Allegations Series Part 2: The Defendants Megan McMahon and Taryn Burnett's Abuse of Process, Malice and Bad Faith

This is Part 2 in a series on the allegations of serious wrongdoing committed by the defendant lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings, in the ongoing case against them this blog reports on.

Part 1 of this allegations series examined the defendants McMahon and Burnett's fraudulent misrepresentations and fraud upon the court, which can be read here.

In Part 2, we focus on the defendants McMahon and Burnett's Abuse of Process, Malice and Bad Faith.

McMahon and Burnett were the defence counsel in the underlying medical malpractice lawsuit against Dr. Peter Whidden who injured the plaintiff and caused her to undergo multiple corrective surgeries. Burnett was removed from the case and McMahon was brought on and continued with abusive behaviour toward the plaintiff. Further background can be read in previous posts in this blog.

The enormity of McMahon and Burnett's abuse of process, malice and bad faith could fill a book and it is not possible to summarize this vast and broad wrongdoing in a single post. This post aims to review some of the more serious wrongdoing in this category of allegations. Additional facts and evidence of this wrongdoing are contained in the plaintiff's Brief, Amended Statement of Claims, and affidavit filed June 5, 2018.

The defendants McMahon and Burnett's abuse of process, malice and bad faith takes various forms including maliciously attacking the plaintiff outside their client's interest through applications filled with lies intended to harm the plaintiff, making egregious lies to the court in pursuit of such, making collateral attacks on the court's prior orders which dismissed their malicious applications, and much more.

The defendants McMahon and Burnett's  unsuccessful repeated vexatious applications, contempt of  court  application,  and  security  for  costs  applications brought over the course of the medical malpractice action were rife with false allegations and filled with reprehensible lies intended to mislead the court and harm the plaintiff, and constitute malicious abuse of process. The court dismissed all of these applications brought by the defendants McMahon and Burnett.

The plaintiff suffered emotional, financial and physical harm that was intentionally inflicted by the defendants McMahon and Burnett, and seeks justice in this lawsuit against them for damages.

Some of the defendants McMahon and Burnett's applications filled with lies featuring abuse of process, malice and bad faith, are detailed below.

McMahon and Burnett's vexatious application #1 filled with malicious lies, in the medical malpractice action

• Defendants McMahon and Burnett failed to serve this application with proper notice: maliciously served on holiday of Easter Sunday 2013; served without the required 5 days notice; some purported supporting materials including hundreds of pages of irrelevant case law served the day before the application without proper notice.

• Application dismissed by order of the court pronounced August 14, 2013 / filed August 29, 2013.

• Almost every single statement and allegation in this application is completely false. The main ground for this application is the completely false and outrageous lie purporting that the plaintiff made six applications for a stay of their summary judgment application (which the plaintiff was ultimately successful on). There is no truth whatsoever to the defendants McMahon and Burnett's grounds and other lies contained within the application and they of course failed to show any evidence for them. 

• In addition to the court entirely dismissing the application by order pronounced August 14, 2013 / filed August 29, 2013, it vacated and revoked the interim basis order to a state of never being made in the first place given it was was made under the circumstances of the defendants McMahon and Burnett making egregious lies with ex-parte attendance without the plaintiff being present and having opportunity to respond to their lies. 

• The plaintiff's affidavits, including her affidavits filed August 2 and 12, 2013, exposed the defendant McMahon and Burnett's egregious lies in this application for what they were.

• The defendant McMahon refused to let the plaintiff cross-examine their affidavit for this application, despite that the plaintiff had a right to cross-examine on it pursuant to the rules of court. McMahon refused to allow the cross-examination on the affidavit because it was made for the improper purpose of purporting to support her application filled with lies. 

• At the hearing of the application on August 14, 2013 when the plaintiff finally had opportunity to speak to the malicious application, the court asked the defendant McMahon why she refused to allow the plaintiff her right to cross-examine on the affidavit. McMahon flippantly responded, "I just chose not to", and acknowledged the court questioned her conduct in refusing the cross-examination and failing to give reason [Plaintiff's Affidavit - June 5, 2018, Transcript excerpt of proceedings August 14, 2013 at pp. 34-36, Exhibit "6"].

McMahon and Burnett's vexatious application #2 filled with malicious lies in the present action against them

• Application served without proper service yet again: maliciously served on Thanksgiving weekend 2014; served without the required 5 days notice, and intended to be heard two business days later but pre-empted by court power outage in October 2014.

• Application denied again by the court, this time on December 10, 2014. 

• It is an egregious collateral attack for the defendants McMahon and Burnett to attempt to have this application heard again and on the same basis, despite that the court already dismissed it on August 14, 2013 as noted above. 

• The defendants McMahon and Burnett instructed their defence lawyer Perry Mack to attend before the court ex-parte without the plaintiff having an opportunity to be present and be heard, with intent to deceive the court into believing that it had made an order verbally on December 4, 2014 for this application to be heard, which is an egregious lie as no such order was made: 

• When the defendants' showed the court their drafted form of order which egregiously inserted this malicious application the court never ordered to be heard, the court said "I'll say this, I did not order that" along with other comments asserting that no such application was ordered to be heard [Plaintiff's Affidavit - June 5, 2018, Transcript excerpt of proceedings December 10, 2014 at pp. 34-36, Exhibit "6"].  

• The plaintiff filed affidavits on December 8, 2014 and December 10, 2014 attesting to the malicious tricks of the defendants in trying to deceive both her and the court with their attempt to relitigate this malicious application that was already dismissed by the court. 

McMahon and Burnett's application for contempt of court on basis of costs filled with malicious lies in the medical malpractice action

• Filed April 22, 2013 by the defendant Burnett.

• Application dismissed by the court on May 30, 2013.

• The purported "grounds" regarding payment of costs were not only false, but were in fact prohibited by the rules of court.  Rule of court 10.52(3)(a)(i) states that contempt can not be sought for an “order to pay money.” 

• This application was maliciously filed on April 22, 2013 in a collateral attack on the court's order after the court granted the plaintiff summary judgment application adjournment earlier the same day, and at which was made clear a specific cost was being paid shortly and it was indeed paid promptly. The court had also accepted the plaintiff's reasoning for the circumstances.

• The defendant McMahon admitted that the defendant Burnett brought her application for contempt of court in abuse of process. This admission was made when McMahon stated to the court that Burnett brought the application specifically because the court had granted the plaintiff an adjournment for the summary judgment application earlier that same day [Plaintiff's Affidavit - June 5, 2018, Transcript excerpt of proceedings May 7, 2013 at p. 6, Exhibit "7"].

• In addition to payment of costs being a prohibited ground for making a contempt of court application, case law is clear that contempt can only be sought when there is intent not to comply with an order which is clearly not the case here as confirmed by the judge earlier the same day before Burnett brought the malicious application. 

McMahon and Burnett's three applications for security for costs in the medical malpractice action

• In addition to the malicious vexatious applications and malicious contempt of court application mentioned above, the defendants McMahon and Burnett also vexatiously filed three security for costs applications in 2013, again all being filled with false allegations and blatant lies.

• The court dismissed all three of these security for costs applications (dates indicated below).

• It is an outrageous abuse of process and collateral attack to file the same application three times, each being dismissed by the court.

• These security for costs applications were brought nine years after the medical malpractice litigation commenced in 2004, in abuse of process and in desperation to circumvent their unmeritorious summary judgment application they filed in November 2012, which was also dismissed by the court.

• Details of these three dismissed security for costs applications are below. The dates of some of these applications coincide with dates of the other applications mentioned above because the defendants McMahon and Burnett relished bringing multiple malicious applications at a time to inflict maximum harm.

a) Application filed January 11, 2013 by the defendants seeking enhanced costs on a full indemnity basis and seeking that if not paid by January 31, 2013 the plaintiff’s application be struck; Application dismissed by the court by order January 16, 2013. 

b) Application filed March 28, 2013 by the defendants for security for costs (egregiously served on Easter Sunday and without proper notice)/amended April 2, 2013 to be heard April 4, 2013 (again without proper notice); rescheduled to April 11, 2013 and attended ex-parte by the defendants; application dismissed by the court April 11, 2013. 

c) Application for security for costs filed April 22, 2013 by the defendants and unsuccessfully argued by the defendants; application dismissed May 30, 2013.

More abuse of process by McMahon and Burnett at the June 2018 amendments/striking applications in the present action against them

• The defendants McMahon and Burnett's extraordinary abuse of process with their malicious vexatious applications did not end with their dismissals by the court in August 2013 and December 2014. McMahon and Burnett actually attempted to use their same affidavit prepared for their second failed vexatious application (the one denied by the court in 2014) again for the recent June 2018 applications for amendments/striking. The court properly refused to allow McMahon and Burnett's affidavit to be used for the June 2018 applications. The defendants had failed to comply with court instructions at the prior May 2018 case management meeting that required both parties to state the materials they would be relying on for the June 2018 applications, which would also give opportunity for any affidavit to be cross-examined. The defendants did not state they would be relying on any affidavit because they feared the plaintiff would have cross-examined on it and, further, it was prepared for the purpose of their malicious vexatious application already dismissed twice. 

• The defendants McMahon and Burnett's ongoing abuse of process played out as usual in additional ways for the June 2018 applications for amendments/striking. 

