Court File and Parties

COURT FILE NO.: various DATE: 20181009 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Caplan et al. v. Nadire Atas

COUNSEL: Nadire Atas self-represented

HEARD: October 9, 2018

BEFORE: D.L. Corbett J. (In Writing)

CASE MANAGEMENT ENDORSEMENT

[1] Ms Atas continues to write to this court and now also to the Regional Senior Justice, respecting the recusal issues she wishes to pursue. These communications are improper and are continuation of conduct that she has been directed to halt. This court has already decided the process to be followed for the recusal issues and will not respond further to improper correspondence from Ms Atas on the topic prior to considering the recusal issue at the return of the motion for an interlocutory injunction.

[2] There are several approaching deadlines in the cases under case management. Ms Atas would be well advised to direct her efforts to meeting these deadlines rather than spending her time crafting further improper communications that do not advance the litigation.

[3] By way of summary, the current deadlines are as follows:

October 12, 2018 Ms Atas is to provide a copy of any responding costs submissions that she provided in response to the costs submissions delivered by the applicants in the s.140 application (September 28, 2018, para. 61) [1]. As noted previously, this court had received Ms Atas’ claim for costs of certain steps in predicate proceedings. The court has since received from Ms Atas a copy of her own claim for costs in the s.140 application (a bill of costs), and a set of submissions that do not appear to relate to the applicants’ claimed costs and bills of costs. These latter two documents are dated in March, 2018.

October 15, 2018 Ms Atas may provide information directed by the court respecting the HRTO finding that she apparently breached this court’s order by failing to file a copy of this court’s judgment with the HRTO. It is not mandatory that Ms Atas provide anything further to the court; this is her deadline if she wishes to provide anything further (September 28, 2018, para. 13(a)).

October 19, 2018 Ms Atas may provide responding submissions to Peoples Trust’s summary of outstanding costs awards in its favour, totaling some $67,000, plus interest, plus Peoples Trust’s request that it be permitted to use the funds held in trust to secure mortgage enforcement costs to pay these outstanding costs awards (September 28, 2018, para. 64).

October 19, 2018 Ms Atas is to provide her detailed response to Peoples Trust’s claimed mortgage enforcement costs (June 27, 2018, para. 14), together with Ms Atas’ legal argument respecting Peoples Trust’s position that its claim for mortgage enforcement costs did not merge in the judgments in the mortgage actions (June 27, 2018, para. 15). Peoples Trust’s particulars of its claim for mortgage enforcement costs were largely provided many years ago, and were updated and filed with the court shortly after the January 3, 2018 judgment in the s.140 application. Peoples Trust’s legal argument on the merger issue was provided, as ordered by the court, by September 21, 2018.

October 19, 2018 Parties to the Defamation Actions are to attend a one hour case management conference before me, at 9 am, to settle the form of the order that the three actions be tried before the same trial judge, together, one after the other, or as the trial judge directs (September 28, 2018, paras. 31-32), and to set the schedule for affidavits of documents and examinations for discovery (September 28, 2018, para. 32). Ms Atas was ordered to file her statement of defence (and counterclaims, if she asserted any) by July 20, 2018 (June 27, 2018, paras. 9, 11(a)). She served them but did not file them because she felt she should not have to pay a $20 fee to commission her affidavit of service. Ms Atas was then to make a Chavali request for any counterclaim she seeks to assert by September 30, 2018 (June 27, 2018, para. 11(d)). Ms Atas has not done this. Ms Atas was directed on September 14, 2018, to pay any fees necessary to swear her affidavit of service and file her pleadings “forthwith” (September 28, 2018, para. 46). I have no information that Ms Atas has done this. The fate of Ms Atas’ defence and her intended counterclaims will depend in part on whether and when she brings herself into compliance with previous orders respecting these issues, all of which will have to be addressed at the case management conference of October 19, 2018. If Ms Atas has not filed her statements of defence by the time of the case management conference, the plaintiffs may request that their claims continue by way of default proceedings. If Ms Atas has filed her statements of defence, and if they include a counterclaim, and if Ms Atas has not made a Chavali request in respect to the counterclaim, then the plaintiffs may ask the court to strike the counterclaims so that the main claims may move forward. The court’s scheduling directions in June 2018 were intended to facilitate putting a schedule in place in September 2018. That date was moved to October 2018 because of Ms Atas’ failure to comply with the June case management order; she should not expect a further scheduling delay by virtue of continuing non-compliance with this court’s directions.

October 29, 2018 Other parties may provide additional information respecting the HRTO finding that Ms Atas apparently breached this court’s order by failing to file a copy of this court’s judgment with the HRTO. It is not mandatory that these parties provide anything to the court; this is the deadline if they wish to do so (September 28, 2018, para. 13(b)).

