Court File and Parties

COURT FILE NO.: 18-CV-594948 DATE: 20181019 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Costs of the s.140 application; Next Case Management Conference

COUNSEL: Gary M. Caplan for the Plaintiffs Nadire Atas not appearing

HEARD: October 19, 2018

BEFORE: D.L. Corbett J.

Endorsement

[1] In my endorsement of October 15, 2018, I directed as follows:

Ms Atas is ordered to attend the case management conference on October 19, 2018. At this conference, she shall be required to explain her repeated defiance of this court’s orders respecting improper communications. (para. 3)

Ms Atas must attend this conference on October 19, 2018. (para. 31)

[2] This court also dealt with the parties’ appearance before the Court of Appeal on October 18, 2018 as follows:

I am aware from the schedule posted on the website for the Court of Appeal that a motion to review the decision of a single judge of that court is scheduled to be heard in this case on October 18, 2018. The only orders of single judges of the Court of Appeal in this case, of which I am aware, are the decisions of Trotter J.A. and Rouleau J.A. on Ms Atas’ motions to stay aspects of my judgment of January 3, 2018.

The case management conference scheduled for October 19, 2018 will proceed before me as scheduled, unless the Court of Appeal expressly orders otherwise. If an order is made by the Court of Appeal that impacts on case management, that should be brought to my attention by the parties at the outset of the case management conference on October 19, 2018. (paras. 28-29)

[3] Ms Atas emailed this court on October 18, 2018, attaching a copy of the handwritten endorsement of the Court of Appeal from that day, and stated in her email as follows:

Please forward the endorsement below from the Court of Appeal dated October 18, 2018 to Justice Corbett.

I respectfully state that Justice Corbett is functus and for this reason, I will not be attending any further case conferences before His Honour.

This is not vexatious position or conduct by me. I agree with the parties Trevor Shultz, Marija Semen and Sutton Group Realty Systems and their reasons for also not attending the case conferences before Justice Corbett. [1]

Justice Corbett's Orders that he has made post s.140 Judgment have had a direct detrimental impact on the appeal of his s.140 Judgment that is concurrently before the Court of Appeal.

[4] The court office emailed Ms Atas this morning to advise her that if she did not attend the case management conference this morning, as she had been ordered to do, the court may issue a bench warrant for her arrest.

[5] Ms Atas did not attend the case management conference as ordered. At 10:45 am, Mr Caplan advised that his office had just emailed him to advise that Ms Atas had just served a document at his office. The court then issued a bench warrant for Ms Atas’ arrest. That warrant was effected in the civil filing room at 393 University Avenue some time before noon. Ms Atas was taken into custody with instructions from, this court that she be brought before me at 1:30 pm, the time at which this court is scheduled to hear final argument in an ongoing criminal prosecution.

[6] Ms Atas will be required to show cause why she should not be held in contempt of court (a) for breach of this court’s order that she attend the case management conference this morning; and (b) for her repeated defiance of this court’s orders respecting improper communications with the court.

Decisions at the Case Management Conference

[7] Ms Atas was ordered to serve and file her defence, and any counterclaims, in the Defamation Proceedings, in July 2018. She was ordered to make a Chavali request in respect to any counterclaims she asserted in the Defamation Proceedings by the end of July 2018. I was advised by Ms Atas, and it was confirmed by Mr Caplan, that a defence and counterclaim had been served in July. It was not filed and no Chavali request was made. On September 14, 2018 Ms Atas was ordered to file the pleadings “forthwith”. By endorsement dated September 28, 2014, reflecting decisions taken on September 14, 2018, the court reminded Ms Atas that she was required to make a Chavali request if she wished to pursue counterclaims. Ms Atas was advised that the court would proceed to make case management orders scheduling the Defamation Proceedings up to trial at the case management conference of October 19, 2018.

[8] Since Ms Atas was not present at the case management conference, she was not here to advise the court whether she had filed her pleadings. Ms Atas had not made any Chavali request (which is made directly to this court, rather than filed with the central filing office). Mr Caplan advised that his office had been served with a pleading on October 18, 2018, and that Ms Atas had advised in her covering email that this pleading had some changes from the pleading that was served in July. Mr Caplan did not know if the pleading had been filed.

[9] The court directed that the court files and a FRANK report on court filings be obtained from the central filing office; they were retrieved aside from the court file in the 2010 Defamation Action (this action, being so old, is now stored off-site in Cooksville, and so is not available on short notice). The files and FRANK report disclosed that no statements of defence had been filed in any of the three actions.

[10] Enough is enough; Ms Atas has had months to complete these tasks. She was advised that the court would proceed today on the basis of the state of the record as of today. This court ordered the defendants noted in default in the three Defamation Proceedings, and gave directions for scheduling default judgment motions before this court. The three proceedings in which the defendants are ordered in default are

(i) CV-16-544153 (ii) CV-18-594948 (iii) CV-10-400035

[11] The court directed that these default proceedings move forward as follows:

(a) A copy of this endorsement will be provided to Ms Atas today; (b) If no order has been made setting aside the noting in default by November 2, 2018, then plaintiffs may deliver their motion materials at any time thereafter on 48 hours notice, 9 am any day I am available. Plaintiffs shall serve these materials on Ms Atas, and give her notice of the return of the motion, but she will not be permitted to file responding materials so long as she is noted in default. (c) During the course of this case management conference, Mr Caplan received an email from his office that, at 10:44 am, Ms Atas had served some sort of pleading at his office. The noting in default is effective as of 9:30 am today, and no documents shall be accepted for filing from Ms Atas in the Defamation Proceedings so long as the noting in default remains in place.

