Court File and Parties

COURT FILE NOS.: CV-10-400035/ 08-CV-352871/08-CV-364585/ 04-CV-279726/CV-14-515899/CV-18-594948/CV-16-544153/ CV-16-564078/various DATE: 20180627 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Numerous Proceedings Involving Nadire Atas

BEFORE: D.L. Corbett J.

COUNSEL: Christina J. Wallis, for Peoples Trust Gary M. Caplan, for Applicants other than Peoples Trust and the Chahals Yoginder Gulia, for the Chahals Nadire Atas, self-represented and for 626381 Ontario Limited

Endorsement

Preliminary Matters

[1] Ms Atas failed to file her proposed agenda for today on time. She was directed to do so by Friday June 22, 2018, but did not do so until Monday June 25, 2018. As a result, her proposed schedule was not available to be considered when I was preparing for today’s case management meeting. She explained today that she was busy with other attendances in court and did not have time to complete her agenda until the weekend. I have explained previously to Ms Atas that it is necessary for her to file her documents on time if she wishes her position to be considered – the deadlines are imposed to establish an orderly process. I indicated that we would proceed today on the basis of the proposed agenda submitted by the other side, but that Ms Atas could have recourse to her proposed agenda during the case management meeting.

[2] Ms Atas has provided a copy of her draft order for the setting aside of the noting in default in CV-10-400035. Mr Caplan has previously provided a draft to the court. The court will obtain a copy of this draft and then sign the order; Mr Caplan’s office may follow up with the court’s assistant on Thursday to obtain the signed order.

[3] In connection with Ms Atas’ departure from 298 St George Street, after its purchase by the Chahals, the Chahals placed personal property of Ms Atas’ in a storage locker. It has remained there since – apparently since January 2010. Current monthly costs for the rental are reported to be $316.34, and the total rental paid for this locker is said to have been $28,800.27. The Chahals claim that they are entitled to be reimbursed for this rental cost, and are entitled to sell the personalty to offset these costs. However, they also wish to be free of litigation with Ms Atas. They therefore agree that Ms Atas may recover the property without paying them the locker rental charges, without prejudice to their claim against Ms Atas for those locker rental charges. Ms Atas agrees to proceed in this way. Ms Atas proposes that she take over the locker rental agreement from the storage company. The court is content that the parties work out a way for the property to be transferred to Ms Atas, if they can. However, given the history, it is necessary that there be a fallback position. Order to go as follows:

Ms Atas shall remove the personal property stored in the storage locker rented by the Chahals by July 31, 2018. This may be accomplished by transfer of the storage locker rental agreement to Ms Atas, if the Chahal’s, Ms Atas, and the storage rental company agree. In the absence of such agreement, Ms Atas shall remove the property from the locker by July 31, 2018. If the property is not transferred to Ms Atas pursuant to this order by July 31, 2018, the Chahals may request an order from the case management judge at the next case management meeting, for the disposition of the property without further opportunity for recovery of it by Ms Atas.

[4] Ms Atas wishes to pursue claims against the Chahals respecting: (a) The retention of her personal property; (b) The termination of her residency at 298 St George Street; (c) The purchase of 298 St George Street by the Chahals. The purchase of 298 St George was in June 2009. The termination of Ms Atas’ residency at 298 St George took place in August 2009. Ms Atas shall make a Chavali request of the court to continue claims against the Chahals by July 31, 2018, failing which these claims may be dismissed at the next case management conference.

[5] In respect to the claims involving Sutton Group Realty, there are claims respecting: (a) Unpaid commissions owed by Sutton Group to the benefit of Ms Atas; (b) Claim for recovery of Ms Atas’ personal property (documents and mail); (c) Claim for damages by Ms Atas respecting use made of the documents / mail. The claims by Ms Atas all relate to her position respecting Sutton Group, where she did work, for a time, as a real estate agent. Peoples Trust sought to garnish the money owed by Sutton Group to Ms Atas. That money has apparently not been paid to either Ms Atas or to Peoples Trust, and appears to remain an obligation of Sutton Group to the benefit of Ms Atas. Thus I can see a basis for Ms Atas being permitted to proceed with that claim. In respect to the claims asserted by Ms Atas against all natural persons related to Sutton Group (employees, officers, directors, professional advisors), Ms Atas shall provide a Chavali request of the court to continue these claims against persons other than Sutton Group by July 31, 2018, failing which these claims may be dismissed at the next case management meeting. (d) Mr Bush, who attended today, wishes to sue Ms Atas by way of counterclaim if the claims against him by Ms Atas continue. If those claims do not continue he does not wish to bring suit against Ms Atas. I will consider this issue further at the next case management conference. (e) Mr Bush advises that he has a claim against Sutton Group for unpaid professional fees. That claim is not caught by my order staying proceedings involving Ms Atas – it is a claim between a legal services professional and his client for services rendered – Mr Bush may pursue this claim outside the case management process. This direction is without prejudice to any limitation defences that may apply to such a claim or any arguments about the apparent effects of my stay orders on the tolling of limitations periods. (f) The process for the claims by Ms Atas against Sutton Group will be settled at the next case management conference. For some reason Sutton Group chose not to attend today. I will settle the process for the claims against Sutton Group at the next case management conference, and if Sutton Group does not appear an order may be made against its interests, in its absence.