November 16, 2018 Ms Atas is to file any responding materials on which she relies on the motion for an interlocutory injunction (September 28, 2018, para. 29). Ms Atas now indicates that she does not intend to file materials. She is not required to do so – it is up to her whether she does so or not. The court will decide the interlocutory injunction on the basis of whatever record is filed – by both sides – and if Ms Atas decides to file nothing, she may still attend the motion and present arguments on the basis of the record that has been filed by the moving parties. This court has decided that Ms Atas may advance all the recusal issues she has raised with the court – in a Chavali request to bring a motion and in a long line of correspondence. Ms Atas is indicating that she does not wish to do this. It is up to her – if she does not wish to file any materials she is not required to do so. The issue having been raised with the court, and the court having decided to deal with it in the course of the interlocutory injunction motion, the court will address the concerns raised by Ms Atas on the strength of the record before the court. Ms Atas is advised that this is her opportunity to pursue these issues. If she decides not to do so, she may be foreclosed from raising these issues again in future.

November 30, 2018 The moving parties on the interlocutory injunction may deliver supplementary and reply materials (September 28, 2018, para. 29).

November 30, 2018 Ms Atas has taken the position that she wishes to re-open predicate litigation that, to this point, has been decided by final judgments in the Superior Courts, and for which appeals to the Court of Appeal have been dismissed. Ms Atas has had since the judgment on January 3, 2018 to make Chavali requests to take these steps she has said she has wanted to take for many years. No Chavali requests have been forthcoming. The court has held back from taking action on litigation that, arguably, is follow-on litigation from these earlier cases, or collateral attacks on the decisions in those cases, pending Chavali requests to re-open the earlier cases. Ms Atas is to provide any Chavali requests for the earlier litigation by November 30, 2018, failing which the court will proceed to address other litigation on the basis that the earlier decisions are authoritative. (June 27, 2018, paras. 17 and 18 imposed deadlines of October 19, 2018 for a Chavali request for the GomesKelly Mortgage Action and November 16, 2018 for the Peoples Trust Mortgage Actions. September 28, 2018, para. 67, directs that this court will proceed to address the status of outstanding litigation on the basis that these past decisions are authoritative if no Chavali requests to reopen the earlier litigation have been made by that time).

December 7, 2018 The parties shall attend a case management meeting at 9 am to address scheduling of all steps necessary to complete the motion for an interlocutory injunction (September 28, 2018, para. 29).

[4] There are other steps that the court has directed that bear mention here:

(i) Ms Atas has indicated that she wishes to pursue claims against Sutton Group and related parties. She has been given directions about what she needs to do to get those matters moving: she was to make a Chavali request by July 31, 2018 (June 27, 2018, para. 5), and she has been told the process by which she may confirm the status of these cases and bring the small claims court actions forward to this court (September 28, 2018, para. 58). She has not been given a deadline within which to take those latter steps, and for now, that is up to her – whether and when she takes those steps. That said, there are other persons affected by this outstanding litigation, and if Ms Atas does not take the directed steps then these other parties may do them and then seek directions from the court at a future case management meeting for the future of these cases.

(ii) I directed Ms Atas to make any Chavali requests she has respecting her claims against the Chahals by July 31, 2018 (June 27, 2018, para. 4). She did not do so. I directed that the Chahals could seek dismissal of these claims “at the next case management conference”. That conference was on September 14, 2018. I declined to address the future of these claims at that time because the storage locker containing Ms Atas’ possessions had not been transferred to her and I considered that Mr Chahal had acted unreasonably to the effect of prolonging the transfer issue. I directed that the Chahals could raise the issue again, at the next case management conference (December 7, 2018 – the earlier case management conference is for a narrow purpose and will not consider matters other than scheduling of the Defamation Actions and related issues). Ms Atas has still not made a Chavali request concerning her claims against the Chahals. Though she has missed her deadline, I will consider any request she does make before the December 7th case management conference.

(iii) It appears that the only claim for professional fees that is still being pursued against Ms Atas is by David Sloan and his firm. Mr Sloan has been directed to deliver a motion for summary judgment on that issue, and Ms Atas has been given a deadline of 45 days to respond to materials on behalf of Mr Sloan (June 27, 2018, paras. 19 and 20, September 28, 2018, para. 62).

(iv) I gave numerous directions in my judgment of January 3, 2018 (2018 ONSC 58) to facilitate orderly case management moving forward. Ms Atas is still required to comply with the terms of that judgment – even though deadlines have now all passed – and continuing non-compliance may be a factor in how the court deals with issues in respect to which there has not been compliance.

[5] These deadlines were decided at case management conferences on June 26, 2018 and September 14, 2018, and were memorialized in case management endorsements dated June 27, 2018 and September 28, 2018. The deadlines set out in this endorsement summarize past scheduling directions are intended to assist the parties, particularly Ms Atas, in understanding the schedule moving forward.

D.L. Corbett J. Date: October 9, 2018

[1] Parenthetical dates refer to the orders in which these deadlines were directed: June 27, 2018 (2018 ONSC 4059), which sets out the decisions given on June 26, 2018, and September 28, 2019 (2018 ONSC 5631) which sets out decision given on September 14, 2018.