Court File and Parties
Court File No.: various Date: 2018-11-23 Superior Court of Justice - Ontario
Re: Caplan et al. v. Nadire Atas
Counsel: Nadire Atas – self-represented Gary Caplan, for the Plaintiffs Christina Wallis, for Peoples Trust
Heard: November 7 and 16, 2018 Before: D.L. Corbett J.
Endorsement
[1] This endorsement addresses matters before me involving Ms Atas on November 7 and November 16, 2018. I start with the scheduling orders made on November 16, 2018 and then address the contempt issues from November 7th.
Motion to Set Aside Notings in Default
[2] Ms Atas has taken no further steps to bring her intended motion to set aside the notings in default in the Defamation Proceedings. I have warned her, at least twice, that delay in taking this step could prejudice her in obtaining such an order. Still she has not delivered her evidence in support of the motion.
[3] Ms Atas explained that she thought that her opponents had said, on November 7, 2018, that they would consent to the setting aside of the notings in default. That is not what they said. Mr Caplan said that the plaintiffs might agree. And this could not have been misunderstood by Ms Atas: I expressly directed the parties to discuss the matter among themselves to see if they could resolve the issue, including any terms on which the notings in default would be set aside. I specifically discussed potential terms. It was clear that the matter had not yet resolved and Ms Atas could not reasonably have understood that the matter had been resolved on consent.
[4] Ms Atas also said that she thought she would bring her motion to set aside the defaults at the same time as the motion for the interlocutory injunction is heard. This argument was, of course, inconsistent with her statement that she believed the matter was resolved on consent. Later she said that she did not expect the injunction motion to proceed for several months. This implies that Ms Atas thought that her motion to set aside the notings in default need not proceed for several months.
[5] Ms Atas must proceed promptly in respect to the notings in default. I have made this point to her consistently since I noted her in default in the Defamation Proceedings.
[6] I directed Ms Atas to the test for setting aside a noting in default. I told her that she should not only address her arguments as to why, she says, the court ought not to have noted her in default, but also why she failed to comply with this court’s order to file the pleadings in July 2018, and its further order to file the pleadings “forthwith” on September 14, 2018, and that she should also address the terms to which she will agree as a condition of setting aside the notings in default.
[7] Finally, the court advised Ms Atas that she was at liberty to raise her “recusal” issues on the motion to set aside the notings in default. I was clear with Ms Atas that this observation was permissive, not mandatory: she does not have to raise this issue on this motion, and can instead raise it on the motion for an interlocutory injunction. [^1]
[8] Ms Atas suggested a deadline of November 20, 2018 for her materials on the motion to set aside the noting in default. I accepted that deadline. [^2] Opposing parties may provide responding materials by November 30, 2018. The court will hear that motion on December 7, 2018, as part of the case management conference to be held that day.
Interlocutory Injunctions
[9] The plaintiffs have delivered a “restated” five volume motion record in support of their injunction motions. These were served on November 22, 2018. Most of the materials in that record were served previously, but there have been some changes to the materials and there is some additional evidence that was not provided before.
[10] When the court got word that these “restated” materials would be delivered, it vacated the deadline for Ms Atas’ materials, which had been November 16, 2018. After discussion with counsel and Ms Atas, Ms Atas’ new deadline to file responding materials on the interlocutory injunction motions is December 21, 2018.
The “Babcock” Defamation Action and Proposed Summary Judgment Motions
[11] Mr Caplan advised that his firm had commenced a new defamation action against Ms Atas, brought by a new set of plaintiffs, alleging internet defamation (the “Babcock Action”). Ms Atas was served with this statement of claim on November 12, 2018.
[12] The next case conference is December 7, 2018. If Ms Atas needs an extension of the deadline to file a statement of defence in the Babcock Action, she can ask for it at that conference; she is not to be noted in default before this issue is addressed at that case conference.
[13] Mr Caplan advised that he wishes to move for summary judgment in all four defamation actions. He is given leave to serve his notices of motion to that effect, with a return date to be fixed by this court in due course.
[14] After Mr Caplan serves motion records for the motions for summary judgment, this court will schedule the steps that will follow to return those motions to court. If the materials have been served by December 7, 2018, those scheduling issues may be addressed at the next case management conference.