[6] In respect to the three defamation actions, the plaintiffs are now all represented by Mr Caplan. They seek consolidation or an order that they be tried together before the same judge. They seek a trial date and appointment of a trial judge. They believe the trial can be conducted in two weeks. Ms Atas does not consent to consolidation, but does agree to trial together before the same trial judge. In my view the cases ought to be ordered tried together or serially in front of the same trial judge – the issue of application of facts in one proceeding to the other proceedings can be addressed by the trial judge as matters of similar fact evidence.

[7] In my view the trial date ought to be obtained from Justice Firestone, in his capacity as head of the Toronto Civil Team. I agree with the preliminary assessment that two weeks ought to be sufficient time for the trial. The key relief sought is a permanent injunction (damages are sought but it seems unlikely there is a prospect of recovery of material damages). There is an interlocutory injunction in place and the plaintiffs are obliged to move forward to trial expeditiously now that the s.140 application has been decided and case management is moving forward.

[8] Ms Atas was canvassed over deadlines for delivery of pleadings in the defamation proceedings. She is under the burden of three injunctions, now in place until trial in the actions, and she has been clear in her materials that she considers these injunctions burdensome. The plaintiffs say they are ready for trial now in these actions, and the only impediment to moving forward is scheduling steps required by Ms Atas to ready her for trial. I have made this clear to her – that the delay extends the period during which these injunctions will be in force before trial, and that if she does not like having the injunctions in place, she can move more quickly to ready herself for trial. To be clear – I indicated that the court will take reasonable steps to expedite these trials in view of Ms Atas’ position that she is prejudiced by continuation of the pre-trial injunctions.

[9] Ms Atas has not completed pleadings in the defamation actions. She has agreed to complete these documents and serve them by July 13, 2018, and to file them by July 20, 2018. I would have been prepared to give her more time than this, however, I understand her desire to see these actions move forward promptly, and deadlines imposed on the plaintiffs depend on these early dates for Ms Atas’ pleadings in the defamation proceedings.

[10] In particular, Ms Atas will serve and file a defence in the 2010 Defamation Proceedings and in the 2018 Defamation Proceedings. There is already a defence filed in the 2016 Defamation Proceedings.

Orders and Directions

[11] Ms Atas wishes to pursue counterclaims in at least some of the defamation actions. She requires leave under s.140 of the Courts of Justice Act to do this, and before she can apply for that leave, she needs Chavali permission from this court. The most practical way in which to proceed, in view of Ms Atas’ concern about the continuing injunctions, is to permit Ms Atas to file counterclaims as part of her defences to the defamation proceedings, to direct that the plaintiffs need not defend the counterclaims pending further court order, and directing Ms Atas to provide a Chavali request for the counterclaims. In this way, the proposed claim is clearly delineated and the process of closing pleadings in the defamation proceedings will not be delayed unduly by the Chavali process. I set the date for the Chavali request at Ms Atas’ suggestion – she can, of course, make the request earlier, in which case the schedule could be accelerated at the next case management conference. On this basis, order to go:

(a) That Ms Atas serve statements of defence, which may include counterclaims, in the 2010 and 2018 Defamation Proceedings by July 13, 2018, and file those documents with the court by July 20, 2018; (b) That court fees be waived for Ms Atas for filing of the documents described in a., above; (c) That the plaintiffs need not deliver statements of defence to any counterclaims brought by Ms Atas in any of the three defamation proceedings pending further order from the case management judge; (d) Ms Atas shall provide a Chavali request in respect to any counterclaims she has asserted or does assert in any of the defamation proceedings by September 30, 2018; (e) Ms Atas indicates that she has motions she wishes to bring in the defamation proceedings, including motions before me to set aside or vary injunction orders currently in place. Ms Atas may make Chavali requests to take any of these steps; she will not be permitted to bring any of these motions before she has made such Chavali requests. I will give further directions about any such proposed motions at the next case conference, if any Chavali requests have been made by that time. (f) The plaintiffs shall serve their affidavits of documents in the defamation proceedings by August 31, 2018, on the following terms: (i) They need not list and re-produce documents that have been filed in materials served on the injunction motions, but instead shall reference these previously filed documents in the affidavit of documents; (ii) They shall list all other documents as required by the Rules, and shall provide one copy of each such producible document to Ms Atas, at their expense. (iii) They need not list or produce documents relevant only to the counterclaim(s) pending further order of this court. (g) Ms Atas has indicated that she wishes to pursue appeals of one, some or all of the interlocutory or interim injunctions. To do this would require a Chavali request (which has not been made), a motion pursuant to s.140(3) of the Courts of Justice Act, a motion for leave to appeal to the Divisional Court, and then, if leave be granted, the appeal itself. Given the length of time these orders have been in place, the alacrity with which these matters could proceed to trial, the relative costs involved, and the broadly discretionary nature of the injunction remedy, it seems to make no sense to spend time and money on interlocutory proceedings. However, if Ms Atas wishes to pursue any of these matters by way of appeal, she may make Chavali requests that she be permitted to do so. If and when such requests are made I will address these issues further. (h) Plaintiffs shall schedule a trial scheduling conference with Firestone J. on a date after the next case management conference. (i) There is no point in these three defamation cases being mediated – it would be a waste of time. Order to go dispensing with the requirement for mediation. This direction is without prejudice to Firestone J., at the trial scheduling conference, directing mediation or a pretrial if he is of the view that these steps should take place.

