Court File and Parties

COURT FILE NO.: CV-18-574948 DATE: 20190611 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Caplan v. Atas and numerous other proceedings involving Nadire Atas

COUNSEL: Gary Caplan – numerous parties A. Pantel – LawPro Defendants Christina Wallis – Peoples Trust Nadire Atas self-represented James Bush – self-represented Dmitri Yiokaris – David Sloan and Baker Schneider Ruggiero David Conway – Sutton Group, Trevor Schulz and Mary Ann Seonen

HEARD: May 31, 2019 BEFORE: D.L. Corbett J.

CASE MANAGEMENT ENDORSEMENT

[1] This endorsement sets out orders made and directions given at a case management conference on May 31, 2019. The case management conference took the entire day (10 am to 5:15 pm). I asked the parties at the end of the conference if there were any other matters to be addressed, and none were raised. However this was a long conference, it was evident that everyone was tired, and if the parties consider that there were any items that should have been addressed that were not addressed, they may provide me with a list of such items by August 31, 2019, for inclusion on the agenda for the next regular case management conference in September 2019.

Open Court Principle

[2] At the start of the case management conference I was advised that a member of the public was in the courtroom. None of the parties expressed any concern about the conference taking place in public, but counsel noted that, as a matter of practice, the court often considers that appointments “in Chambers”, including family law conferences, civil and criminal pre-trial conferences, and procedural teleconferences, are generally not conducted in public.

[3] Some early case conferences in these proceedings were conducted in conference rooms rather than courtrooms. However, our practice since judgment was rendered in the s.140 application has been to conduct conferences in a courtroom, generally with a court reporter present. The proceedings have focused primarily on procedural issues. There have been no settlement discussions except, very occasionally, in respect to discrete procedural issues.

[4] These are highly adversarial proceedings. There is no sense that the privacy afforded parties in Chambers appointments would promote reduction in conflict or a less antagonistic approach to the litigation. Further, there has been a long history of Ms Atas alleging bias and impropriety by the court. I have commented on this several times: Ms Atas seems to view the court itself as an antagonist. Particularly since the judgment in the s.140 application, in January 2018, there has been a history of disobeying court orders, challenging the propriety and jurisdiction of the court, and failure by Ms Atas to take litigation steps that have been directed by the court.

[5] In my view, given all of these circumstances, the “open court” principle requires that case management conferences in this litigation be conducted in court, open to members of the public. I see no interest served by excluding the public from these conferences, and the accountability that flows from the public nature of the process is a valuable benefit from finding these processes open to public scrutiny. It is ordered that all case management conferences conducted by the case management judge in court be considered open court proceedings, unless the court subsequently expressly orders otherwise. The parties should understand from this order that if they wish proceedings closed at any point, they will have to request such an order from the case management judge.

[6] Finally, I note that this does not preclude the court from conducting a case management conference in a boardroom or by teleconference, in which event that conference will not be conducted in public. As indicated in prior endorsements, given the allegations frequently made by Ms Atas about the court’s conduct, the court is not inclined to conduct proceedings in these matters outside the courtroom. However, the court is not precluded from so doing, in appropriate circumstances, and the parties should understand that the court is not limiting its own discretion to decide how best to proceed as these matters move forward. It will not be necessary, however, for counsel to seek the court’s directions about the presence of members of the public during any conferences conducted in a courtroom.

Correspondence from Ms Atas to the Court of Appeal

[7] At the start of the case management conference, Mr Caplan drew my attention to correspondence from Ms Atas to the Court of Appeal following release of that court’s decision dismissing Ms Atas’ appeal from the s.140 judgment (2019 ONCA 359). In the correspondence, Ms Atas seems to allege that this court somehow interfered in her appeal. Ms Atas’ correspondence is not addressed to this court and is not part of the record of proceedings in this court. In my view it would not be appropriate for me to comment upon Ms Atas’ correspondence to the Court of Appeal.

Orders for Trial Together

[8] Prior to the case conference I signed various orders that had been granted at previous case management conferences. One such order had directed that the first three Defamation Actions be tried together, on terms. Mr Caplan advised at the outset of this case management conference that the form of the order I had signed had been “rejected” by the civil trial office. He was advised by that office that separate orders would be required in each of the three actions. He provided me with three orders, in accordance with this direction from the civil trial office, and I signed them and returned them to Mr Caplan for the orders to be issued and entered.