Status of Proceedings Before Other Courts
[15] This court is mindful not to schedule deadlines or appearances in a way that would frustrate matters before other courts. The contempt proceedings are scheduled to return before Pollak J. on December 12, 2018. Counsel advised that that day had been scheduled for commencement of the contempt proceedings to hear constitutional issues related to whether the case is a matter of civil or criminal contempt. However, counsel advised that amicus counsel had not filed materials and is to be replaced, and that the appearance on December 12th will now be to reschedule steps in light of a change in amicus. Thus I understand that there should not be extensive work or preparation required of the parties in advance of the appearance before Pollak J. on December 12th, and so none of the scheduling orders made by this court should impact on that appearance.
[16] Ms Atas failed to perfect her appeal in the Court of Appeal in accordance with the order of Feldman J.A., and she advises that she will move for a further extension to perfect her appeal. She advised that she had not obtained a date for this motion from the Court of Appeal, but that motion dates in that court do not have to be reserved in advance as they do in the Superior Court. She advised that she had not yet served her motion materials and she was unclear on when she will do this.
[17] Ms Atas indicated that she was currently delayed in bringing this motion for an extension, because she had not received materials she needs from this court. She wishes to seek a stay of this court’s finding of contempt from November 7th as part of her motion for an extension to perfect her appeal from the judgment of January 3, 2018. She explained that she wished to do this because the Court of Appeal does not like to hear matters “piecemeal”.
[18] I advised Ms Atas that the contempt finding made by this court has nothing to do with her appeal of the s.140 judgment. She has failed to meet several deadlines from the Court of Appeal and has been warned by that court more than once that she should not expect further extensions. She explained that her failure to file in accordance with the order of Feldman J.A. was a “technicality”. I emphasized to Ms Atas that she should be treating her continuing non-compliance as an urgent situation and should be addressing the matter immediately with the Court of Appeal – and that she should not wait to complete a record respecting the contempt proceedings before me. To be clear – the appeal from the s.140 decision is in respect to a judgment made January 3, 2018. The finding of contempt was made on November 7, 2018, and was based on Ms Atas’ failure to comply with orders made in October 2018 that she appear before this court on October 19, 2018. The one has nothing to do with the other.
[19] Ms Atas responded that she did not agree but that she would accept the Court of Appeal’s decision on those matters. This is part of a continuing pattern – of Ms Atas trying to play this court off against the Court of Appeal, the Human Rights Tribunal, and Justice Pollak. She is misunderstanding the point here. Of course these are matters for the Court of Appeal to decide. However, when she gets to the Court of Appeal and is asked to explain why she has taken weeks to seek yet another extension, she will have been told by this court, in the interim, that she should be moving with dispatch in the Court of Appeal, and should not be waiting until she is ready to bring some sort of motion respecting the contempt finding that has been made against her on November 7th.
Evidence Filed on the Contempt Proceedings
[20] Ms Atas has asked for a copy of the affidavit she filed at the contempt proceedings on November 7, 2018. She told me that she had not retained a copy of it. Nor did she ask for a copy of it at the time of the appearance.
[21] Of course anyone may obtain copies of documents filed with the court – subject to only a few restrictions, none of which apply here. But there is a caveat. I reserved my reasons at the contempt hearing, and I will prepare them, when time allows, along with several other outstanding decisions in the proceedings under case management. The affidavit – along with eight boxes of materials filed since judgment last January – are in my home office – while the matters are under reserve. Ms Atas suggested I locate the document, scan it, and send it to her. This I will not do: the court does not act as secretary for the litigants. Ms Atas knows that she should retain copies of materials she files with the court. She will have to wait until the court has completed its decision and returned the file to the courthouse to obtain copies of her documents.
[22] Ms Atas indicated that she needed a copy of the affidavit in order to move for a stay of the contempt finding in the Court of Appeal. That motion is not brought properly until the matter is completed before me – currently scheduled for December 17, 2018. Ms Atas noted that she wished to seek a stay before this court imposes a custodial sentence. That is not the proper way in which to proceed, as I have already advised her.
The Contempt Citations
[23] Ms Atas was directed to appear before me on October 19, 2018 to show cause why I should not cite her for contempt for her repeated failure to follow this court’s orders not to communicate directly with the court. This conduct has continued unabated since the court ordered that it stop, back on January 3, 2018. Ms Atas has been warned repeatedly to stop, and yet she has not. When ordered to appear to show cause why she should not be cited for this continuing defiance of the court’s orders, she emailed the court stating that she considers this court functus and biased, that she would no longer attend case management conferences, and that she would not attend on October 19, 2018. This court then again ordered her to appear on October 19th. On the evening of October 18th she communicated again with the court stating her intention not to appear. On the morning of October 19th the court sent a further endorsement to Ms Atas to advise her that a bench warrant would be issued for her arrest if she failed to attend on October 19th, as ordered.