These are just some of the acts of abuse of process, malice, and bad faith by the defendants McMahon and Burnett.

Case law is  clear  that  courts  can  use  their  inherent  jurisdiction  to  deal  with  serious  lawyer  wrongdoing of abuse of process, malice and bad faith.  Very  recent  case  law  further  shows  the  importance,  and  even  necessity,  of  sanctioning  this serious wrongdoing.

In  the  recent  decision  of  Quebec  (Director  of  Criminal  and  Penal  Prosecutions)  v.  Jodoin, 2017  SCC  26,  the  Supreme  Court  of  Canada  affirmed  that  lawyers  must  be  held  accountable  for  malicious  conduct  and  abuse  of  process  and  that  the  Court  has  inherent  jurisdiction  to  deal  with  it.  This  is  applicable  to  the  plaintiff’s  allegations  of  the  defendants McMahon and Burnett's  fraud  in  addition  to  their  other  malicious  conduct  with  their  ongoing  harassing,  unfounded  and  vexatious  applications  against  the  plaintiff,  all  of  which  were  properly  dismissed  by  the  Court.  The  Supreme  Court  stated in Jodoin:

A court therefore has an inherent power to control abuse in this regard and to prevent the use of procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute...As officers of the court, lawyers have a duty to respect the court’s authority. If they fail to act in a manner consistent with their status, the court may be required to deal with them by punishing their misconduct. 

...It was therefore reasonable for the court to conclude that J had acted in bad faith and in a way that amounted to abuse of process, thereby seriously interfering with the administration of justice. 

...This high threshold is met where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that is deliberate.

A  review  of  the  within  plaintiff’s  pleadings  and  evidence  shows  there  is  no  question  that  the  defendant  McMahon  and  the  defendant  Burnett  demonstrated  an  ongoing  pattern  of  unfounded  and  vexatious  proceedings  denoting  serious  abuse  of  the  judicial  system  and  dishonest,  malicious  conduct  that  is  deliberate.

Citing  the Jodoin Supreme  Court  of  Canada  case,  the  Court  of Queen's Bench stated in the recent case 1985  Sawridge  Trust  v  Alberta  (Public  Trustee), 2017  ABQB  530  that  litigation  abuse  by  lawyers  must  be  actioned and  that  it  is  the  Court’s  inherent  jurisdiction  to  impose consequences  for  this  misconduct.  The  Court  went  on  to  review  the  Supreme  Court  of  Canada’s  endorsement  of  the  Statement  of  Principles  on  Self-Represented  Litigants in  Pintea v. Johns, 2017 SCC 23,  and  drew  the  comparison  that  the  “new  reality”  and  “culture  shift”  required  to  treat  self-represented  people  fairly  similarly  applies  to  the  conduct  of  lawyers.  At  para.  50  the  Court  stated:

What  is  new  are  the  implications  that  can  be  drawn  from  a  lawyer’s  actions  and  inactions.  They,  too,  must  be  part  of  the  “culture  shift”.  If  their  actions,  directly  or  by  implication,  indicate  that  a  lawyer  is  not  a  part  of  that  process,  then  that  is  an  indication  of  intent.  The  future  operation  of  this  and  other  trial  courts  will  depend  in  no  small  way  on  the  manner  in  which  lawyers  conduct  themselves.  If  they  elect  to  misuse  court  procedures  then  negative  consequences  may  follow.

In  the  very  recent  follow-up  decision  for  the  same  case,  1985  Sawridge  Trust  v  Alberta  (Public  Trustee), 2018 ABQB  213,  the Court  made  clear  it  is  the  role  of  the  court  to  penalize  abusive  litigation  by  lawyers.  The  Court  stated  at  para.  31:

It  is  critical  that  this  Court  continue  to  disapprove  of  abusive  litigation,  changing  positions,  and  re-arguing  settled  issues  (Staggat  para  32; Chutskoffat  para  92; Sawridge #7 at  para  82-91).  Consequently,  Ms.  Kennedy  and  Mr.  Stoney,  by  virtue  of  their  own  actions,  have  opened  themselves  up  to  enhanced  costs  being  awarded  against  them  in  relation  to  the  proceedings  that  gave  rise  to Sawridge #8.  In  accordance  with  the  reasoning  for  awarding  costs  against  a  lawyer  personally  in Sawridge #7,  there  is  a  sufficient  basis  to  award  solicitor-client  costs  against  Ms.  Kennedy  and  Mr.  Stoney  on  a  joint  and  several  basis  in Sawridge #8.  

Rule of Court 10.52(3)(a)(i) makes clear that a contempt of court application can not be brought on the basis of payment of costs, yet the defendants McMahon and Burnett brought this application, unsuccessfully, against the plaintiff on this prohibited ground and, thus, in abuse of process, malice and bad faith. In addition to a bar on a contempt application for costs, the authorities are clear that contempt can only be sought when there is intention not to comply which is clearly not the case here. The authorities state the standard of proof for establishing civil contempt is “proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice”: Demb v Valhalla, 2016 ABCA 172.

Authorities are also clear that opposing  lawyers  can  not  rely  on absolute  privilege  when  their  conduct  is  based  in  abuse  of  process,  malice,  bad  faith  and  seeks  contempt  of  court. The  presence of malice defeats a defence of privilege.

The  defendants McMahon and Burnett in fact acknowledged in their brief for the plaintiff's amendments application and the defendants' striking application that  the  law  protects  counsel  only  when  they  act  in  good  faith  and  when  their  statements  are  made  in  connection  with  legitimate  process.  The  plaintiff’s  pleadings,  which  must  be  accepted  as  true  on  an  application  for  striking pursuant to binding authority,  and  which  are  supported  by  evidence  [Plaintiff’s  Affidavit – June  5,  2018],  are  clear  that  the  defendants’  conduct  has  been  in  egregious  bad  faith  and  in  abuse  of  process.

Watch for upcoming posts in this Allegations Series, which will include reviews of the defendants Megan McMahon and Taryn Burnett's Defamation and Intrusion upon Seclusion (breach of privacy). The obligations of opposing counsel toward self-represented people pursuant to the Supreme Court-endorsed Statement of Principles on Self-represented Litigants, and McMahon and Burnett's utter failure to comply with them, will also be examined.

Allegations Series Part 1: The Defendants Megan McMahon and Taryn Burnett's Fraudulent Misrepresentations and Fraud upon the Court

Earlier in this blog, a new series was introduced that takes a closer look at some of the categories of allegations of serious wrongdoing committed by the defendant lawyers Megan McMahon, Taryn Burnett, and their law firm Gowlings, that resulted in legal action being taken against them.

This is Part 1 in the series and focuses on the defendant lawyers' Fraudulent Misrepresentations and Perpetration of Fraud upon the Court.

This information is contained within the plaintiff's legal brief which can be read here, and the plaintiff's proposed amended statement of claims against the defendants which can be read here.

It is highly significant that the defendants cross-examined the plaintiff's supporting affidavit evidence filed June 5, 2018 for these allegations, and the defendants were unable to dispute this evidence. The defendants were unable to dispute the plaintiff's affidavit evidence because it is undeniable as to the defendants' egregious fraud and fraud upon the court, in addition to their extensive other serious wrongdoing.

The defendant lawyers' fraud and fraud upon the court is largely related to the fraudulent bill of costs prepared by the defendant lawyers in the underlying medical malpractice lawsuit against Dr. Peter Whidden. That underlying lawsuit is still in progress within the channels of the Canadian court system.

First, it will be helpful to review some background in the underlying medical malpractice lawsuit, which the plaintiff brought after suffering injury by Dr. Peter Whidden, causing the plaintiff to undergo multiple corrective surgeries. McMahon and Burnett were the sometimes lawyers for Dr. Peter Whidden in that lawsuit. The plaintiff was successful in defeating the summary judgment application in that medical malpractice matter. The subsequent trial in that matter was adjudicated by Justice Charlene S. Anderson, who made very serious trial errors including that she:

a) unfairly refused the plaintiff her right to rely on her treating physicians’ evidence supporting her medical malpractice claim, including critical treating physicians’ medical evidence specifically stating the injuries the plaintiff suffered resulted from the surgery by Dr. Peter Whidden which caused the plaintiff to undergo multiple corrective surgeries,  

b) unfairly refused the plaintiff her right to have trial reasonably scheduled to a date when both of her treating physicians could attend, and instead only allowed one to attend with the requirement that he would have testify the same day he returned to the country without opportunity to prepare, and refusing to allow opportunity for her other treating physician to testify at all,  

c) misstated the testimony of Dr. Whidden who was shown to be responsible for the tort of medical battery, among other wrongdoing, and was repeatedly impeached on cross-examination,  

e) misstated the evidence of Dr. Whidden's “expert” B.C. Dr. Denis Morris who admitted under cross-examination that his expert report was erroneous and contained hearsay, and;  

f) unfairly failed to uphold the self-represented plaintiff’s access to justice rights, among many additional serious trial errors by Justice Charlene Anderson. 

To be clear, these trial issues are not the subject of the lawsuit against the defendants McMahon, Burnett and Gowlings and are provided here for the purpose of context.

The fraudulent bill of costs prepared by the defendants McMahon, Burnett and Gowlings, among other issues, egregiously claimed costs for applications for which the plaintiff was the successful party, application costs which were reversed in the plaintiff’s favour, costs for applications which the defendant was not awarded any costs, costs for fabricated applications and application dates that do not exist, and duplicated costs items.