Changes to Case Management Schedules A1, A2 and B

[9] In an endorsement released before this conference (Caplan v. Atas, 2019 ONSC 3284), I provided the parties with updated lists of litigation, a litigation history from January 2018 to May 2019, and a draft agenda. As stated in para. 109 of that endorsement:

The parties should appreciate that there is a large mass of materials that have been provided to the court over the past sixteen months. It may be that this summary overlooks materials. And it may be that this summary does not fully explain a party’s position on an issue. This summary is intended to describe where matters now stand, as an aid to ongoing case management. The court will permit the parties to propose changes to the attached Schedules, and to supplement the information set out in this endorsement, where to do so will assist in advancing the case management process.

The parties shall provide me with any changes they propose to the draft schedules (A1, A2 and B) by 3:00 pm on Friday September 20, 2019. The parties should work from updated versions of these schedules which will be released shortly.

Claims Related to Sutton Group

[10] The litigation involving Sutton Group includes three actions: two small claims court actions (12-SC-6446 and 13-SC 21972) and one Superior Court Action (14-CV-498399). Counsel for Sutton Group, Mr Conway, advises that the two small claims court actions are identical claims for $18,163.69. [1] The Superior Court proceeding is a claim for $4 million.

[11] Litigation between Ms Atas and Sutton Group (and related parties) has not advanced since the judgment of January 2018. If these cases are to proceed the parties must advance them promptly. Order to go as follows:

(a) Mr Conway’s client shall provide Ms Atas with complete copies of his client’s amended statements of defence in the small claims court actions, including all attachments, by June 14, 2019. Mr Conway has agreed to provide copies of the original defences in these actions, including attachments, if he has copies in his file. (b) Ms Atas shall provide Chavali requests to the court in respect to all the Sutton Group litigation (including litigation against parties related to Sutton Group) by August 16, 2019.

[12] If Ms Atas is not satisfied that she has received everything she believes she is entitled to from Sutton Group pursuant to this endorsement, she must still provide her Chavali requests in accordance with this endorsement: she may raise any apprehended shortcomings in disclosure by Sutton Group in her request.

[13] Ms Atas objected to making a Chavali request of this court respecting the Sutton Group litigation because this court characterized that litigation as “peripheral” in a prior case management conference. Ms Atas declined to call this objection an allegation of bias or reasonable apprehension of bias, but said that, nonetheless, this court should not be deciding her Chavali requests because of this prior comment.

[14] The allegation is, in substance, an allegation of reasonable apprehension of bias, and is without merit. It is based on a decontextualized characterization of a prior comment by the court – a comment that was well-founded in the context in which it was made, but which does not reflect prejudgment on the underlying merits of the Sutton Group litigation. It is another meritless argument that this court lacks jurisdiction or should recuse itself from the matters before this court.

[15] Ms Atas should understand that if she fails to make the required Chavali requests, the court may dismiss her claims in the Sutton Group litigation at the next case management conference.

Formal Orders

[16] In endorsements released in May 2019, I provided the parties with signed orders reflecting decisions taken earlier in case management:

(I) Dismissing counterclaims in the defamation proceedings for failure to make Chavali requests to continue with them; (II) Dismissing the sole remaining action against the Chahals; (III) Dismissing the small claims court proceedings involving David Sloan and his law firm.

[17] It was not clear to me from my review of the file whether the interlocutory injunction order granted in the Caplan defamation proceeding was signed. The parties advised me that it has not been. I intended to return to this issue before the end of the case management conference, but it was overlooked. I will revert to the parties on this issue in due course.

[18] The parties confirmed that they are not aware of any other formal orders or judgments to be signed arising from prior appearances.

Dismissal Orders

[19] Three motions were brought to dismiss proceedings, all delivered in December 2018 and all premised on Ms Atas’ failure to make Chavali requests to continue litigation, despite orders that she do so or face having her proceedings dismissed.

[20] In the Judgment in the s.140 application (2018 ONSC 58; aff’d 2019 ONCA 359), I stated as follows:

I have evaluated the underlying proceedings [in this s.140 application] on the basis of the pleadings, the steps taken in the proceedings, documents referenced in the pleadings that were attached as exhibits in the record, the affidavits filed by the parties (though not comments by the applicants’ affiants about the merits of the underlying proceedings) and the cross-examinations conducted in this application. It is an extensive record, but it is by no means a record on the merits of all the underlying proceedings.

I am satisfied that the record before me is more than sufficient for me to adjudicate the s.140 application. It is not sufficient for me to adjudicate the merits of the underlying proceedings. That remains to be done. Throughout this judgment I have made comments about the merits of some of the underlying proceedings and Ms Atas’ proposed future course of that litigation. I have come to what I consider to be reasonable conclusions on the basis of that limited record in order to decide whether an order should be made under s.140. As I said at the outset of these reasons, it is patently obvious from the record that Ms Atas is a vexatious litigant. The difficult issues concern what to do about her claims. As stated by Morgan J.:

A vexatious litigant order does not deprive a person of access to the courts. Rather it provides an extra layer of oversight by the court; it is aimed at a litigant’s conduct, but does not prejudice the merits of a claim.

