Citation: Atas v. Ministry of the Attorney General, 2017 ONSC 6029

COURT FILE NO.: CV-16-564078

DATE: 2017-11-06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nadire Atas, Applicant

AND: Ministry of the Attorney General, Respondent

BEFORE: Pollak J.

COUNSEL: Nadire Atas, self-represented Applicant Heather Burnett, for the Respondent

HEARD: October 4, 2017

Reasons for Decision

[1] The Applicant, Ms. Atas, is a party to several civil actions that are related to mortgage enforcement proceedings, as summarized in Peoples Trust Company v. Atas, 2016 ONSC 5911.

[2] The Applicant is also the Defendant in a defamation action (court file no. CV-16-544153), wherein the Plaintiffs claim damages against Ms. Atas and have been granted interim and interlocutory injunctions to restrain her from making and to order her to remove statements about the Plaintiffs that the Applicant allegedly posted online.

[3] On January 5, 2016, Corbett J. granted an ex parte interim injunction against the Applicant to prevent her from publishing any further statements about the Plaintiffs, and to require her to remove and preserve any existing statements that she had posted.

[4] The Plaintiffs brought a motion for contempt against the Applicant pursuant to r. 60.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for alleged breaches of the ex parte injunction.

[5] The Applicant served the Ministry of the Attorney General with a Notice of Application and supporting affidavit for a Rowbotham Application, which was commenced as a separate proceeding. Ms. Atas’ Notice of Application asks for a stay of the contempt motion until the Attorney General of Ontario provides funding for counsel for the Applicant. These reasons deal with Ms. Atas’ request for counsel.

[6] The contempt motion before the court in the defamation action against the Applicant has been adjourned to permit the Applicant’s Rowbotham Application to be heard.

[7] The Attorney General submits that the following are the issues to be determined by the court:

(a) Can a Rowbotham application be granted in respect of civil contempt proceedings?

(b) Does the Applicant actually meet the Rowbotham test?

[8] The Attorney General submits that the answer to both of the above questions is “no” as public funding for counsel should not be ordered in civil proceedings between private parties.

[9] The Attorney General submits that this Rowbotham application is a type of Charter application made within a proceeding to prevent the Applicant’s ss. 7 or 11 rights from being infringed due to a lack of legal representation. In the case of R. v. Rowbotham, 1988 CanLII 147 (ON CA), 25 O.A.C. 321 (Ont. C.A.), from which case the application takes its name, the Court of Appeal for Ontario held as follows, at para. 194:

a trial judge confronted with an exceptional case where legal aid has been refused, and who is of the opinion that representation of the accused by counsel is essential to a fair trial, may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided.

[10] Further, the Attorney General advises that “Rowbotham applications are most commonly brought in the context of criminal proceedings and not a civil proceeding. The Court has the power to stay the criminal proceedings against the accused if the government does not provide funding for counsel. Applications for publicly funded counsel have also been made in child protection proceedings, as these proceedings can affect the s. 7 Charter rights of the parents involved. In such cases, the remedy is an order directing the government to provide funding for counsel.” (See New Brunswick (Minister of Health and Community Services) v. G.(J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46.)

[11] The Attorney General argues that courts have held that publicly funded counsel should not be ordered in civil contempt motions. Counsel relies on the case of Burgoyne Holdings Inc. v. Magda, 2005 CanLII 3388 (ON SC), 74 O.R. (3d) 417 (Ont. S.C.J.), wherein the court held that the Rowbotham principles do not apply to civil contempt motions because the procedural protections afforded to the respondent in a civil contempt motion under r. 60.11 are consistent with the principles of fundamental justice and therefore do not violate s. 7 of the Charter. The court also held that the respondent to a civil contempt motion could not rely on s. 11 of the Charter since contempt is not an offence for which one is charged.

[12] The Attorney General emphasizes that, in this case, where Ms. Atas requests public funding for her defence of a civil contempt motion, the framework for public funding of counsel does not apply.

[13] In Burgoyne Holdings Inc., at para. 14, Walters J. discussed the “rationale or public policy” behind Rowbotham applications. She said, “[i]n exceptional cases, if the State wishes to proceed with charges against the accused, it might be obliged to pay for defense counsel to ensure a fair trial. The State controls the process” [emphasis added]. When, as here, the State does not initiate the proceedings, the Rowbotham framework simply may not apply.

[14] In the alternative, the Attorney General submits that even if Rowbotham principles did apply, Ms. Atas does not meet the test as her right to a fair trial will not be materially compromised absent public funding for counsel.

[15] The Attorney General summarizes the requirements for a Rowbotham application as follows:

(i) The Applicant is ineligible for or has been refused Legal Aid and has exhausted all appeals for reconsideration of her eligibility;

(ii) The Applicant is indigent and unable to privately retain counsel to represent herself at trial; and

(iii) The Applicant’s right to a fair trial will be materially compromised absent public funding for counsel.

[16] The Attorney General submits that Ms. Atas does not meet the second or third branches of this test.

[17] Although the court provided Ms. Atas the opportunity to give oral evidence on these requirements, she did not have any documents with her in court to support her evidence that she cannot afford a lawyer.

[18] With respect to the third branch of the test, the Attorney General argues that Ms. Atas has not established that hers is one of the “rare and exceptional cases” where legal representation is required to prevent a breach of her Charter rights.

[19] The Attorney General submits that in determining whether a lack of representation may lead to a breach of Charter rights, courts consider the complexity of the proceedings as well as the ability of applicants to represent themselves, including the applicant’s education, employment background, ability to read, and facility with the language of the proceedings. (See R. v. Rushlow, 2009 ONCA 461, 96 O.R. (3d) 302, at paras. 19—20.)

[20] The Attorney General submits that the contempt motion will require the court to address the following three issues:

(a) What did Corbett J.’s order require;

(b) Did the Applicant comply with that order; and

(c) If not, what is the appropriate remedy?

These are not legally complex issues and the Attorney General submits that Ms. Atas’ Charter rights will not be violated if she is not provided with counsel to assist her in responding to the contempt motion against her. The Attorney General relies on jurisprudence wherein the court found that the Applicant had the factual knowledge needed for a defence in the proceeding, and therefore it could not be said that the Applicant had shown that the proceedings were “complex”. Similarly, Ms. Atas has the factual knowledge needed for a defence, particularly in relation to her own compliance with the injunction order. I agree that in Ms. Atas’ contempt proceedings the issues I have referred to above do not meet the level of complexity required to grant Ms. Atas’ Application. It is therefore not necessary for this Court to rule on the other above-noted submissions made by the Attorney General.

[21] The Application is therefore dismissed for the above-noted reasons.

Pollak J.

Date: November 6, 2017