The plaintiff requested, both prior to the trial costs hearing in 2014 and prior to the trial costs appeal in 2015, that the defendants provide her with supporting documentation, receipts, and court orders to substantiate their bill of costs. Despite the plaintiff’s requests for this information on multiple occasions the defendants failed to provide it.

The defendants refused to provide the plaintiff the supporting documentation, receipts and orders she requested because the defendants knew that the bill of costs contained egregious fraudulent misrepresentations and could not be supported.

The defendant McMahon’s failure to provide this information resulted in the Court never dealing with the specific costs items that were fraudulently misrepresented in the bill of costs.

At the July 29, 2014 trial costs hearing, the defendant McMahon made further false representations orally with the intent to deceive the Court and procure a fraudulent costs judgment. When the plaintiff said she wanted to respond to the representations of the defendant McMahon, Justice Charlene Anderson refused to allow the plaintiff to respond to them and told her to “sit down”, as shown in the passage below from the July 29, 2014 transcript at p. 23:

22 THE COURT: Okay, sit down, please, Ms. Carbone.
23
24 MS. CARBONE: I-- no, I have several --
25
26 THE COURT: Sit down.
27
28 MS. CARBONE: --I have -- I would like to respond to what she
29 said.
30
31 Ruling (Costs)
32
33 THE COURT: Sit down.

Justice Charlene Anderson’s style of adjudication with self-represented people, including in unrelated cases, is clearly a concern. However, this is not the subject in the present action against the defendant McMahon concerning her false statements she made knowing them to be false and knowing that the Court would rely on her statements as an officer of the court, causing the costs judgment to be fraudulently procured. Contrary to the suggestion in the defendants’ brief, a lawyer is not off the hook for fraud because she manages to deceive the court.

The costs decision portion of the July 29, 2014 trial costs transcript shows that Justice Anderson made no ruling on the individual costs, having relied on the egregious and fraudulent misrepresentations of the defendant McMahon as an officer of the court who is expected to act with honesty and integrity before the court.

When the plaintiff again requested from the defendants the supporting documentation, receipts and orders for the bill of costs prior to the costs appeal hearing, on two occasions as shown by the evidence, Gowlings lawyer James Peacock responded in email correspondence dated June 3, 2015, stating: "Further to your email message last week and the two messages from you today, we have no intention of providing this information as it is not relevant to any of the issues under appeal." [Plaintiff Affidavit – June 5, 2018, Exhibit “14”]

As a result of the defendants’ refusal to provide the plaintiff with this information for the appeal hearing, the individual costs items fraudulently claimed were again not dealt with. The appeal decision clearly shows the Court did not deal with the specific costs issues, which is owing to the defendants’ sharp practice in refusing to provide the information.

The costs fraudulently claimed by the defendant McMahon in the June 19, 2014 bill of costs [Plaintiff’s Affidavit – June 5, 2018, Exhibit “12”] include:

a) March 4, 2008 - $1500
The Defendant McMahon claimed this cost despite that the master's order for this amount on this date was later set aside by a subsequent order by a justice upon the Plaintiff’s appeal based on the Defendant Burnett having obtained an order ex-parte before the master and admitting she did not have an affidavit of service for that application and failing to serve the application on the Plaintiff with proper notice resulting in the Plaintiff being unable to attend. The justice's appeal order dated May 9, 2008 in the Plaintiff’s favour specifically states this cost was set aside.  

b) April 7, 2008 - $1500

The Defendant McMahon claimed this cost despite that this hearing date before the justice relates to the Plaintiff’s successful appeal before him for the matter referred to in (a) in which the Defendant Burnett obtained an order through her misconduct. This appeal matter was first before the justice on April 7, 2008 at which time he ordered costs will be addressed and upon this appeal matter being finalized before him on May 9, 2008 the justice granted the Plaintiff’s appeal and ordered that the March 4, 2008 order of the master and related costs were set aside.  

c) April 21, 2009 - $1500
This costs item is entirely fabricated. No hearing or application occurred on this date and no such costs were awarded.  

d) December 11, 2013 - $1500
This costs item is entirely fabricated. No hearing or application occurred on this date and no such costs were awarded.  

e) June 3, 2013 - $1500
The Plaintiff was successful on this application in which she was granted leave to file materials on this date. The Defendant McMahon had refused to consent to this remedy in her prior email correspondence, resulting in this unnecessary hearing.  

f) August 29, 2013 - $1500
The Defendant McMahon's application for costs forthwith to set a trial date, the purpose of the application on this date, was denied by the Court. A Court does not award a party costs for routine setting of a trial date.  

g) October 1, 2013 - $1500
This application was for setting a timetable for exchange of expert reports, routine for a trial. The Defendant McMahon's request for costs was not granted.  

h) June 23, 2009 - $2500
Both parties prepared briefs seeking undertakings from the other party. Success was divided and no costs were granted. 

i) November 26, 2009 - $2500
On this date, the Plaintiff was successful in, among other relief, obtaining an order compelling the Whidden Defendant to attend for questioning for discovery on the further amendments, which he had repeatedly refused to attend. Costs items related to this application were specifically set out in this order for court reporter sitting fee and discovery attendance, and no costs for this application I was successful on were awarded to the Defendant as the bill of costs falsely claims.  

j) February 23, 2010 - $1250
There is no such purported application with a costs award.  

k) December 11, 2009 - $800
This costs item is entirely fabricated. No hearing or application occurred on this date and no such costs were awarded.  

l) June 17, 18 2013; August 1, 2013 – Summary judgment application the Plaintiff was successful on. Omitted costs of $3750 are payable to the Plaintiff. The Plaintiff was successful in defeating the Whidden summary judgment application, with reasons issued by this Honourable Court on August 1, 2013. The decision shows the Plaintiff was successful on the main issues and that the parties could speak to costs and yet the Defendant McMahon’s bill of costs falsely claimed there were no costs for this application. The parties had not come to agreement on costs by the time of trial and the Defendant McMahon was not at liberty to make up the false statement that there were no costs for this application.  

m) Court of Appeal matters - $12,100

No such Court of Appeal costs may be sought in a bill of costs for a Court of Queen's Bench trial, yet the Defendant McMahon even specified double costs for this. Further, the Defendant McMahon included in this category a costs item of $2500 for an appeal restoral matter on January 14, 2010 for which the Plaintiff was the successful party and which a fee of $200, not $2500 to the defendant, was assessed for the restoral fee.  

n) The bill of costs duplicates costs items for February 28, 2014, June 23, 2009, and November 26, 2009, again including for applications in which the Plaintiff was successful and for which no costs were awarded to either party.  

o) The Defendant McMahon deceitfully mislead the trial judge to believe that the judges presiding for the applications permitted costs for the applications for which no costs were awarded, which is false as the orders stated whether costs were awarded or not.  

p) The Defendant McMahon was caught on some of her misrepresentations with the bill of costs items during the trial costs proceeding on July 29, 2014, which reduced the costs judgment by $839.80. 

It is also significant that the defendant McMahon was restricted from involvement in the costs issues further to the direction of the Alberta Court of Appeal.

Further details of the defendants' fraudulent conduct can be read in the plaintiff's brief and proposed amended statement of claims, and her affidavit filed June 5, 2018.

Case law supports the plaintiff’s pleadings for the defendants’ defrauding of the plaintiff and fraud upon the Court and makes clear that there are legal consequences for lawyers who commit fraud in the course of litigation and that a lawyer’s position as opposing lawyer does not insulate that lawyer from a claim of fraud and other intentional torts. Binding Supreme Court of Canada law states that fraud and dishonesty vitiate all judgments and that courts have the jurisdiction to vacate an order obtained by fraud, including in another action and, further, that fraud and dishonesty are factors by which related matters may be adjudicated by the court.

Some of this case law relied on is as follows. Additional supporting case law is in the plaintiff's brief.

In Hillier  v.  Hutchens, 2012  ONSC  5988, the  Court  stated  that  a  lawyer’s  position  as  opposing  lawyer  does  not  insulate  that  lawyer  from  a  claim  of  fraud  and  other  intentional  torts,  and  declined  to  strike  the  pleadings.  The  Court ruled:

...absolute privilege usually applies to counsel’s conduct in judicial proceedings…The exception is where malice and bad faith are properly pleaded…Immunity cannot extend to counsel acting in a legal proceeding that was brought to suppress information about a fraud to which that counsel was a party as is alleged in this case. I would, accordingly, not strike these allegations.

In the Ontario Court of Appeal decision Lawrence v. Peel Regional Police Force, 2005 CanLII 3934 (ON CA),  the Court ruled  that  pleadings  of  intentional  and  malicious  conduct  by  lawyers  are  arguable  and  should  not  be  struck:

The  appellant  pleads  intentional  and  malicious  conduct  precisely  directed  at  him  by  the  respondent. In  my  view,  those  facts  are  at  least  arguably  capable  of  implicating  the  respondent  in  several  intentional torts,  including  false  imprisonment,  malicious  prosecution,  abuse  of  process,  and  civil conspiracy. These intentional  torts,  unlike  negligence,  are  not  defeated  by  the  rule  that  a  lawyer  owes  no  duty  to  the  opposing party  in  litigation...Here, the appellant alleges the malicious commission of intentional torts, a claim that does  not  depend upon  the  professional  rules  of  conduct  governing  lawyers.