I have provided directions about how each piece of litigation is to proceed next and have provided deadlines for moving forward. I have also provided “blanket” or “clean-up” directions that any and all other litigation issues involving Ms Atas must be brought to my attention, in case I have missed something or any of the parties have missed something in their materials. My directions are based on the pleadings and the court proceedings that have taken place already. Where I conclude that there is an arguable issue that ought to proceed on the merits, none of my findings in relation to that issue in this decision will create an issue estoppel: these findings are final and binding in the context of the s.140 application, but no more than tentative appraisals for the purpose of the underlying proceedings.

As will be seen from my findings in this decision and in my directions for individual actions, there are proceedings that appear to me to be abuses of process that should not be permitted to proceed. However, I am providing Ms Atas an opportunity to demonstrate otherwise, following a process that is proportionate to the interests at stake, with an eye to providing the oversight mandated by s.140(3) and the Chavali order I have made. This combination protects Ms Atas’ ability to make a case to be permitted to continue with claims while at the same time protecting opposing parties from continued vexatious behaviour by Ms Atas. (paras. 331-334)

Ms Atas believes that it is fundamentally unfair that she should have to proceed before this court, in light of this court’s findings about the underlying proceedings in the s.140 application. I have explained to her my reasons for concluding that I should continue to manage the underlying proceedings. The Court of Appeal upheld my decision. And yet Ms Atas continues to object to this court taking the necessary steps to manage the underlying proceedings. The continued objections are vexatious. This issue has been decided and now has been upheld on appeal.

[21] Ms Atas has been told repeatedly that she must follow the process directed by this court if she wishes to pursue the underlying litigation. To this point she has failed “to make a case to be permitted to continue with claims.” As a result she may be foreclosed from pursuing her claims, a consequence that has been made clear to her repeatedly over the past 17 months.

(a) Actions Against Peoples Trust

[22] The first two motions were brought by Peoples Trust to have the court dismiss two actions brought against it by Ms Atas. One of these actions had been administratively dismissed in 2014, but while a stay of proceedings was in place (CV-10-411415). I granted the motion and made the following handwritten endorsement on the back of the motion record in respect to this proceeding:

Ms Atas filed no responding materials. She failed to deliver Chavali requests though ordered to do so. She said that she should not have to make Chavali requests because of her pending appeal, a position inconsistent with the refusal of this court and the Court of Appeal denying a stay, which was explained to her. She still did not comply. This motion was delivered in December 2018; still she did not comply. On May 6, 2019, the Court of Appeal dismissed her appeal, and still she did not comply. Today, nearly 17 months since the Judgment, having taken no action to move forward with this case, it is only fair to People’s Trust that it be brought to an end. Finally, Ms Atas raises bias as a reason for her non-compliance: there was no point in making a Chavali request because this court has already made its mind up – she invited me to review the entire recording of three prior case conferences in support of yet another allegation of bias against this court. This is no explanation for failure to comply with the court’s orders to make Chavali requests, and on its face is meritless – the court will not go back and review the recordings from three lengthy case conferences on this basis. Ms Atas argues that she is not alleging bias – and believes the endorsement does not reflect what was said in court. In this characterization she is wrong, and her quarrel with my characterization of her submissions is, in any event, irrelevant to her failure to make Chavali requests.

The motion was granted. The action had already been dismissed administratively, though that earlier dismissal was inconsistent with this court’s stay order. Rather than setting aside the administrative dismissal only to then dismiss the action, I granted an order confirming the administrative dismissal and ordering that the action not be restored.

[23] I also granted the motion for judgment in the other action against Peoples Trust, and provided the following handwritten endorsement on the back of the motion record:

Ms Atas filed no responding materials. She failed to deliver Chavali requests though ordered to do so. She said that she should not have to make Chavali requests because of her pending appeal, a position inconsistent with the refusal of this court and the Court of Appeal denying a stay, which was explained to her. She still did not comply. This motion was delivered in December 2018; still she did not comply. On May 6, 2019, the Court of Appeal dismissed her appeal, and still she did not comply. Today, nearly 17 months since the Judgment, having taken no action to move forward with this case, it is only fair to People’s Trust that it be brought to an end. Finally, Ms Atas raises bias as a reason for her non-compliance: there was no point in making a Chavali request because this court has already made its mind up – she invited me to review the entire recording of two prior case conferences and the oral submissions made on her behalf by Mr Napal on September 11, 2015, in support of these allegations of bias. This is no explanation for failure to comply with the court’s orders to make Chavali requests, and on its face is meritless. The court will not go back and review the recordings from these attendances – two lengthy case conferences and a day-long oral argument on the s.140 application – on this basis. Ms Atas argues that she is not alleging bias: in this characterization she is wrong. In any event, her quarrel with my characterization of her submissions is, in any event, irrelevant to her failure to make Chavali requests as ordered. This must have been clear to Ms Atas in December 2018 because this court dismissed other proceedings by Ms Atas for the same reason at that time.

[24] I dismissed both actions against Peoples Trust without costs as no costs were requested.

(b) Actions Against LawPro Defendants

[25] Numerous other defendants to actions brought by Ms Atas moved in one motion for an order dismissing the proceedings against them for failure by Ms Atas to make a Chavali request or to take any other steps to advance the litigation against them. My handwritten endorsement in respect to this motion reads as follows:

Two of the actions have been dismissed already: Gomes and Kelly v. Atas (04-CV-279726) and Atas v. Baker Schneider Ruggiero (05-CV-302734). One of these actions was included on the list [of litigation] in error (11-CV-429140){likely a typographical error of 11-CV-429148}. One other of these actions may have been dismissed already: Atas v. Patrice Côté (05-CV-302736).

In respect to the balance of the proceedings (14 actions), this court directed that Ms Atas deliver Chavali requests to reopen the predicate litigation by October 19, 2018, failing which the defendants in these actions could move for dismissal. Ms Atas did not bring the Chavali requests. She was warned, repeatedly, that if she did not take steps to move her litigation forward, it would be dismissed. Then at the December case conference, the court dismissed Ms Atas’ counterclaims in the Defamation Proceedings for failure to bring Chavali requests and authorized the defendants to bring these motions. Ms Atas delivered no responding materials, and no Chavali requests. She has done precisely nothing to advance these claims since January 2018. She has had her many chances. The actions set out in Schedule “A” [to the notice of motion] other than the four described above are all dismissed. Counsel shall prepare and deliver to me copies of dismissal orders in each action for my signature. Counsel shall determine whether the action involving Mr Côté (05-CV-302736) has been dismissed. If not, it shall be, and a draft order should be sent to me for signature. The moving parties do not seek costs of these actions and none are ordered.

[26] The actions dismissed as a result of this motion are:

(a) Atas v. Kagan Shastri (05-CV-302742) (b) Atas v. Kagan Shastri (05-CV-313064) (c) Atas v. David Brooker (06-CV-315208) (d) Atas v. Steinberg Morton (06-CV-315671) (e) Atas v. Kagan Shastri, Ira T, Kagan, Rahul Shastri, David Winer, Patrice A.J. Côté, Baker Schneider Ruggiero and David J. Sloan (07-CV-343745PD1) (f) Atas v. Pires, Atlantic (HS) Financial Corp., Frank S.C. Pa, Rui Ruivo and Ron Hatcher (08-CV-346821PD3) (g) Atas v. David Brooker (08-CV-349206PD3) (h) Atas v. Steinberg Morton Frymer, Taras Kulish and Moses Muyal (08-CV-354613) (i) Atas v. Kimberley and Kimberley, Michael Harold Kimberley and Irene Mary Kimberley (09-CV-3919695) (j) Atas v. Mitchell and Canizares (10-CV-411421) (k) Atas v. Bresver (10-CV-411424) (l) Atas v. Ralph Brian Steinberg (11-CV-429148) (m) Atas v. Mitchell (11-CV-429176) (n) Atas v. Stancer Gossin Rose LLP (14-CV-504825)

[27] Ms Atas argued that these actions are not “collateral” to underlying judgments in mortgage enforcement proceedings. I do not agree with her view on this point. However, her failure to take any steps to advance these actions, or to respond to the dismissal motion, delivered in December 2018, is a sufficient basis for dismissal. Ms Atas is a plaintiff in these proceedings. Her actions are stayed by virtue of the s.140 Judgment. She has been told what she has to do if she wishes to pursue these matters. She has done nothing. These proceedings range in age from 5 to 14 years: I see no reason why the plaintiffs should be put to the time and expense to bring motions to dismiss for delay when Ms Atas has failed to take any steps to advance this ancient litigation for 17 months since the Judgment.