[12] In respect to 08-CV-364585 (Wycliffe Mortgage Proceedings), there are two sets of issues: (a) What are Peoples Trust’s enforcement costs for the mortgage; and (b) What effect, if any, does the judgment of Aston J. have on the recoverability of those enforcement costs? Peoples Trust has provided detailed explanations for each aspect of its claimed enforcement costs. Ms Atas has not responded to this accounting.

[13] In respect to 08-CV-352871 (St George Mortgage Enforcement Proceedings), there are the same two sets of issues. Again, Peoples Trust has provided a detailed accounting and Ms Atas has not responded to this accounting. Again, there is an issue respecting the effect of the judgment of Lederer J. on the recoverability of pre-judgment enforcement costs, an issue that Ms Atas has raised clearly.

[14] Ms Atas was directed to provide a detailed response to Peoples Trust’s accounting in my judgment in January 2018. She has not done so and so this large task remains to be completed. Ms Atas has “a lot on her plate”. Peoples Trust is entitled to have this issue concluded, once and for all, but I cannot say that there is urgency to get this issue decided. I accept Ms Atas’ position that she will need until October 2018 to provide this information. She shall do so, in respect to both mortgage enforcement costs proceedings, by October 19, 2018. I have explained to her that this is to be a line-by-line response, indicating which claimed expenses she accepts, which expenses she challenges, and all of her reason(s) for challenging any claimed expense.

[15] Peoples Trust shall deliver its written legal argument respecting the effect of the judgments of Aston and Lederer JJ. on the ability to collect prejudgment and post-judgment legal and other enforcement costs by September 21, 2018. Ms Atas shall provide her responding legal argument on this issue by October 19, 2018.

[16] In respect to the Gomes/Kelly action, 04-CV-279726, Ms Atas wishes to assess the lender’s costs, serve a request under Rule 15 of the Rules of Civil Procedure, and bring a motion to set aside the judgment. She shall make a Chavali request before taking any of these steps.

[17] There are several actions that appear to be collateral attacks on the judgment in Gomes/Kelly. These actions remain stayed pending an anticipated Chavali request from Ms Atas in the Gomes/Kelly action. If such a request has not been made by October 19, 2018, the defendants in these collateral proceedings may seek dismissal orders from the case management judge, on notice to Ms Atas.

[18] Likewise there appear to be several actions that appear to be collateral attacks on the judgments of Lederer and Aston JJ. in the St George and Wycliffe mortgage proceedings. Ms Atas has said that she wishes to have these judgments set aside. She shall make a Chavali request before bring any such motion. If such a request has not been made by November 16, 2018, the defendants in collateral proceedings may seek dismissal orders from the case management judge, on notice to Ms Atas.

[19] In respect to solicitors’ fees – David Sloan pursues a claim for fees of $8,035.37 and has provided written materials – which the court needs to review before deciding how to address the claim. Ms Atas’ position is that Mr Sloan’s claim for costs was resolved in a settlement dated March 26, 2008. I am unable to get to the bottom of this discrepancy today – late in the day. It will have to be addressed at the next case conference.

[20] I understand from Mr Caplan that Mr Brooker is also seeking unpaid legal fees – if this is the case then he needs to provide materials required by my Judgment before the next case management conference.

[21] The court will rule on the issue of costs of the s. 140 application shortly.

[22] These matters consumed an entire day of court time – and many of the items the parties wished to address were not reached. The balance of these items are adjourned to the next case conference in September 2018.

[23] 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.).

[24] The previous 23 paragraphs were decided and read out in court on June 26, 2018. What follows is in addition to the orders made during the case management conference.

[25] In reflecting on the conference after it was concluded, I realized that I may have missed one aspect of the current status of the 2018 Defamation Proceedings. I have granted a pretrial injunction in that case, but my recollection is that it was granted pending return of a motion for an interlocutory injunction. No steps have been scheduled for return of that motion, and the parties did not ask me to schedule any (Ms Atas did ask me to schedule a motion to vary or set aside the order that is in place, and I have made provision for a Chavali request for such a motion, but that is not the same thing as return of the motion for an interlocutory injunction). I direct the plaintiffs to provide me with the following information by June 30, 2018: (a) Confirmation of the history I have set out in this paragraph; (b) Their position on a schedule for return of the interlocutory injunction motion; (c) Any other points they have in respect to this issue. Ms Atas shall provide me with her responding submissions on this point by July 6, 2018.

D.L. Corbett J. Date: June 27, 2018