In another Ontario Court of Appeal decision, Khan  v.  Krylov  &  Company  LLP,  2017  ONCA  625, the  Court allowed  a  self-represented  plaintiff’s  appeal  and  set  aside  the  motion  court’s  dismissal  of  his  action,  which  is  based  in  allegations  of  fraud  and  dishonesty  against  law  firms,  including  the  defendant  law  firm  which  acted  as  opposing  defence  counsel  in  the  plaintiff’s  underlying  motor  vehicle  accident  case.  The  Ontario  Court  of  Appeal  found  that  the  motion  court  erred  in  dismissing  the  case  under  Rule  2.1  as  frivolous,  vexatious  or  otherwise  an  abuse  of  the  process  of  the  court.  The  Court  further  asserted  that  discernible  causes  of  action  must  be  allowed  to  proceed  and  can  not  be  considered  frivolous,  vexatious  or  an  abuse  of  process,  regardless  of  how  unpleasant  a  law  firm  finds  allegations  against  itself. The Court ruled:

In  other  words,  the  pleading  alleges  that  the  law  firms  conspired  to  defraud  the  appellant. As  distasteful  as  this  allegation  might  be,  it  is  not  entirely implausible... Rule  2.1 [similar to a striking application in Alberta] is  not  meant  to  be  an  easily  accessible  alternative  to  a  pleadings  motion,  a  motion  for  summary  judgment,  or  a  trial...We  are  unable  to  conclude  that  the  appellant’s statement  of  claim  asserts  a  claim  that  is  frivolous,  vexatious  or  an  abuse  of  the  court’s  process... rule  2.1  is  not  appropriate  as  a  means  for  bringing  the  action  to  an  early  end.  The motion  judge  erred  in  truncating  the  normal  process.

The present case against the defendants McMahon, Burnett and Gowlings is similar to the Khan case and should be treated the same. The relevant facts and principles that are similar include:

• In  a  separate  action,  the  self-represented  plaintiff  sued  opposing  defence  counsel  in  the  underlying  injury  case.  
• Allegations  against  opposing  defence  counsel  include  fraud  and  dishonesty  by  misappropriating  monies.
• Pleadings are discernible and plausible, and can not be deemed frivolous, vexatious or abuse  of process, regardless of how unpleasant they are for a law firm.  
• Well-settled jurisprudence affirms pleadings must be read generously, including for self-represented plaintiffs with actions against opposing counsel.

As ruled by the Supreme Court of Canada in Danyluk v. Ainsworth Technologies, 2001 SCC 44, collateral attack is not made out where issues have not been distinctly  put in issue and directly determined or where there are different causes of action, as with the within  claims against the defendants McMahon, Burnett and Gowlings. The Supreme Court further affirmed that even if there is collateral attack, which is not present in the within action, the most important factor to consider is potential injustice of not hearing the claims. The Supreme Court stated at paras. 24, 80, and  81: 

When a question is litigated, the judgment of the Court is a final determination as between the parties and their privies. Any right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action. The right, question, or fact, once determined, must, as between them, be taken to be conclusively established so long as the judgment remains.  

As a final and most important factor, the Court should stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice… Whatever the appellant’s various procedural mistakes in this case, the stubborn fact remains that her claim to commissions worth $300,000 has simply never been properly considered and adjudicated. On considering the cumulative effect of the foregoing factors it is my view that the Court in its discretion should refuse to apply issue estoppel in this case.

In  Toronto  (City)  v.  C.U.P.E.,  Local  79,  [2003]  3  SCR  77,  2003  SCC  63  at  para.  52,  the  Supreme  Court  of Canada  stated that factors  that  must  be  considered  before  dismissing  an  action  as  an  abuse  of  process  include  the  prior  action  being  tainted  by  fraud  and  dishonesty,  that  new  evidence  has  been  raised,  and  fairness.  The  plaintiff’s  actions  are  rooted  in  the  defendants McMahon, Burnett and Gowlings'  fraud  and  dishonesty  and  must  not  be  struck.

There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80. 

In the Supreme Court of Canada decision Landreville v. Town of Boucherville, [1978] 2 S.C.R. 801, the Supreme Court affirmed that fraud, dishonesty and bad faith vitiates and nullifies all judgments, contracts and transactions whatsoever. At p. 814:

Fraud, dishonesty, bad faith, extortion and bribery form a special category of causes of nullity, which transends all others. Fraud unravels everything…once it is proved, it vitiates judgments, contracts and all transactions whatsoever…  

Summary of applications for claim amendments and striking heard on June 28, 2018: Carbone v. Megan McMahon, Taryn Burnett and Gowlings

On June 28, 2018, in the lawsuit about extreme lawyer abuse and misconduct by defendant lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings, these two applications were heard before the new case management judge, Justice Michele Hollins:

• The plaintiff's application to amend her statement of claims against the defendant lawyers to add further particulars of the existing claims and add new claims of the defendants' wrongdoing that came to light over time.

• The defendants' application to strike, which they did not file until two years after the plaintiff filed her first statement of claim against the lawyers in March 2013, and one year after the plaintiff filed her original application for amendments in December 2013.

Justice Hollins reserved decision for these applications. This blog will report on the decision when it is available.

This case is about one of the most extreme and egregious cases of abuse and deceit by opposing lawyers toward a self-represented person. This case is not about opposing lawyers’ duty of care to the other side; it is about abuse of process, malice, fraud, deceit, acting in bad faith and other wrongdoing well settled in jurisprudence as rightful causes of action against opposing lawyers when warranted.

The plaintiff's arguments are contained in her brief which can be read here. In summary, the defendant lawyers' extensive wrongdoing which caused the plaintiff to suffer serious damages, includes:

a) The defendants' pattern of serious abuse of process in various forms, including the defendants bringing a number of malicious applications with entirely false allegations against the plaintiff, all of which were properly dismissed by the Court. 

b) The defendants' malicious harassment of the plaintiff for the purpose of personal attack outside their client’s interest. 

c) The defendants' defrauding the Plaintiff and committing fraud upon the Court with a $150,000 bill of costs, which deceitfully claimed costs for, among other things, fabricated hearing dates that do not exist, application costs which were previously reversed to be in the plaintiff’s favour, applications for which the plaintiff was successful, applications for which the defendants were refused costs sought, and duplicated bill of costs items, and refusing to provide supporting documentation for the bill of costs upon the plaintiff’s request. The defendants fraudulently procured a costs judgment upon the Court being misled and deceived by acting on the false representations made by the defendants. 

d) The defendants' unlawfully obtaining the plaintiff’s credit report on April 11, 2013, which came to light in 2015, in violation of her privacy and as a means of assessing the plaintiff’s financial assets, along with various property searches, to carry out their fraudulent scheme. In a related matter, on December 12, 2016, the Privacy Commissioner of Alberta issued decision #003172 denying the defendant Gowlings its request for authorization to disregard the Plaintiff’s access request for her credit and financial information, and ordering Gowlings to respond to that access request. In common law, this privacy breach is referred to as "Intrusion upon Seclusion".

e) The defendants' numerous additional serious and deceitful misrepresentations to the Court. 

f) The defendants' defaming the plaintiff, including with unsuccessful malicious applications filled with absolutely false allegations brought in bad faith seeking to deceitfully label the plaintiff injurious to her reputation; conspiracy with a publisher which advertises for Gowlings, and from which the plaintiff has obtained an out of court settlement, and; in making defamatory statements about the plaintiff to her lawyer on limited retainer. 

g) The defendants' intentional infliction of physical, emotional and economic harm upon the plaintiff.

The defendants' arguments consisted of pleads to overlook the defendant Megan McMahon and Taryn Burnett's serious wrongdoing. The defendants' lawyer Perry Mack argued, in essence, that lawyers are above the law and that it is actually lawyers' jobs to make malicious applications filled with lies (despite that all of the malicious applications were dismissed by the court in the plaintiff's favour and caused the plaintiff serious harm), and that even the defendants' fraudulent conduct should be overlooked. Mr. Mack further argued that, contrary to case law, once a lawyer manages to deceive a court, which expects an officer of the court to act with integrity, the lawyer is somehow invincible, and that the lawyers' conduct was uncomfortable for the plaintiff but that's too bad. It is shocking comments like these that erode the public's confidence in the legal profession and the administration of justice.

Defence counsel Mr. Mack also attempted to mislead the court to believe that the plaintiff's claims against the defendant lawyers McMahon and Burnett were somehow already dealt with in the underlying medical malpractice claim. This is an absolutely false and egregious misrepresentation. There is no question that the plaintiff's claims against the lawyers for the damages they inflicted, including causing her to be on medical leave as a result of their malice, in addition to the financial harm resulting from the lawyers' various frauds, have always been dealt with in the lawsuit against the lawyers, and the plaintiff's evidence and court decisions are also clear on this.

The plaintiff has extensive evidence to rely on in her affidavit filed June 5, 2018 for the applications. The defendants, on the other hand, have no evidence.