[24] Ms Atas did not attend as ordered. A bench warrant was issued and she was arrested and brought before me on the afternoon of October 19th. She was released that day on her promise to appear before me to show cause (a) why she should not be found in contempt for the continuing improper communications with the court and (b) for failing to obey this court’s order to appear on October 19th. The date was set for November 7th. Ms Atas advised that she would file materials in advance – she was told that she could do so but did not have to do so – she could bring materials with her or testify in court on November 7th.
[25] Ms Atas did appear on November 7th, in accordance with her promise on October 19th. She did not file materials in advance of the appearance, but she did tender an affidavit to the court.
[26] In her affidavit, in the first paragraph, Ms Atas acknowledged breaching the court’s order respecting communications with the court. She apologized and promised not to do it again. I found her in contempt of court for these communications, but in light of her acknowledgment, apology and promise, I suspended sentence. I explained to her that if the conduct was repeated, she could be sentenced for the past conduct.
[27] In her affidavit Ms Atas explained that she did not attend on October 19th because she did not believe that she had to do so. She was unable to offer any interpretation of the words used by this court that would justify this professed belief. This court stated that “Ms Atas is ordered to attend” on October 19th. There is no ambiguity or room for misunderstanding in these words.
[28] Ms Atas explained in her affidavit that she considers this court functus. Her view of that issue is no excuse for disobeying this court’s order.
[29] Ms Atas explained in her affidavit that she did not feel bound to attend because other parties have failed to attend at previous case management conferences. She referenced Sutton Group and its agents as persons who had been requested to attend previously. Ms Atas is correct in noting that this court had directed that if Sutton Group did not attend, matters could be disposed of in its absence.
[30] Ms Atas’ argument on this point is wrong for three reasons. First, I never ordered Sutton Group or its agents to attend before me. I advised them that if they did not appear, matters of interest to them could proceed and be decided without their participation. Second, Ms Atas was ordered to appear on October 19th to answer for her breaches of this court’s orders against improper communications with the court. Sutton Group has never been required to show cause why it should not be held in contempt. Third, if Ms Atas’ view of events involving Sutton Group was correct – which it is not – it would amount to an argument that because other people have breached this court’s orders, she may do so with impunity as well.
[31] This court concluded that Ms Atas’ failure to attend was defiant of the court’s authority and not some sort of misunderstanding. She offered no explanation for her non-attendance other than arguing that she somehow felt that she was not obliged to do so. I cited her in contempt and put the matter of sentencing over to December 17, 2018. I advised her that I would consider any submissions she had to make about sentencing, but that the ordinary sentence for contempt was either a fine, with imprisonment in lieu of payment, or a sentence of imprisonment. I also advised her that a custodial sentence, in this case, would likely be measured in days or weeks, not months or years – but that I would hear her on the appropriate sentence on December 17th.
[32] Ms Atas asked if I would stay the sentence after imposing it so that she could pursue an appeal of my decision. I told her that, as a matter of general practice, the Superior Court does not stay its own sentences pending appeals of them – if she wished to seek a stay she would have to do so after the sentence had been imposed, and her recourse would be in the Court of Appeal.
[33] The contempt finding is civil contempt in the face of the court and the provisions of s.140 of the Courts of Justice Act and this court’s judgment of January 3, 2018 would seem to apply to it. Ms Atas may address this issue when the matters returns on December 17, 2018.
Transcripts
[34] Ms Atas has requested a transcript of proceedings before me on November 7, 2018. Those proceedings were the “show cause” hearing for contempt. Reasons for my decision that day are forthcoming.