[12] Ms Atas may bring a motion to set aside the noting in default, returnable before me on November 2, 2018 at 9 am. If she decides to do this, she shall serve her motion materials for this motion by no later than 3 pm, October 31, 2018. And if she decides to do this, she shall so advise my office by 3 pm on October 31, 2018, so that a courtroom and staff may be arranged for the appearance. If Ms Atas does not bring this motion within this time period, she should understand that this may prejudice any subsequent motion she brings to set aside the noting in default or any default judgment that may hereafter be granted.

Fourth Defamation Action

[13] Mr Caplan advised that he has just been retained by clients in the UK who have instructed him to commence proceedings against Ms Atas for internet defamation. If Mr Caplan does commence such proceedings, he shall provide this court of particulars once the claim has been issued, and this court will order that action brought into common case management with all other proceedings involving Ms Atas. No other direction is required concerning these potential proceedings at this time: if and when a statement of claim is issued and served on Ms Atas, she shall have the usual period provided in the Rules to provide a Statement of Defence.

Costs of the s.140 Application

[14] The applicants in the s.140 application argued that the circumstances of the underlying litigation were such as to justify separate counsel for separate applicants on the s.140 application, within the principle stated by Spies J. in Lindhort v. Centennial College, 2016 ONSC 4079. I agree with Spies J. that parties in the same interest may well not receive costs indemnity for separate counsel if they could have been represented effectively by one set of counsel. This is not because the decision to have separate counsel is not reasonable – rather, that it is not reasonable to expect an opposing party to pay for multiple counsel to represent the same position(s).

[15] As I indicated in my endorsement of October 15, 2018, I was also concerned, on the totality principle, that the total claimed by the applicants was more than Ms Atas should reasonably have expected to pay if she lost the application. The applicants submitted that, if the court so concluded, a reasonable figure for a global costs award is $240,000. I accept this number as a fit global amount for costs on a full indemnity basis. As I stated in my handwritten endorsement at the case management conference, $240,000 “reflects the greater professional effort required of the applicants than the respondent, the respondent’s own claimed costs of $189,716, and this court’s own sense of the substantial effort required to bring the application.” As this court also noted in its handwritten endorsement, the global award of $240,000 “is a substantial discount from the total full indemnity costs of $372,599.77, and I am satisfied that the reduction fairly reflects a discount to eliminate the costs of multiple counsel for which Ms Atas should not be expect to pay.”

[16] The applicants have agreed on how they will share a global costs award among themselves. I accept that agreement. Accordingly, order to go that the respondents, Ms Atas and her company, pay costs of the s.140 application to the applicants fixed at $240,000 inclusive, payable to the applicants in the following proportions:

(a) LawPro respondents 28% (b) Peoples Trust 59% (c) Chahals 13%

Order accordingly.

[17] Two final points should be made. First, Ms Atas persuaded the court to qualify the interim injunction terms to permit her some continued use of the internet, included email and some ability to post items for sale. Ms Atas filed no evidence to support these requests, but the court acceded to them on the basis of the practicalities of the moment, leaving until the return of the motion for an interlocutory injunction any refinement or variation of the injunction terms. Now that it appears that the matters are proceeding on default, Ms Atas should understand that the requested order is set out in the plaintiffs’ claims, and is not limited to the terms granted by the court in the interim order.

[18] Second, Ms Atas has written about having been coerced to do certain things, under threat of incarceration by this court. That is correct. Ms Atas has been told that she must comply with court orders or face incarceration. I wish to emphasize some of what I have told her previously on this topic.

[19] It gives the court no joy to imprison a litigant for procedural defalcation, such as failing to attend court when required or sending inappropriate mail. The consequence seems disproportionate to the offence, and most judges like to think that if they explain the system and principles involved, almost any litigant can be brought to understand her legal duty to do as she has been ordered by a judge. However, when non-compliance reaches a state where it is evident that the litigant is being defiant, the defiance is the basis of the court’s response, not the immediate conduct that reflects the defiance. Ms Atas has become increasingly (and persistently) defiant of this court’s orders, and it is that conduct that she will have to address in her show-cause hearing as to why she should not be cited for contempt.

D.L. Corbett J. Date: October 19, 2018

Footnote

[1] The court received an email from counsel for the Sutton Group parties almost immediately after receiving a copy of Ms Atas’ email, as follows: “ Further to Ms. Atas' email dated October 18, 2018 referencing my clients' "reasons" for not attending case conferences, please be advised that my instructions are to monitor the progress of the s140 application and subsequent proceedings. My clients have not instructed me to attend case conferences as they do not wish to incur unnecessary costs. It is my clients' intention to comply with orders of Justice Corbett and to participate in the proceedings if required to do so by Justice Corbett.” These parties have not breached any order directed at them, as described by their counsel.