Supreme Court of Canada case law, which is binding on all courts in the nation, states that defendants bear an "extremely high onus" on an application to strike a claim and that a claim can not be struck unless it is "plain and obvious or beyond reasonable doubt" that the facts, which must be accepted as true, do not disclose a reasonable cause of action (Hunt v. Carey, [1990] 2 SCR 959; Ernst v. Alberta Energy Regulator, 2017 SCC 1). The Supreme Court has also recently reaffirmed that courts have inherent jurisdiction to take action against lawyers who engage in malicious litigation abuse (Quebec Director of Criminal and Penal Prosecutions v. Jodoin, 2017 SCC 26). Read more about this and other case law that supports the plaintiff's position in the plaintiff's brief here.

Case law is also clear that there is a low threshold for a plaintiff to meet in order to file amended pleadings, including: Balm  v.  3512061  Canada  Ltd,  2003  ABCA  98; Tran  v.  University  of  Western  Ontario,  2015  ONCA  295.

As reported earlier in this blog, a new series will take a closer look at some of the categories of serious wrongdoing committed by the defendant lawyers Megan McMahon and Taryn Burnett that resulted in this legal action being taken against them.

Watch for Part 1 in this series which begins with the subject of the defendant lawyers' Fraudulent Misrepresentations and Perpetration of Fraud Upon the Court.

Brief of the Plaintiff for Claim Amendments and to Oppose Striking

Click here to read the brief of the plaintiff Carbone for her application for approval of her statement of claim amendments to add new pleadings, and to oppose the Defendants' application for striking.

Click here to read the plaintiff's proposed amended statement of claims, containing additional allegations against the Defendants Megan McMahon, Taryn Burnett and their law firm Gowlings.

Amended Statement of Claims in lawsuit against Defendants Megan McMahon and Taryn Burnett

The Statement of Claims against defendant lawyers Megan McMahon, Taryn Burnett, and their law firm Gowlings, have been updated to add proposed additional claims against them.

Click here to read the Amended Statement of Claim against Megan McMahon (action no. 1401-00821).

Click here to read the Amended Statement of Claim against Taryn Burnett (action no. 1301-03943).

(personal information in the claims has been redacted)

The plaintiff's application for these proposed claim amendments (underlined in red) to be allowed is scheduled to be heard before the new case management judge on June 28, 2018.

Upcoming applications hearing; New blog series introduced

Case Update

In the litigation misconduct case against lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings, a brief case management meeting was held on April 23, 2018 to introduce the new (fourth) case management judge to the case, confirm a hearing date for the upcoming applications, and arrange for filing of the parties' application materials.

The plaintiff Carbone's application for amendments to add important allegations to her case against the defendant lawyers McMahon and Burnett, and the lawyers' application for striking, are scheduled to be heard (re-argued) on June 28, 2018 at 10:00am.

As reported throughout this blog, this case is about the rogue lawyers' extreme abuse of process, acting in bad faith, fraud upon the court, and malice inflicted upon the self-represented plaintiff, among other serious litigation misconduct by the lawyers when they were defence counsel in the underlying medical malpractice case. 

The plaintiff brought the underlying medical malpractice case to seek justice after she suffered bodily injury by Dr. Peter Whidden as the evidence shows, including evidence the plaintiff submitted for the summary judgment application the plaintiff was successful in defeating. The plaintiff did not expect the opposing lawyers McMahon and Burnett to engage in bloodsport outside the normal adversarial civil litigation process, which was essentially what they did. No self-represented plaintiff, or any litigant, should have to endure such malicious and underhanded conduct by opposing counsel. 

This case against lawyers McMahon and Burnett is not about opposing lawyers' duty of care to the other side; it is about acts of serious wrongdoing that are well settled in jurisprudence as rightful causes of action against opposing lawyers when warranted. This case is also about one of the most extreme cases of lawyer abuse inflicted upon a self-represented person.

New Series

Leading up to the June 28, 2018 hearing, look for a series of posts on this blog, each focusing on a category of litigation misconduct by the defendant lawyers. Given the extensive allegations and causes of action in this case, this series will not attempt to detail all of them but will highlight some of the most serious issues, being mindful that some things are reserved for trial. 

Case Update: New case management judge assigned; Party applications scheduled for re-hearing

As reported in this earlier blog post, in November 2017 the Court of Appeal granted the plaintiff's appeal to overturn Mr. Justice Nixon's refusal to recuse himself from case managing the lawsuit against defendant lawyers Megan McMahon and Taryn Burnett, and their law firm Gowlings.

A new (fourth) case management judge has now been assigned to the case and the two outstanding applications, the plaintiff's application for amendments and the defendants' application for striking, will be re-argued before her.

These applications are currently scheduled to be re-heard in June 2018, with a case management conference before that in April 2018 to introduce the new case management judge to the case.

Some of the issues and allegations against defendants McMahon, Burnett and Gowlings raised in the plaintiff's application for amendments can be read in this earlier blog post.

The purpose of the plaintiff's application for amendments is to add further allegations of litigation misconduct, and particulars, to her lawsuit against the defendants including for the events, and knowledge learned about them, that happened after the plaintiff filed her statement of claims in March 2013/January 2014. The plaintiff wants the full allegations of litigation misconduct before the court to show the enormity of lawyer abuse committed by the defendant lawyers in the plaintiff's underlying medical malpractice lawsuit which caused her damages.

The defendants of course do not want these allegations of their misconduct damaging to them to be introduced to the lawsuit and wish it would go away entirely, and will attempt to deny the plaintiff her justice through an application to strike the valid claims against them.

Due to ongoing delays in large part by the defendants, the plaintiff's original application for amendments has been outstanding since December 2013 (with proposed amendments filed later for the more recent events). The defendants did not file their application for striking until one year later, and nearly two years after the lawsuit commenced.

The date of the June 2018 hearing will be announced in this blog when it is confirmed closer to the hearing date.

Appeal success mentioned in National Self-Represented Litigants Project Podcast

The self-represented plaintiff Carbone is pleased to be quoted and have her recent successful decision about reasonable apprehension of judicial bias mentioned in the latest podcast ("In Other News" segment) and newsletter article by the National Self-Represented Litigants Project (NSRLP).

The Alberta Court of Appeal decision Carbone v McMahon, 2017 ABCA 384, is about issues of apprehension of bias regarding a case management judge who had a recent solicitor-client relationship with the opposing defence lawyer appearing before him in this lawyer abuse case. The judge refused to recuse himself, but the appeal court found there was insufficient disclosure of that solicitor-client retainer and set aside the judge's decision declining recusal. The appeal court also noted the judge did not hear the plaintiff's application for his recusal for two years. More can be read on this decision here.

The NSRLP is focused on improving the justice system for self-represented litigants (SRLs) through research, dialogue on SRL issues with key players in the justice system, and providing resources for SRLs on the NSRLP website. The NSRLP also successfully intervened in the recent Supreme Court of Canada case, Pintea v Johns, SCC 2017 23, which contributed to the SCC's important endorsement of the Statement of Principles on Self-Represented Litigants promoting access to justice for SRLs.

Carbone appeal successful; New case management judge to be assigned

The Alberta Court of Appeal has granted the plaintiff/appellant Carbone's appeal of the case management judge's refused recusal, and asked the Chief Justice of the Court of Queen's Bench to assign a new case management judge in the Carbone case against defendant lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings.

In this important ruling about apprehension of bias, and impartiality required for public confidence in the justice system, Carbone v McMahon, 2017 ABCA 384, issued November 16, 2017, the Court of Appeal gave two concurring in result decisions. It found various issues with case management judge Justice D.B. Nixon's handling of matters and extent of disclosure of recent retainer he had with defence counsel on this case, Perry Mack.

Mack had been Justice Nixon's own lawyer in an unrelated matter, with their solicitor-client relationship being in the recent past, ending only 10 months before Justice Nixon took disposition of the Carbone case. A significant factor for granting the appeal was Justice Nixon's insufficient disclosure of their retainer that is required for informed recusal proceedings and meaningful appellate review. The appeal court also found concerning the delay with Justice Nixon not hearing the application for his recusal until two years after the plaintiff initiated it (nor was there any other case management progression during that two year interval).

The plaintiff's grounds for appeal including matters of conflict of interest, reasonable apprehension of bias and unduly delay are summarized in this prior post.

Justice Nixon was the third case management judge in this case. The first case management judge Justice Wilson was removed in January 2015, and the second case management judge recused himself on his own motion in February 2015 when he realized one of the defendants was the daughter of his friend.

The amendments and striking applications which were heard in February 2017 with decision that had still been pending, and the rest of the plaintiff's case about litigation misconduct by lawyers Megan McMahon and Taryn Burnett, will now return to the Court of Queen's Bench and proceed before a new case management judge.

This ruling is an important victory for the self-represented plaintiff, and also landmark appellate jurisprudence to be applied on apprehension of bias matters where there is connection between judges and lawyers appearing before them and retainer disclosure requirements.

Defendants Taryn Burnett, Gowlings give contradictory excuses for pulling Plaintiff's credit report

As indicated in this earlier blog post, defendant Taryn Burnett pulled the credit report of the opposing self-represented plaintiff without the plaintiff's knowledge or consent, and for no valid reason, constituting a serious privacy breach.

