costs motions are a common tactic by law firms to attempt to halt lawsuits. Not only did the court dismiss Ms. McMahon's motion for security for costs because it had no merit, Alberta legislation only allows for pulling of a credit report as part of legal proceedings in the rare circumstance that a court actually makes a specific order for such, which certainly did not happen here.

The admission by Ms. McMahon alluded to a "colleague" being involved in the credit report pull. Whether the colleague referred to is Taryn Burnett, whose removal as defence counsel in the underlying case was at about the same time as the credit report pull, will also be determined in court proceedings and the Law Society complaint earlier made against Ms. Burnett.

While an illegal credit report pull is by itself a serious breach of Alberta legislation, it is particularly serious here as it relates to the allegations of fraud in the lawsuit currently in progress against defendants Ms. McMahon, Ms. Burnett and Gowlings. After a long delay, court proceedings are scheduled to resume in June 2016.

Update: In yet another delay in the lawsuit against the defendant lawyers, court proceedings have been rescheduled from June 2016 to December 2016, prolonging the plaintiff's wait for justice.

Legal Writers Miriam Yosowich and Sherry Noik Misleading Articles Backfire

Update February 1, 2016: After notification to parent company Thomson Reuters, Findlaw's article with falsehoods was removed.

The harassment, defamation and fraud case against defendants Megan McMahon, Taryn Burnett and law firm Gowlings has been ongoing for years due to the defendants' delays. Now, two "news" articles about the case against the lawyers and underlying medical malpractice case falsely report that both cases are over, which they are not, along with other falsehoods intended to mislead, and even to shockingly mock the ordeal of the plaintiff who was injured by Dr. Peter Whidden, requiring her to undergo multiple corrective surgeries.

How the vile articles with reported false statuses of the cases, which were even used as headlines, and unchecked facts are somehow newsworthy and made it to publishing is not immediately clear, but it perhaps makes more sense when one recognizes that at least one of the publishers is in the business of advertising for Gowlings and the defendant lawyers.

The first article in question was written by Sherry Noik who describes herself in social media as a journalist for Yahoo News and an ex-QMI Postmedia writer. The article, filled with false statements on the status of both cases, events of the cases and other falsehoods, was removed after Yahoo Inc. was contacted with notification.

Miriam Yosowich is the author of the second article in question, published by Findlaw Canada, a division of Thomson Reuters. It must be noted that Findlaw Canada maintains a lawyer directory and advertises for Gowlings and the defendant lawyers. Ms. Yosowich describes herself in social media as a legal writer and Toronto lawyer whose private law practice apparently failed after just two years. The article in question states the medical malpractice case is over after all avenues, which is false, and mocks the plaintiff's surgery ordeal. As if that wasn't enough, the article falsifies interim results of the medical malpractice proceedings. Of course, the article mentions nothing about the numerous unrelated lawsuits filed by other plaintiffs against Gowlings and its lawyers. After spewing various falsehoods, the article concludes that people should not represent themselves and segues into promoting its lawyer clients. To date, Ms. Yosowich and Findlaw Canada have failed to reply to the notifications sent their way on this matter, exposing themselves to liability.

The interim matter with the medical malpractice case which the articles "mistakenly" confuse with the entire cases, involves the plaintiff's interim appeal motion in the medical malpractice matter, which requested to add materials, obtain exhibit copies the trial judge Charlene Anderson egregiously refused her without reason, and to remove the sometimes defence counsel Megan McMahon for conflict of interest given it is not proper to represent while being filed against for related matters. The plaintiff's motion for these requests, which can be viewed here, was before now retired Justice Jean Côté, who ordered Ms. McMahon may not represent on the related matters, but erred on other issues which is reflective of his long-standing general discriminatory views on self-represented people (seen here in his authored Safe and Effective Practice booklet at p. 72) and conflicts with modern principles of the Supreme Court of Canada , and self-representation research findings, stating self-represented people must be assured access to justice and every opportunity for fairness.

It is not known at this time if Gowlings engaged its advertiser, Findlaw Canada, to write the falsehoods in its slanted article, and whether this will be added to the allegations against Gowlings.

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.