Ms Atas’ Issues Concerning Jurisdiction, Bias and “Certain Constitutional Questions”

[28] In January 2019, Ms Atas said that she had fresh allegations of lack of jurisdiction, bias, and “certain constitutional questions” that she wished to pursue. She sent a series of emails on these topics, seeking an urgent case management conference. That request was denied: Ms Atas was told that she had not explained why any of these issues was urgent, and so they should be raised at the next regular case management conference: 2019 ONSC 911, 2019 ONSC 1214, and 2019 ONSC 1441.

[29] I included Ms Atas’ fresh issues of jurisdiction, bias and “certain constitutional questions” on the agenda for this case management conference. Ms Atas indicated that she did not wish to pursue any further allegations of jurisdiction and bias (even though she raised reasonable apprehension of bias as her excuse for not complying with this court’s directions to deliver Chavali requests for litigation she wishes to pursue, as described above). She also indicated that she did not wish to raise the “constitutional questions” that had been concerning her earlier this year. Accordingly, I have not scheduled any steps respecting these points.

Defence in the Babcock Action and in the Other Defamation Proceedings

[30] I understand that statements of defence have been served and filed in all the Defamation Proceedings other than the Babcock Action. In respect to the three defamation actions in which statements of defence have been filed, Ms Atas shall provide me with copies of her pleadings by July 5, 2019, by email sent to my assistant. [2] I understand that some or all of these pleadings may contain counterclaims. That is of no moment now: the counterclaims have been dismissed by prior order of this court. Copies of the pleadings, as they have been filed with the court, are to be provided to me by July 5th.

[31] Ms Atas was ordered to file her defence in the Babcock Action by January 31, 2019. I understand that she has served her defence but she has not filed it. Ms Atas explained that her pleading includes a counterclaim, but she did not want to file the counterclaim and incur a filing fee for a counterclaim, if this court was just going to strike the counterclaim. Ms Atas has been told, repeatedly, that she must make a Chavali request if she wishes to commence or pursue a counterclaim. I confirmed this again at the case management conference on May 31st. Ms Atas then told me that she does not believe the Judgment precludes her from commencing and pursuing a counterclaim without first making a Chavali request and, if permitted, seeking and obtaining leave pursuant to s.140(3) of the Courts of Justice Act. There is no merit to this position: the Judgment covers every proceeding and every step in a proceeding, whether Ms Atas is a plaintiff or a defendant. Ms Atas understands this: indeed, it was one the bases on which she pursued her unsuccessful appeal of the Judgment.

[32] Ms Atas is to file her statement of defence in the Babcock Action by July 5, 2019. She is to provide this court with a copy of this pleading, as filed, by July 5, 2019. If Ms Atas does not complete this step on time, then she should expect that the Babcock Action will thereafter proceed by default without her further participation.

[33] Ms Atas asked for a later deadline on the basis that she has personal family commitments (which she would not detail to me because they are “private” matters), and a great deal of work to do to finalize materials she intends to file to seek leave to appeal to the Supreme Court of Canada. I rejected this request. Ms Atas’ deadline to provide this pleading was January 31st. She has already sent a copy of her intended pleading to counsel opposite. She shall complete this step by June 28th or risk the consequences described.

Outstanding Issues Before the Court

[34] There are two areas where the parties have delivered materials and await directions or decisions from the court:

(a) Mortgage enforcement costs claims of Peoples Trust, disputed by Ms Atas; and (b) Claims for costs by Ms Atas respecting steps taken in the underlying litigation.

[35] I noted at the outset of discussion on these issues that I have received the parties’ materials on these issues and that I consider them ripe for decisions and directions. Ms Atas stated that she believes that she is still entitled to deliver further materials respecting the mortgage enforcement costs. She said that she had raised this previously and that I had said that she would have a further opportunity to file materials.

[36] That is not at all correct. I reviewed the history of the exchange of materials on this issue with Ms Atas in detail and then took her to my endorsement of January 3, 2019 (2019 ONSC 71), which reflected decisions made and related to the parties on December 7, 2018:

Ms Atas asks to file supplementary materials related to the mortgage enforcement cost accounting issues. Her deadline was October 19th and she provided her materials on October 21st. At the case management conference Ms Atas said that she had forgotten to include about two pages of argument and seven pages of attachments. She asked to be able to file these materials “after the holidays”.

I advised Ms Atas that I would exercise my discretion to file these materials by December 17th, and indicated that she could provide these materials to me when she appeared before me for sentencing on the contempt matters (as previously scheduled).

Ms Atas did not bring these materials with her on December 17th. Instead she asked for further time to provide them. As I indicated to her on that day, the attendance on December 17th was solely for the purpose of addressing the contempt matters. I was not prepared to hold a further case management conference on that day because of lack of time to do so and lack of notice to other parties. And I would not re-open matters decided on December 7th in the absence of a properly constituted case management conference, on notice to all affected parties.