Since then, Burnett and her law firm Gowlings have given contradictory excuses for the credit report pull throughout two different forum processes with which the plaintiff is pursuing grievances - the Office of the Information and Privacy Commissioner (OIPC) which has thus far ruled on the preliminary matter of Gowlings' refused response, and the Law Society of Alberta. The moving target of Burnett/Gowlings' shifting excuses has delayed and frustrated the plaintiff's pursuit of justice through the forums' processes, and the plaintiff continues to deal with them.

The history of Burnett/Gowlings' privacy breach and the OIPC's order in the preliminary matter for Gowlings to respond to the plaintiff's PIPA request for her credit and financial information, which Gowlings had sought to refuse, can be read here and here. Since that order was made, Gowlings has stalled and stonewalled the plaintiff from obtaining the records and answers and given only minimal information.

Gowlings and Megan McMahon (who replaced Burnett when she was removed from the case) initially purported the credit report was pulled for their security for costs application, which they in fact lost when it was dismissed by the court in 2013. A security for costs application is not even a valid reason to pull an opposing party's credit report.

More recently, in August 2017, Burnett gave a completely different excuse to the Law Society, which she and Gowlings made no mention of to the plaintiff in their ongoing stonewalling. Not only does the plaintiff dispute the new excuse Burnett has conveniently come up with in the wake of the spotlight on this matter, Burnett gave no evidence for it.

If there was any confusion as to what McMahon originally admitted to the Law Society concerning her colleague Burnett's credit pull for the improper purpose of a security for costs application they were both involved in, this excerpt from a letter dated April 18, 2016 from Christine Blair, conduct counsel at the Law Society (repeating McMahon's written statement) should make it clear:

Click to read

In related matters, in the plaintiff's lawsuit against Taryn Burnett, Megan McMahon and Gowlings, both the appeal matter concerning the judge's refused recusal, and the amendments/striking applications have not yet been decided.

Updates will appear in future blog posts.

Post updated to add evidence.

Plaintiff's recusal appeal proceeds at Court of Appeal in September 2017

As indicated in this earlier blog post, the plaintiff Carbone has an appeal in progress with the primary issue being the conflict of interest with the case management judge presiding over this case while his own personal lawyer represents the defendants Megan McMahon, Taryn Burnett and Gowlings.

There was only one year between defence counsel Perry Mack's last representation of his client Justice Nixon and Justice Nixon's commencement as case management judge over the case. Further disclosure made at the February 21, 2017 recusal application hearing narrowed this passage of time to only 10 months between their last solicitor-client communications in April 2014 and Justice Nixon's disposition of the case in February 2015. But the judge declined to recuse himself.

The appeal is scheduled to be heard at the Court of Appeal on September 13, 2017 at 10:00am.

The Court of Appeal will be asked to apply the principle of impartiality to this serious conflict of interest matter in order to ensure the plaintiff's right to fair resolution of her case, as well as to preserve the public's confidence in the administration of justice.

This appeal also deals with matters of procedural fairness involving Justice Nixon's repeated delays of the plaintiff's recusal and amendments applications over two years which prejudiced the plaintiff's access to justice rights. This included giving the plaintiff's hearing date away to the defendant in this case, lawyer Taryn Burnett, so she could use that timeslot for her own unrelated trial, with Justice Nixon presiding over it. In another procedural fairness matter, the plaintiff was denied reasonable opportunity to present all of her submissions.

The Court of Appeal will also be asked to apply the Supreme Court of Canada decision from earlier this year Pintea v. Johns, 2017 SCC 23, which asserts that self-represented people have a right to a standard of fair treatment and access to justice.

Part of the Court of Appeal's obligation to decide fairly is to be transparent and accurately state and consider the key arguments, facts and evidence of both parties (including when one party is self-represented). To better facilitate this transparency, some of the plaintiff's materials filed in support of her appeal can be read at the links below:

• Plaintiff's Appeal Factum - filed May 24, 2017
• Recusal Application Transcript - February 21, 2017
• Plaintiff's Affidavit sworn February 20, 2017 - filed at Court of Queen's Bench February 21, 2017/filed with Extracts of Key Evidence at Court of Appeal May 24, 2017 -(personal information redacted)  

Law firm Gowlings refuses to give Plaintiff her personal information...again

Gowlings was previously ordered by the Privacy Commissioner on December 12, 2016 to respond to the plaintiff's access request for her personal information containing, and relating to, her credit and financial personal information.

The plaintiff sought this personal information when she learned that Gowlings and its lawyers Taryn Burnett and Megan McMahon unlawfully obtained her credit report.

Gowlings eventually gave the plaintiff some of this information on February 10, 2017 but since then has once again refused to give the plaintiff the entirety of the credit and financial personal information she is entitled to have. The plaintiff requires the complete information for the Personal Information Protection Act (PIPA) complaint she is filing against Gowlings.

As reported in this earlier post, Gowlings took another opportunity to stall this privacy breach matter over the last two months.

The plaintiff will deal with this matter through the Office of the Information and Privacy Commissioner processes. Updates will appear on this blog.

Carbone Appeal Factum for recusal

In the lawsuit against defendant lawyers Megan McMahon and Taryn Burnett, and their law firm Gowlings, the plaintiff has filed an appeal solely on the matter of the case management judge declining to recuse himself from this case.

The plaintiff filed her appeal factum with her argument, below, with the Court of Appeal on May 24, 2017. The PDF version can be viewed here.

The main issue on appeal concerns the case management judge Justice D.B. Nixon declining to recuse himself from this case with the conflict of interest with his own personal lawyer, Perry Mack, representing the defendants in this case before him. There was only 10 months between the end of their solicitor-client retainer and Justice Nixon taking disposition of this case. It will be argued that a judge that is predisposed to one side, in this case to his lawyer and the party represented by him, can not be impartial.

The second issue is that the plaintiff was denied procedural fairness by Justice Nixon repeatedly rescheduling her applications for two years, and also denying her reasonable requests to ensure all materials were before him, and other scheduling matters.

This appeal is currently scheduled to be heard before the Court of Appeal in September 2017.

PART 1 – STATEMENT OF FACTS

1.   This is the Factum of the Appellant/Plaintiff. The Appellant appeals from the February 21, 2017 oral decision of the Honourable Mr. Justice D. Blair Nixon declining to recuse himself as case management judge.

2.   The primary issue on appeal concerns the conflict of interest with Justice Nixon presiding over this case with his own personal lawyer, Perry R. Mack, appearing before him as counsel for the Respondents/Defendants.

3.   This appeal also deals with the two year delay imposed by Justice Nixon, which has prejudiced the Appellant’s right to a timely and fair resolution of her matters.

The Actions

4.   This case, with Court of Queen’s Bench action nos. 1401-00821 and 1301-03943 [Appellant’s Appeal Record, Tab 1], concerns the Respondent/Defendant lawyers, Megan McMahon and Taryn Burnett, and their law firm Gowling WLG (formerly Gowling Lafleur Henderson LLP, “Gowlings”), committing various malicious and predatory acts toward the self-represented Appellant in the underlying medical malpractice case, which is still in progress within the channels of the Canadian court system [Appellant’s Extracts, Tab 11].

5.   This case is about one of the most extreme and egregious cases of abuse and deceit by opposing lawyers toward a self-represented person. This case is not about opposing lawyers’ duty of care to the other side; it is about malice, fraud, and other transgressions well settled in jurisprudence as rightful causes of action against opposing lawyers when warranted.

6.   The claims against the Respondents/Defendants Ms. McMahon and Ms. Burnett include:    (a) Abuse of process, (b) Harassment of the Appellant for the purpose of personal attack outside their client’s interest, (c) Defrauding the Appellant and committing fraud upon the Court with a $150,000 bill of costs, which deceitfully claimed costs for, among other things, fabricated hearing dates that do not exist, application costs which were previously reversed to be in the Appellant’s favour, applications for which the Appellant was successful, applications for which the Defendants were refused costs sought, and duplicated bill of costs items, and refusing to provide supporting documentation for the bill of costs upon the Appellant’s request, (d) Unlawfully obtaining the Appellant’s credit report in April 2013, which came to light in 2015, in violation of her privacy and as a means of assessing the Appellant’s financial assets, along with various property searches, to carry out their fraudulent scheme; In a related matter, on December 12, 2016, the Privacy Commissioner of Alberta issued decision #003172 denying the Defendant Gowlings its request for authorization to disregard the Appellant’s access request for her credit and financial information, and ordering Gowlings to respond to that access request, (e) Numerous additional serious and deceitful misrepresentations to the Court, (f) Defaming the Appellant, including with conspiracy with a publisher which advertises for Gowlings, and from which the Appellant has obtained an out of court settlement, and (g) Intentionally inflicting physical, emotional and financial harm upon the Appellant.

7.   The Appellant’s affidavit sworn and filed February 21, 2017 with the Court of Queen’s Bench [Appellant’s Extracts, Tab 5] contains the most recent proposed amendments with allegations for events arising later.

Facts on Recusal application below

8.   This appeal deals solely with the matter of Justice Nixon’s refused recusal, decided orally on February 21, 2017 [Appellant’s Extracts, Tab 2]. Decisions on concurrently heard applications for amendments and striking have not yet been made at the time of the filing of this factum on May 24, 2017.

9.   The primary issue on appeal is whether Justice Nixon failed to recuse himself amid the conflict of interest with his own personal lawyer, Perry R. Mack, appearing before him as counsel for the Respondents/Defendants in this case.

