Court File and Parties

Court File No.: 18-CV-574948 Date: 2018-07-04 Superior Court of Justice - Ontario

Re: Caplan v. Atas – Motion for Interlocutory Injunction

Before: D.L. Corbett J.

Counsel: Gary M. Caplan, for the Plaintiffs Nadire Atas, self-represented

Case Management Endorsement

[1] In my case management endorsement from June 27, 2018, I directed as follows:

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.

[2] The plaintiffs did not provide the requested information by June 30th. Ms Atas then wrote on July 3, 2018, requesting that the interim injunction be set aside. The plaintiffs then provided a response dated July 4, 2018. In that response, the plaintiffs advised that counsel had been at a medical appointment on June 28th, and that counsel’s office closed early on June 29, 2018 (the Friday of the Canada Day long weekend). Thus my direction did not come to counsel’s attention until Tuesday July 3rd. Counsel asked that the deadline be extended to July 4th in light of these circumstances.

[3] The extension is granted. I would not ordinarily give a party 48 hours’ notice of a deadline; I had imposed the short deadline hoping that the process of addressing this missed item could be expedited. I accept counsel’s explanation as to why the point did not come to his attention until after the long weekend, and I accept that counsel has taken prompt steps to address the issue.

[4] The interim order continues to be in place as of now. However, it was made on the basis that it would remain in place until the motion for an interlocutory injunction could be returned before the court and decided. The plaintiffs advise that they have served all the materials on which they rely for the interlocutory injunction, and that they are ready to schedule argument at the court’s convenience.

[5] Ms Atas has not served any responding materials to the injunction motion. Nor has she cross-examined the plaintiffs on their evidence for the injunction motion. If Ms Atas wishes to take any of these steps (or any other steps prior to argument of the interlocutory injunction) she shall advise (a) what steps she wishes to take; and (b) her proposed timetable.

[6] Of course, I would not require Ms Atas to provide this information by July 6th, the deadline set out in my endorsement of June 27th. I will not impose any particular deadline for her response. This court will not be available to address these issues after July 11th until late in July. If Ms Atas provides her response by 5:00 pm, July 10, 2018, this court will try to provide the parties with a direction by July 12, 2018, setting out all steps required to bring the injunction motion back before the court for argument on the merits. If Ms Atas’ response is not received until after July 10th, then the court’s direction will not likely be forthcoming before the end of July.

[7] In her letter, Ms Atas argues that the interim injunction was issued “without evidence and only on counsel’s statements”. This is not true. The plaintiffs have filed extensive evidence on the motion. Ms Atas also argues that the plaintiffs failed to ask this court to schedule a motion for an interlocutory injunction and instead have said that they wish to set the matter down for trial. It might be more practical to go straight to trial, rather than through the process of delivery of responding evidence, cross-examinations, and argument on the merits of the interlocutory motion, but I would not deprive Ms Atas of the ability to challenge the injunction motion on an interlocutory motion; that is the basis on which the interim order was granted. And while it is true that the plaintiffs neglected to ask this court to schedule the interlocutory injunction motion, so too did Ms Atas. Moreover, she has not, as yet, served any responding materials, and thus can hardly complain over delay in return of the motion. Ms Atas’ request that I summarily set aside the interim injunction motion is unreasonable and is dismissed.

[8] In her letter, Ms Atas challenges the application of the s.140 order made against her in respect to her defence of legal proceedings brought against her. She has raised this issue several times since judgment was given in the s.140 application. As I have told her several times, the judgment stands and has not been stayed pending her appeal to the Court of Appeal. Ms Atas’ arguments that aspects of the judgment are wrong and ought not to be followed or applied are misconceived in this court: the judgment is final and authoritative and not open to debate in this court unless and until the judgment is varied or set aside on appeal.

[9] This is not the time to address the practical application of the s.140 order to activities undertaken by Ms Atas in her defence of claims against her. The injunction motion is the plaintiffs’ motion, and it has not been suggested that Ms Atas needs to bring a Chavali request or an application under s.140(3) of the Courts of Justice Act in order to defend the injunction motion. There may come a time when this court needs to address the practical effect of the s.140 order on Ms Atas’ defence of legal proceedings, but until the issue needs to be addressed, I decline to say anything further about it. For present purposes, the powers of the court to case manage the injunction proceedings will suffice to permit the parties to litigate that issue to a decision on the merits in a reasonable and orderly process.

D.L. Corbett J. Date: July 4, 2018