Court File and Parties

Court File No.: 18-CV-594948 DATE: 20181031 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dr. Joseph Caplan, Derek Luth, Yahel Nov, Jonathan Michael Stancer, Charles Adam Stancer, Raymond Stancer, Tom Pires and Nella Pires, Plaintiffs AND: Nadire Atas, Defendant AND RE: Intended motion to set aside noting in default

BEFORE: Corbett J.

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

HEARD: October 15, 2018

Case Management Endorsement

[1] By email dated October 30, 2018, Ms Atas writes to the court seeking an extension of the time for her to bring a motion to set aside the noting in default in the Defamation Proceedings. For the reasons that follow, this request is denied.

(i) Ms Atas Not Precluded From Moving After November 2nd

[2] In paragraph 12 of my endorsement dated October 19, 2018, I directed as follows:

Ms Atas may bring a motion to set aside the noting in default, returnable before me on November 2, 2018 at 9 am. If she decides to do this, she shall serve her motion materials for this motion by no later than 3 pm, October 31, 2018. And if she decides to do this, she shall so advise my office by 3 pm on October 31, 2019, so that a courtroom and staff may be arranged for an appearance. If Ms Atas does not bring this motion within this time period, she should understand that this may prejudice any subsequent motion she brings to set aside the noting in default or any default judgment that may hereafter be granted.

Ms Atas is not precluded from bringing a motion to set aside the noting in default after November 2, 2018. She can seek to bring such a motion at any time, subject to the usual requirements of raising the issue at a case management conference and obtaining this court’s scheduling directions. However, the plaintiffs may move for default judgment in the meantime, and Ms Atas’ continuing delay in seeking to set aside the default “may prejudice any subsequent motion [Ms Atas] brings to set aside the noting in default or any default judgment that may be granted hereafter.”

(ii) The Appeal Deadline Is No Basis For Further Delay in this Court

[3] On October 24, 2018, Ms Atas appeared before Feldman J.A., seeking an order setting aside a registrar’s order dismissing her appeal in the Court of Appeal. Feldman J.A. granted the order requested by Ms Atas, and gave Ms Atas until November 2, 2018 to perfect her appeal.

[4] In her request to this court for an extension, Ms Atas writes as follows:

I ask for the extension because my appeal of the s.140 judgment was dismissed as I was unable to perfect on September 14, 2018. I brought a motion to set aside and I have been given until November 2, 2018 to perfect my appeal (date chosen by the court). Although my appeal is ready, I have had to change and modify it and incorporate costs order that Justice Corbett made on October 19, 2018. I would prefer not to have any distractions or obligations until after November 2, 2018.

[5] Ms Atas was aware of the deadline in this court of November 2, 2018 when she appeared before Feldman J.A. on October 24, 2018. She was also aware of this court’s costs disposition in the s.140 application when she appeared before Feldman J.A.

[6] Feldman J.A.’s endorsement reads as follows:

Ms Atas moves to set aside the dismissal of her appeal by the registrar for failure to perfect in accordance with the order of Trotter J.A. on September 14, 2018. Although Ms Atas has not explained why she waited until the last day of the extension to try to perfect and was only then faced with deficiencies in her material which could not be accepted by the court, as she now advises that the material is now all ready to be filed to perfect, I will grant the order as follows:

• The appellant shall perfect by November 2, 2018.
• The dismissal will be set aside if the material to perfect is compliant with the requirements already noted and filed by that date.
• If the appellant seeks a fee waiver she shall do so forthwith in order to receive the decision in time to perfect by November 2, 2018.

Costs of today fixed at $2,000 payable to the respondent in the cause of the appeal.

I have previously told Ms Atas that she cannot play one level of court off against another. If her obligations to this court meant that a filing date of November 2nd was not reasonable for her, then it was incumbent on her to raise that with Feldman J.A. on October 24th. If she had more work to do on her appeal materials, then she should not have told Feldman J.A. “that the material is now all ready to be filed to perfect.”

Prejudice to Plaintiffs of Delay

[7] The plaintiffs in the Defamation Proceedings have been prejudiced by continuing delays as a result of Ms Atas failing to follow directions from this court. The pleadings were to have been filed back in July. The plaintiffs should be permitted to proceed now, and Ms Atas can explain her delay if and when she brings a motion to set aside the noting in default.

[8] The request to changes the dates specified in paragraph 12 of my endorsement of October 19, 2018 is denied.

D.L. Corbett J. Date: October 31, 2018