10.  At the first case management meeting before Justice Nixon on May 7, 2015, it was disclosed that counsel for the Respondents, Perry Mack, was Justice Nixon’s lawyer in unrelated legal matters. [Appellant’s Extracts, Tab 1]. It was further learned there was only one clear year between Mr. Mack’s last legal representation of Justice Nixon and his appointment as case management judge on February 18, 2015.

11.  At the case management meetings on May 7, 2015 and February 21, 2017, and the weeks leading up to the latter, Justice Nixon displayed a predisposition toward his lawyer Mr. Mack, gave little to no weight to the Appellant’s submissions and requirements as a self-represented person, and acceded to Mr. Mack’s every request. Justice Nixon’s words and actions showed favouring of Mr. Mack and a closed mind to the Appellant. This includes:

(a)   At the May 7, 2015 case management meeting [Appellant’s Extracts, Tab 1], Justice Nixon favoured Mr. Mack’s misstated account of prior proceedings under other judges and ordered sequence of applications, and failed to consider the Appellant’s submissions, with the result Justice Nixon erroneously ordering the Respondents’ application to be heard before the Appellant’s application for amendments (which had been in waiting a year before the Respondents’ made an application for striking), and suggesting that the Appellant’s application may potentially not be heard at all despite that prior justices had always ordered her amendments application would be heard. Justice Nixon also ordered both the application for recusal and the application for striking to be heard at the same time, suggesting he was predisposed to refuse recusal and go straight to Mr. Mack’s striking application.

(b)   Also at the May 7, 2015 case management meeting, Justice Nixon erred in law in accepting Mr. Mack’s erroneous submission that we are still under the prior order of recused judge Earl C. Wilson, without considering the Appellants’ submission that authorities state a recused judge’s order is void and of no effect [Wewaykum Indian Band v. Canada, [2003] 2 SCR 259, 2003 SCC 45 (CanLII) at para 49; see also Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623].

(c)   Justice Nixon refused to accommodate the obstacle that arose concerning the Appellant’s ability to commission her affidavit out of province, which she could not have known about being self-represented, which had resulted in the Appellant being unable to file her affidavit evidence with brief materials on the filing date February 3, 2017 [Appellant’s Extracts, Tab 3]. Despite that the Appellant promptly notified Justice Nixon of the issue by letter February 3, 2017, attaching lawyer correspondence confirming the out of province restriction, Justice Nixon did not grant her leave to file her materials. As indicated below, she did not even receive a clear answer from Justice Nixon until the day of the case management meeting, February 21, 2017. Justice Nixon stated in his letter dated February 14, 2017 “The Court has no further comment.” It should be noted the Appellant was not seeking legal advice, as Justice Nixon framed it, but was rather seeking his decision on leave for filing pursuant to a judge’s obligations under Rules of Court 1.4 and 13.5 [Appellant’s Extracts, Tab 3].

(d)   Mr. Mack replied with a letter to Justice Nixon, dated February 3, 2017 [Appellant’s Extracts, Tab 4] stating he did not want the Appellant to be allowed her right to file her materials, because she already filed a brief for the [successful] recusal of Justice Earl Wilson [on January 19, 2015]. Clearly this lacks logic as a prior brief for recusal of a different case management judge does not address the issues for recusal of Justice Nixon.

(e)   As there was no determination on her request for leave to file and the hearing date was just days away, it was necessary for the Appellant to reluctantly request a short adjournment. Justice Nixon replied, deferring the decision on a short adjournment to Mr. Mack, who refused a short adjournment [Appellant’s Extracts, Tab 3]. This is also despite that there were several adjournments made at the Respondents’ and Mr. Mack’s requests throughout earlier proceedings, as mentioned in the timeline of delays below.

(f)    On the hearing date of February 21, 2017, the Appellant made an application for a short adjournment so she could file her materials and have them fully considered by Justice Nixon, as is her right under the Rules of Court, and relied on her affidavit sworn February 20, 2017/filed February 21, 2017 [Appellant’s Extracts – Tab 3]. The Appellant also cited authorities, including the CJC Statement of Principles on Self-represented Litigants, now endorsed by the Supreme Court of Canada: Pintea v. Johns, 2017 SCC 23 [Appellant’s Authorities].  However, Justice Nixon refused to grant a short adjournment after Mr. Mack made a brief submission without legal substance that he did not want the Appellant to be able to have the short adjournment.

(g)   On the hearing date of February 21, 2017, by the end of the day at 3:30pm the applications for amendments and striking had still not begun. The Appellant suggested they be dealt with the following day to ensure these important and determinative actions had sufficient time for oral submissions. However, Justice Nixon refused when Mr. Mack said he wanted to proceed with them now. These two most important applications were then crammed into one hour at the end of the day, resulting in the self-represented Appellant not having enough time to make her full oral submissions. The Appellant was forced to race through her oral submissions, and Mr. Mack and Justice Nixon complained she was speaking too quickly.

(h)   At times the obvious comradery, including non-verbal, between Justice Nixon and his lawyer Mr. Mack during the February 21, 2017 proceedings was almost unbearable. Justice Nixon was turned toward Mr. Mack throughout most of the proceeding, with certain nods, glances and expressions between them and gauging Mr. Mack’s approval or lack of at various points of the Appellant’s submissions.

Unreasonable Delays Prejudicing the Appellant

12.  The secondary issue on appeal concerns Justice Nixon’s repeated delays over two years, with the effect of prejudicing the Appellant’s right to a fair and timely resolution of her matters.

13.  These delays involved repeatedly rescheduling the Appellant’s application for his recusal and her application for statement of claim amendments (already in waiting since December 2013). The Appellant attempted to move the matters forward with case management bookings and letters to Justice Nixon to no avail [Appellant’s Extracts, Tab 3].

14.  It is significant that Justice Nixon’s most recent rescheduling involved giving away the Appellant’s long awaited hearing date of December 15, 2016 to the within Respondent/Defendant, lawyer Taryn Burnett, so that she could use that timeslot for her own unrelated trial in which she was defence counsel, with Justice Nixon presiding over it [Appellant’s Extracts,Tab 3]. This also served to enable the Respondents to even further delay the actions against them they wish to avoid.

15.  The ongoing unreasonable delays by both Justice Nixon and the Respondents/Defendants are described in the Appellant’s Court of Queen’s Bench affidavit sworn February 20, 2017/filed February 21, 2017 [Appellant’s Extracts, Tab 3]. The delays can be summarized as:

(a)   The Appellant’s application for amendments in action no. 1301-03943 against Respondent/Defendant Taryn Burnett was filed on December 13, 2013.

(b)   At the Respondents’ request, the Appellant’s application for amendments was adjourned to March 24, 2014. 

(c)   Given the delay with the amendment application, which also sought to add the Respondent Megan McMahon as a defendant, it was necessary for the Appellant to file a separate action, no. 1401-00821, for the allegations against Ms. McMahon.

(d)   On March 24, 2014, the amendments application was adjourned again because the Respondents had judge shopped for Justice Earl Wilson to be the case management judge and only wanted Justice Wilson to hear the amendments application.

(e)   There was no hearing before Justice Wilson until December 4, 2014 due to the Respondents’ insistence on waiting until Justice Wilson was available. 

(f)    Justice Wilson was removed from the within case on January 28, 2015 on grounds of judge shopping by the Respondents, conflict of interest, and bias. The issues with Justice Wilson as case management judge in the underlying case are well-documented in the Appellant’s past materials filed with both Courts. He is also notorious for unfairness toward self-represented people.

(g)   A second case management judge was appointed but he recused himself on February 3, 2015 due to a conflict of interest he identified with a relative of one of the Respondents.

(h)   Justice Nixon was assigned as the third case management judge on February 18, 2015.

(i)     The first case management meeting before Justice Nixon was held on May 7, 2015. At that time, the date for the Appellant’s applications for his recusal and her amendments, and the Respondents’ application for striking (brought long after the Appellant filed her proposed amendments) were ordered to be heard at a date to be determined.

(j)     The Appellant filed a Notice of Appeal on June 29, 2015 with the Appellant’s above mentioned concerns on sequence of applications to be heard, and the recusal and striking applications being heard together. The Appellant was heard before the Court of Appeal on a motion seeking to file the appeal record due to Mr. Mack having served the order late, causing the Appellant to miss a deadline under the new rules.

(k)   On that motion, the Court of Appeal issued decision, Carbone v McMahon, 2015 ABCA 263 [Appellant’s Authorities], giving guidance and further stating at para 9 “the answer here is to get on with deciding the underlying Applications.”  

(l)     On September 21, 2015, the Appellant sent correspondence, including the Court of Appeal decision, to Justice Nixon’s attention, seeking Justice Nixon’s availability for a case management meeting. The case management coordinator advised we were waiting to receive Justice Nixon’s availability.

(m)  On January 29, 2016, Justice Nixon’s available hearing dates were finally provided, and the Appellant booked a case management hearing date of June 8, 2016, as agreed by the parties.

(n)   On May 3, 2016 and June 10 & 14, 2016, the parties were informed Justice Nixon had become unavailable for the scheduled June 8, 2016 date, and new dates were provided. The Appellant submitted another case management booking for December 15, 2016 as per Justice Nixon’s availability.

(o)   Justice Nixon sent correspondence to the parties on November 24, 2016, indicating he had become unavailable again for December 15, 2016, and that the case management meeting must be rescheduled to the next year on February 21, 2017. 