Ms Atas was to provide her detailed response to the mortgage enforcement cost accounting issues pursuant to the judgment of January 3, 2018. She did not do so. She then missed repeated deadlines for materials. I have accepted her materials delivered late, on October 21st. I will not accept any further materials from her at this late stage.

I now have what I consider to be complete materials on these issues and will provide my decision about them in due course. I note that I also have received materials from both sides on the “merger” issue that relates to the mortgage enforcement costs claims. I indicated to the parties that I have had a chance to review these materials briefly and consider that I may need to hear oral argument from them on this issue. I will provide an endorsement on this point in due course. (paras. 36-40)

[37] When this passage was read to Ms Atas, she was unable to explain her earlier statement that this issue was left that I would give her an opportunity to file further materials. As I have noted previously, I do not expect Ms Atas (or anyone else involved in these matters) to remember everything that has happened during case management. However I do expect Ms Atas (and everyone else involved in the case) to prepare properly for case management conferences, and not to make claims about the status of matters without having done appropriate due diligence. It wastes time in case management conferences for the court to have to look back on its prior endorsements (of which there have been more than 50 since the judgment was rendered on January 3, 2018) to assess a bald claim about what has happened to date.

[38] The parties have completed the exchange of materials on these issues. I expect to release endorsements on these issues before the end of August, 2019. Any issues arising from these endorsements may be raised at the next case management conference. While I do regret that I have not yet delivered decisions and directions concerning these matters, I did warn the parties that there could be delay in completing some matters:

I have indicated in this endorsement that further decisions will be released “in due course”. In addition, I will be releasing an endorsement summarizing the status of the overall case management process since the judgment of January 3, 2018, which will act as a road map for moving forward with case management of the litigation that remains.

These matters have required an intensity of supervision that is virtually unheard of in proceedings in Ontario. This has been because of Ms Atas’ continued defiance of the court’s orders for the past year. The parties must understand that these matters are not the only tasks on the court’s docket, and indeed, the court is behind in its other obligations in large measure because of the excessive demands these proceedings have made on the court’s time. This is not what is meant by case management – an active sort of involvement on an almost weekly basis since Labour Day is not what is meant by “case management”.

The matters that are now under reserve, and which will be released “in due course”, will be released when time becomes available for the court to direct its attention to these matters. If the need for decision on a particular point becomes pressing, for some reason, the parties may so advise the court, in writing, and I will try to accommodate such exigency as may truly exist. (2019 ONSC 79, paras. 67-69)

[39] The delay since December has been the court’s, and has been a function of the excessive demands this litigation has made on the court, on top of a regular heavy docket of judicial duties. This delay does not provide a basis for Ms Atas to extend the period for exchange of evidence, thus putting opposing parties to further unrecoverable expense.

Outstanding Costs Orders

[40] Ms Wallis provided the court with a schedule of costs ordered against Ms Atas which Peoples Trust says have not been paid. This list was reviewed during the case management conference on December 7, 2018 (see 2019 ONSC 79, paras. 41-45). I asked the parties to update this list, since additional costs orders have been made since December 7, 2018, and, in addition, the costs orders made in the s.140 application were stayed by virtue of Ms Atas’ appeal to the Court of Appeal. Now that the appeal has been dismissed, those costs orders should be added to the list of outstanding costs orders.

[41] Ms Wallis had prepared updated information for the case management conference, but it does not reflect costs ordered in favour of other parties. [3] I ask that Ms Wallis and Mr Caplan provide me with an updated list of outstanding costs orders by August 31, 2019. I ask that this updated list reflect the results of any endorsements I release over the summer respecting the outstanding issues before the court, described above.

Chavali Requests

[42] As of May 31, 2019, Ms Atas has made two Chavali requests pursuant to the Judgment. The first, following the case management conference of September 14, 2018, was a request to bring a recusal motion and related relief. This request was denied on the basis that there was another, more reasonable and proportional way for Ms Atas to pursue the issues she raised in her Chavali request (2018 ONSC 5631, paras. 34-40, 2018 ONSC 5804, 2018 ONSC 5965, para. 3 (entry for November 16, 2018). The second Chavali request arose when Ms Atas learned from the Registrar of the Court of Appeal that she would need this court’s permission to pursue her appeals of this court’s findings of contempt. This request was granted on an expedited basis to facilitate Ms Atas’ ability to appeal the finding and custodial sentence for contempt (2018 ONSC 7569, para. 83; 2019 ONSC 71, para. 61; 2019 ONSC 344).