[35] In my endorsement of June 27, 2018, I directed as follows:
Ms Atas has indicated that she wishes to obtain a transcript of today’s proceedings. Ms Atas has a series of unpaid costs orders. She considers the transcripts necessary for purposes of her appeals (even though these are transcripts of argument and submissions, not of evidence). She does not consider it necessary to pay costs to opposing parties when she is ordered to do so. This is unfair – that Ms Atas should engage in discretionary purchases of marginal utility rather than paying her legal obligations. It would be open to the court to preclude Ms Atas from taking further steps while any costs orders remained unpaid. I have not been minded to take this step – to this point – denying Ms Atas all participation because she does not pay costs strikes me as too draconian, even at this stage in matters. However, denying her the ability to order transcripts that are not necessary for her participation in the process seems an appropriate lesser response to the studied failure to pay costs. I would not foreclose Ms Atas’ ability to obtain transcripts until all unpaid costs have been paid, but some material payment on account of costs is in order. Therefore, before I will authorize production of any transcripts of anything other than evidence for Ms Atas for proceedings over which I preside, Ms Atas must pay $1500 towards her outstanding costs obligations owed to Peoples Trust, by payment of this amount to Ms Wallis’ law firm in trust. (After I read out the prior paragraph Ms Atas was insistent that I note that she did not want the current transcript for appeal purposes. It does not matter what purpose may be served by the transcript of argument and submissions: Ms Atas is entitled to a transcript, as is anyone who participated in this conference, but she will not receive permission to obtain this transcript until she has made the costs payment set out above.). [^3]
[36] Upon confirmation that Ms Atas has made the $1500 costs payment, I will authorize preparation of the transcript from November 7, 2018, at Ms Atas’ expense.
[37] Ms Atas argued that she needs the transcript in order to appeal my finding of contempt. The finding is for civil contempt in the face of the court. The process is not yet complete; Ms Atas returns before me for sentencing on December 17, 2018. Ms Atas may not appeal the contempt finding until the process is completed – a principle that applies in criminal proceedings and in quasi-criminal proceedings for civil contempt. And then the appeal will turn on the evidence and this court’s reasons for decision – no evidence was taken orally on November 7, 2018 and thus a transcript will not be necessary for any appeal that Ms Atas may be permitted to bring.
[38] Ms Atas, of course, may believe that she needs a transcript from November 7th for her appeal, and she is entitled to have one prepared, at her expense, but only if she complies with the endorsement from June 27, 2018.
Seeking A Stay in the Court of Appeal
[39] Ms Atas has expressed concerns that she should not have to seek a stay from the Court of Appeal after she has been incarcerated – she is self-represented, any custodial sentence is likely to be short (“days or weeks”), and her efforts to stay the effect of the sentence pending an appeal could be frustrated entirely if she cannot get the stay prospectively.
[40] There is something to this argument. However, that is not a basis for this court to grant a stay pending an appeal. To accommodate Ms Atas’ circumstances and allow her a meaningful opportunity to seek a stay from the Court of Appeal, I will defer the commencement of any custodial sentence I may impose on December 17, 2018 for 48 hours, to give Ms Atas a chance to get her motion for a stay of the sentence before the Court of Appeal. I appreciate that this extension may seem short to someone in Ms Atas’ position, however she should understand that it is a significant indulgence, and motions to stay sentences pending appeal are usually brought with the accused in offender in custody, and are therefore brought on very promptly.
[41] I will also ensure that Ms Atas has a copy of the affidavit she filed on the contempt proceedings. This will be provided to her on December 17, 2018 at the latest, so that she has it in hand to use on any stay motion she may bring after December 17th.
Reasons on the Contempt Finding
[42] This endorsement sets out, in summary form, the bases of the contempt findings. It does not set out this court’s full reasons for those findings. This court will attempt to complete its written reasons for the findings of contempt by December 17th, but cannot promise that they will be available at that time, given the court’s other commitments for the balance of 2018.
D.L. Corbett J. Date: November 23, 2018
Footnotes
[^1]: In the materials Ms Atas delivered to Judges Administration on November 20, 2018, it appears that she has raised some, but not all of the bases on which she relies to argue that this court should recuse itself. Ms Atas must raise all of the grounds she relies upon at the same time so that the court may fully adjudicate the question of recusal: if Ms Atas raises some but not all of the grounds on which she relies on this point, she will not be permitted to raise other grounds at some later stage. Any issues respecting this point may be addressed at the outset of argument on the motion to set aside the notings in default on December 7, 2018. [^2]: Ms Atas subsequently did deliver motion materials for this motion to Judges’ Administration. In so doing she has not been required to pay the filing fee for bringing a motion in a civil proceeding. She shall pay this fee and provide the court with proof of payment of the fee on December 7, 2018. [^3]: Peoples Trust v. Atas, 2018 ONSC 4059, para. 23.