(p)   As mentioned above the Appellant later learned, and confirmed with Mr. Mack, that the December 15, 2016 hearing date was rescheduled because it was given away to Respondent Taryn Burnett, so that she could use that timeslot for her own unrelated trial in which she was counsel, with Justice Nixon presiding over it. 

(q)   The applications finally proceeded on February 21, 2017, nearly two years after the previous case management meeting on May 7, 2015. These are the only two case management meetings before Justice Nixon to date.

PART 2 – GROUNDS OF APPEAL

16.  This appeal raises three grounds of appeal:

Ground #1: The case management judge erred in failing to properly apply the reasonable person test with respect to the issue of recusal in the matter of his presiding over a case in which his own lawyer represents a party.

Ground #2: The case management judge’s words and actions demonstrated he was predisposed to rule in his lawyer Mr. Mack’s, and the Respondents’, favour and had a closed mind to the Appellant, giving rise to reasonable apprehension of bias.

Ground #3: The case management judge denied the Appellant procedural fairness by unduly delaying the actions which resulted in prejudicing her right to a fair and timely resolution of her matters, in addition to denying her fair opportunity to present all of her submissions.

PART 3 — STANDARD OF REVIEW

17.  All three grounds of appeal are based in questions of law and, therefore, have a standard of review of correctness.

18.  The grounds of appeal deal with apprehension of bias and procedural fairness. This Court has stated that both “[a]llegations of apprehension of bias and breaches of procedural fairness are reviewable on the correctness standard”: Trigg v. Lee-Knight, 2009 ABCA 224.

Reasonable apprehension of bias

19.  An error in the application of a legal test or legal principle is an error in law, subject to a correctness standard.

20.  While issues of fact are involved in a recusal application, in this case the error lies in Justice Nixon failing to correctly apply the legal test, specifically the reasonable person test as it applies to reasonable apprehension of bias. The proper application of this test would have led to recusal.

21.  Further, Justice Nixon failed to recognize the legal principle that the most important consideration in determining recusal is the maintenance of the public’s confidence in the administration of justice: Wewaykum Indian Band v. Canada, [2003] 2 SCR 259, 2003 SCC 45, CJC Ethical Principles for Judges.

22.  Surely, the significant conflict of interest of a judge presiding over a case in which his own lawyer represents a party would be called into question by this legal principle. In failing to recognize this principle and setting a dangerous precedent that a judge might be able to preside over a case in which his own lawyer represents a party, the public’s confidence in the administration of justice is put at risk.

23.  Further, both the failure to properly apply a legal test and the failure to recognize an important legal principle are errors raising questions of law that are extricable from the factual issues. A question of law that is extricable from the factual issues is reviewable on the standard of correctness: Housen v. Nikolaisen, 2002 SCC 33 at para 27

24.  In addition, Justice Nixon’s failure to recuse himself in this serious conflict of interest is so clearly wrong that it amounts to an injustice. An error so clearly wrong warrants appellate intervention.

Procedural Fairness

25.  This Court cited the Supreme Court of Canada in asserting that issues of procedural fairness are reviewed on the standard of correctness in Johnston v. Alberta (Director of Vital Statistics), 2008 ABCA 188 (CanLII) at para. 12:

      [I]ssues of procedural fairness or natural justice... are reviewed on the correctness   

      standard using the analysis set out in Baker v. Canada (Minister of Citizenship and       

      Immigration), 1999 CanLII 699 (SCC).

26.  Questions of procedural fairness are subject to the standard of review of correctness: Mission Institution v Khela, 2014 SCC 24 (CanLII) at para 79.  

27.   Failing to accommodate a self-represented person is a matter of procedural fairness: Pintea v. Johns, 2017 SCC 23.

PART 4 - ARGUMENT

28.   The serious conflict of interest of Justice Nixon presiding over this case in which his own personal lawyer, Mr. Mack, represents a party is a serious conflict of interest, giving rise to reasonable apprehension of bias

29.   At the May 7, 2015 case management meeting [Appellant’s Extracts, Tab 1] Justice Nixon acknowledged that he retained Mr. Mack as his lawyer:

10 THE COURT: Right. I’ll acknowledge the comment by
11 Mr. Mack. We have known each other for a number of years in primarily a professional
12 capacity. The Chief Justice and I have discussed the matter. I do not perceive that
13 there’s an issue, from my perspective, in terms of a conflict. And I just want to table that
14 as a comment. The relationship that we’ve primarily had is it -- some time ago, years
15 ago, I retained him in a -- in a professional capacity, my professional capacity, with
16 respect to an organization that I was chairman of or president of, depending on how you
17 characterize it, along with a number of past chairs.

30.   Justice Nixon’s oral decision on recusal [Appellant’s Extracts, Tab 2] attempts to distance himself from Mr. Mack, in stating that he was one of a group of people who retained Mr. Mack. The fact that Justice Nixon may have been an individual in a group that retained Mr. Mack does not change the fact that Mr. Mack is his lawyer. Further, his earlier acknowledgement that he was the chairman or president of the organization shows he was a key individual retaining Mr. Mack’s services.

31.  The test for apprehension of bias and the importance of impartiality in our justice system is set out by the Supreme Court of Canada in Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLIl), [2003] 2 S.C.R. 259:

[57] ... Simply put, public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so.

[60] ... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."

32.   The chapter on Impartiality in the Canadian Judicial Council's document Ethical Principles for Judges states "Judges must be and should appear to be impartial with respect to their decisions and decision making" and "the appearance of impartiality is to be assessed from the perspective of a reasonable, fair-minded and informed person."

33.   The same document refers to a "cooling off period": “with respect to the judge's clients, the traditional approach is to use a 'cooling off period', often established by localtradition at 2, 3 or 5 years ... "

34.  Also in the “Conflicts of Interest” section, the CJC cites a judge’s commentary from the text A Book for Judges indicating a judge should be disqualified where there is a personal or professional relationship with counsel: “A judge’s disqualification would be justified by…a close family, personal or professional relationship with a litigant, counsel or witness.”

35.  A reasonable person would find that Justice Nixon’s relationship as client of the within counsel for the Defendants, Mr. Mack, predisposes Justice Nixon to close his mind and reach a result favouring the party represented by his lawyer Mr. Mack. This issue is further complicated by the fact that Mr. Mack serves as an authority to Justice Nixon for legal advice, and Justice Nixon is therefore inclined to take the legal advice of his lawyer in these proceedings. This solicitor-client relationship is arguably one of the most serious forms of conflict of interest requiring judicial disqualification.

36.  A conflict of interest with a judge and lawyer where there has not been a sufficient “cooling off period” is a strong factor favouring recusal: Al-Ghamdi v Alberta, 2016 ABQB 424 (CanLII). In the present case, there has not been a sufficient cooling off period, which the CJC established as 2, 3 or 5 years, since the relationship in question. There was only one clear year since Mr. Mack’s most recent legal representation of Justice Nixon in 2013 and the date Justice Nixon was assigned case management judge on February 18, 2015. Accordingly, the cooling off period requirement has not been met.  

37.  The two year delay with proceedings does not count toward the cooling off period. Clearly this faulty logic would be self-serving to Justice Nixon and Mr. Mack and must be rejected, especially considering the two year delay was imposed by the court.

38.  A case management judge’s words and actions showing predisposal to one side warrant recusal: Point on the Bow Development Ltd. v. William Kelly & Sons Plumbing Contractors Ltd., 2005 ABQB 368, at para 5 & 6; Nazarewycz v. Dool, 2009 ABCA 70 at para 76 & 77

39.  The CJC Ethical Principles Statement on Diligence states: “Judges should be diligent in the performance of their judicial duties” and “Judges have important responsibilities, for example, in case management and pre-trial conferences as well as on committees of the court. These are all judicial duties and should be undertaken with diligence.”

40.  Justice Nixon was assigned to this case to meet the purpose of case management, being to move a case along to trial in an orderly and timely manner. This Court’s Notice to the Profession and Public, “Civil and Family Case Management”, issued June 27, 2016, states the reasons for case management which include “to promote and ensure the fair and efficient conduct and resolution of the case” and “to keep the parties on schedule.”

41.  However, under Justice Nixon’s case management the case has been plagued with delays and repeated rescheduling, prejudicing the Appellant’s right to a fair and timely resolution of her matters and creating a barrier to her access to justice.

42.  These delays and lack of diligence do not meet the goal articulated by the Supreme Court of Canada in Hryniak v. Maudlin, 2014 SCC 7 of “creating an environment promoting timely and affordable access to the civil justice system.”

43.  Justice Nixon did not afford procedural fairness when he refused the Appellant her opportunity to file her materials and adjournment, delayed proceedings by two years, gave the Appellant’s hearing date to the Respondent, ordered the striking application to be heard before the amendments application and the recusal and striking applications together.

44.  The Canadian Judicial Council's Statement of Principles on Self-Represented Litigants, September 2006, now endorsed by the Supreme Court of Canada, makes these directions among others to promote equal access to justice for self-represented people: “Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case” and “Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.”

PART 5 — RELIEF SOUGHT

45.   In the context of all of the foregoing, it is respectfully submitted that the appeal be allowed and the oral decision declining recusal be set aside, and the Appellant be awarded costs.