Transcripts for the Contempt Appeal

[43] Ms Atas advised me by email and again during the case management conference that Tulloch J.A. has extended Ms Atas’ time to perfect her appeal from my finding of contempt against her and the sentence imposed for that contempt until sometime after delivery of certain transcripts. Ms Atas advised me that she had been advised by the transcriptionist that this process was now awaiting my approval for release of the transcripts. This came as a surprise to me: Doherty J.A. made an order for production of these transcripts, and I did not realize that anything was required from me in respect to this matter.

[44] After the case management conference I checked and learned that draft transcripts had been prepared, and that these were apparently awaiting my review. I obtained them and reviewed them. Certified transcripts should be provided to Ms Atas shortly; if she does not have them by June 27, 2019, Ms Atas is directed to so notify my assistant, by email, explaining her understanding of the reasons for any continuing delay.

Motions for Summary Judgment

[45] Mr Caplan advises that his materials on the motions for summary judgment in the four Defamation Proceedings are complete, subject only to the following:

(a) An affidavit from US counsel relating to electronic evidence obtained in the USA; and (b) An expert report and related affidavit from an expert witness.

Mr Caplan advised that he could serve these materials by July 19, 2019; it is ordered that this be done by July 19th.

[46] When I asked Ms Atas about a deadline for responding materials on the motions for summary judgment, she raised concerns about the use that could be made of these materials in the contempt proceedings against her that are before Pollak J. Given the quasi-criminal nature of those proceedings, and the prospect that they may be pursued as matters of criminal, rather than civil, contempt, Ms Atas advised that she considered it a violation of her right to remain silent to be required to deliver responding materials to a motion for summary judgment or face the consequence of judgment being granted against her essentially by default.

[47] Mr Caplan advised that he was prepared to undertake – and to consent to an order – that the prosecution in the contempt proceedings not be permitted to use any evidence filed by Ms Atas in the civil proceedings in its case-in-chief in the contempt proceedings. Ms Atas was not satisfied that this concession protects her rights sufficiently.

[48] This is potentially a significant procedural issue, and not one the court will decide except on a proper motion, on the basis of the evidence filed on that motion, and full argument on the applicable law.

[49] The motion arises as an objection by Ms Atas in the civil proceedings to filing responding materials on a motion for summary judgment, or for that motion proceeding on the merits, in the face of her prosecution for contempt of court. In sum, it is a request by Ms Atas for a stay – at least of the summary judgment motions – and perhaps of the defamation proceedings themselves – until the disposition at trial of the contempt proceedings. In the absence of such a stay, or relief to the same effect, the court would ordinarily impose deadlines and proceed with the defamation proceedings, either by way of motions for summary judgment, or by way of a trial. Thus in my view it is for Ms Atas to move for this stay, or other relief she thinks appropriate.

[50] Ms Atas shall deliver her notice of motion and evidence in support of her motion for a stay, or other relief she thinks appropriate, respecting this issue, by July 19, 2019. The court will provide further directions about this motion once it has Ms Atas’ motion materials in hand.

[51] If Ms Atas does not deliver her motion materials by July 19th, as ordered, then the motions for summary judgment shall proceed. The moving parties’ materials will be complete once Mr Caplan delivers the additional materials due on July 19, 2019. Ms Atas shall have until September 30, 2019 to deliver responding materials.

[52] I appreciate that this sounds complicated, and perhaps even inconsistent. Ms Atas says she will bring a motion to put a halt to these motions. I have said that the court will entertain this motion. And yet I have also stipulated a date by which Ms Atas must deliver her responding materials, assuming these matters are not stayed.

[53] Ms Atas has a long history of introducing procedural motions for the purpose of causing delay. The court has made no assessment of the potential merit of Ms Atas’ stay motion, aside from concluding that, in the thumbnail description of it given at the case management conference, it raises serious issues, has some prospect of some success, and may involve important interests for Ms Atas. Ms Atas should be given a reasonable chance to bring this motion forward. However, if she fails to do so, then matters will proceed as if she had not raised this point: delay is not purchased by stating an intention to bring a motion. Once I have a chance to review the motion materials, I will give further directions that may include lifting or extending the due date for Ms Atas’ responding motion materials.

[54] Mr Caplan asked me again to indicate that I will seize myself of the motions for summary judgment on the merits. I will not do so at this time: the request is premature. I do not know when these motions will be ready to proceed or how long they will take. It is not clear to me what efficiency, if any, will be gained by my hearing these motions. Indeed, I do not yet know if they will be opposed (Ms Atas’ failure to file responding materials in the interlocutory injunction motion in Caplan v. Atas was, at least for the court, unexpected, and left the task of deciding the motion considerably simpler than if the motion had been defended robustly).

Proceedings Before Other Courts

[55] I am aware of the contempt proceedings before Pollak J., Ms Atas’ appeal from my finding of contempt for her non-appearance on October 19, 2018 and the sentence imposed for that finding, and her intended motion for leave to appeal to the Supreme Court of Canada. I am not aware of any other proceedings pending before any other courts involving Ms Atas.

[56] Ms Atas has indicated that she wishes to appeal rulings made by this court following the Judgment of January 3, 2018. She has repeatedly sought stays of these prior orders from the Court of Appeal which have been denied on the basis that these rulings are interlocutory and appeal of them lies to the Divisional Court, not the Court of Appeal (in a recent email Ms Atas advised that the Court of Appeal has recently rendered its fourth such decision).

[57] Ms Atas has been told by this court that she needs Chavali permission and leave pursuant to s.140(3) of the Courts of Justice Act to pursue appeals, whether to the Court of Appeal or to the Divisional Court. This principle did not apply to appeal of the s.140 Judgment itself. It is not clear whether this principle applies to appeals from civil findings of contempt in the face of the court. This court gave the requisite permission and leave (without requiring a motion under s.140(3) of the Courts of Justice Act) in respect to the appeal from the s.140 Judgment and the only contempt citation for which a custodial sentence was imposed.

[58] To be clear, so there is no misunderstanding on this point, Ms Atas may not seek leave to appeal to the Divisional Court, or pursue an appeal in the Divisional Court, without first making a Chavali request and, if that request is granted, obtaining leave pursuant to s.140(3) of the Courts of Justice Act. Breach of this requirement could lead to summary dismissal of any appeal steps taken without authorization and, in addition, could lead to a citation for contempt of court.

[59] The parties are to advise the court immediately if any steps are commenced or pursued before other courts in any proceedings involving Ms Atas other than those proceedings described in paras. 54-57, above.

Show Cause Hearing For Contempt of Court

[60] Ms Atas has been ordered repeatedly to stop sending improper correspondence to the court. Indeed, this court’s order that she appear on October 19, 2019 was to show cause why she should not be found in contempt of court for repeated improper communications to the court. This issue has raised its head several times in 2019, despite the warnings, and despite a finding of contempt for which a suspended sentence was imposed.

[61] I repeat here the substance of what I told Ms Atas on this issue on May 31st. I do not want to cite her for contempt and send her to jail for sending improper communications to the court. The applicable principles are quite straightforward. They have been explained to Ms Atas numerous times. But at this point I am at a loss as to how to secure her compliance with these directions without using the contempt power.

[62] Despite this direction, immediately after the case management conference, Ms Atas sent two further emails to the court that were improper. They raised two points – one related in some fashion to potential appeals to the Divisional Court, and the other concerning protocols and principles related to self-represented litigants. Ms Atas was given an opportunity to raise her issues at the case management conference, and she did not raise these issues. There is nothing urgent about them, and no argument was made by Ms Atas that they are urgent. Ms Atas is warned, once again, that further improper communications with the court could lead to a contempt citation, and the sanction could be a period of imprisonment.

Next Case Management Conference

[63] The next regular case management conference will be on Friday September 27, 2019, 10 am, for an estimated full day. The court will provide a draft agenda in advance of the conference; parties should provide any additional proposed items for the conference to the court by 3:00 pm on September 25, 2019.

D.L. Corbett J. Date: June 11, 2019

Footnotes

[1] Mr Conway advises that there is no claim advanced for unpaid commissions of $40,176.50, contrary to information set out in prior court endorsements based on evidence presented to the court during the course of the s.140 application. Mr Conway also noted that his client advised that it takes the position that it owes no money to Ms Atas by email from Mr Conway dated May 25, 2018.

[2] At the case management conference I stipulated a deadline of June 30th. That day is a Sunday. I exercise my discretion to extend the deadline to the following Friday, July 5th.

[3] The list provided by Ms Wallis (totalling $211,800 in favour of Peoples Trust) includes an order for $750 in respect to a Registrar’s dismissal order that has been set aside; that item should be removed from the list. It also includes costs awards which Ms Atas says have been paid out of closing proceeds in mortgage enforcement proceedings – that issue is before me for decision. Ms Atas argues that the costs orders should not accrue interest because funds held in trust have not been kept in an interest-bearing account: that issue will be addressed on another day, once I have provided the parties with a decision on mortgage enforcement costs.