Court File and Parties

COURT FILE NO.: various DATE: 20181217 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Caplan et al. v. Nadire Atas and many other proceedings

COUNSEL: Nadire Atas self-represented

HEARD: December 17, 2018

BEFORE: D.L. Corbett J.

REASONS FOR CITING MS ATAS FOR CONTEMPT

[1] I have cited Ms Atas for contempt four times since October 19, 2018. These reasons explain my reasons for doing so.

[2] These are all citations for contempt “in the face of the court”. The four incidents of contempt are as follows:

(a) Ms Atas has repeatedly communicated with the court improperly, despite having been ordered not to do so in the judgment dated January 3, 2018, and despite having been directed repeatedly to cease her improper communications.

(b) Ms Atas was ordered to attend the case management conference before me on October 19, 2018 to address her apparently contemptuous behaviour regarding improper communications with the court. She refused to do so and the order was repeated to her that her attendance was mandatory. She did not attend. A bench warrant was issued, Ms Atas was arrested and then released on a promise to appear to answer for her defiance of the court’s order.

(c) Ms Atas has been warned, repeatedly, that the court’s decisions are not up for debate or comment once they have been made. She has consistently ignored this direction since the judgment of January 3, 2018, and has focused most of her attention to criticizing this court’s judgment and subsequent efforts at case management. On December 7, 2018, she was warned about this behaviour when she sarcastically criticized the court. Later in the case management conference she repeated this conduct, to voice her displeasure over a decision made by the court. The court cited her for contempt of court for this second sarcastic remark on December 7, 2018.

(d) In the judgment of January 3, 2018, Ms Atas’ fee waivers were set aside. The court ordered that she no longer be eligible for fee waivers, but carved out an exception: Ms Atas could obtain a fee waiver from the case management judge if (a) she satisfied the financial eligibility criteria for a fee waiver and (b) she established that it was in the interests of justice that she be granted a fee waiver. Ms Atas has never sought a fee waiver from the case management judge on the basis described above. She received two fee waivers without satisfying the basis described above – one for the filing fees for statements of defence and counterclaim in the Defamation Proceedings (granted by this court) and once to dispense with the fee to retrieve a file from storage (in connection with her proposed appeal of the s.140 judgment)(granted by Regional Senior Justice Morawetz in the absence of the case management judge over the summer holidays). In September 2018, concerned that Ms Atas seemed to believe that to get a fee waiver, all she had to do was ask for one, I issued an endorsement setting out the process she should follow in making such a request, and indicating that she should not expect to receive a fee waiver in future if she did not follow the process described in that endorsement. Ms Atas delivered a motion to set aside notings in default in the Defamation Proceedings; she delivered the motion materials to Judges Administration, rather than filing them at the civil motions office, thereby avoiding paying the regular fee to file a motion. The court directed that she was required to pay the fee for the motion and to provide proof of payment of that fee when her motion returned before the court on December 7th. Ms Atas then sent an “urgent” email requesting a fee waiver for the Defamation Proceedings. She did not provide any evidence or information in support of her request, other than to state that she is a defendant in the Defamation Proceedings. I denied Ms Atas’ request but did indicate that this denial was without prejudice to any request she might make for a fee waiver on proper materials. On December 7th Ms Atas stated that she had not paid the required fee, in breach of my direction that she pay it. She had not sought a fee waiver on proper materials. She advised that she would not be applying to this court for a fee waiver. Ms Atas must do one or the other – obtain a fee waiver from this court on proper materials or pay the fee. She indicated that she would do neither. I then cited her for contempt for failure to follow this court’s directions respecting fee waivers. I advised her that she could purge her contempt before sentencing, either by paying the fee as directed, or by obtaining a waiver of the fee on proper materials.

Discussion

[3] Ms Atas’ approach to the underlying litigation since the judgment of January 3, 2018 has been defiant. She has failed to follow most directions given by this court, and those directions she has followed have often been followed late, after repeated orders for compliance.

[4] Ms Atas has, however, been forthcoming about her objections to the judgment itself, the many bases on which she says it is wrong and which she intends to pursue on appeal. She has renewed her objections to this court continuing to case manage her proceedings, and to her previous objections she has added new allegations that the court is functus officio for all proceedings in which she is a party, is biased or has shown a reasonable apprehension of bias in respect to injunction proceedings against her, and has shown a reasonable apprehension of bias against her by words and demeanour during the ongoing case management process. Indeed, it would be fair to say that most of Ms Atas’ efforts during the past year have been engaged in challenging the court rather than defending the claims against her in the Defamation Proceedings or advancing her claims in the underlying proceedings. It appears that Ms Atas’ current primary antagonist, as far as Ms Atas is concerned, is this court and not her litigation adversaries.

[5] This, of course, makes case management more difficult. However the court does not become a litigation adversary simply because one of the parties decides to view the court that way. I have been very patient with Ms Atas – there have been many times over the past year that the court would have been justified in citing her for contempt – for breach of orders, disrespect towards the court and its process and deliberate defiance of the overall case management process.

[6] Ms Atas has been warned, several times, that the court will use its contempt powers to compel her obedience and/or proceed with the litigation on the basis of her non-compliance. [1] In one of her submissions Ms Atas responded to these warnings, at being “coerced” into various steps by the court. That is the nature of a court order: it is in its essence, coercive: orders are not suggestions, guidelines, frameworks, proposals or motions for discussion. An order is, just that, an order, and must be obeyed. [2]

[7] This court will be releasing a year-end case management order that summarizes events since the judgment of January 3, 2018, decides some issues that have been addressed by the parties but not yet decided by the court, and provides directions for all outstanding issues for the year to come. This contempt endorsement should be read in conjunction with that forthcoming endorsement to appreciate the context of defiance within which the instant incidents of contempt have arisen: the full record of events since January 3, 2018 more than justifies my general characterization of Ms Atas’ conduct as “defiant”.

(a) Improper Communications With the Court

[8] This problem predates the judgment of January 3, 2018. It first arose, in a material way, after Mr Napal left the case and Ms Atas began representing herself. I addressed the problem in the judgment of January 3, 2018 as follows:

There has been a history of inappropriate direct communications with the court which have, at times, devolved into argument about the directions given by the court, or advocacy respecting the parties’ positions. This is not to continue. The parties are not to communicate with the court other than:

(a) where expressly authorized to do so by the court;

(b) to request a case management conference or other appointment before the court; or

(c) with the consent of all affected parties. [3]

[9] This issue has been an ongoing problem, but non-compliance escalated over the course of the summer, while I was on vacation. Numerous correspondence was sent to the Regional Senior Justice and to my office, all in respect to issues that should have been raised at the prior case management conference (June 2018) or should have been left to the next case management conference (September 2018). I addressed this issue with Ms Atas in an endorsement dated August 28, 2018:

Over the course of the summer, Ms Atas has sent correspondence raising various matters of concern to her. As has been stated multiple times during these proceedings, these sorts of concerns should be raised at case management conferences. The last such conference was in June, and all parties, including Ms Atas, were advised that the next conference would not be before Labour Day.

Ms Atas may raise any of the matters she has identified in her summer correspondence at the next case management conference, which shall be on Friday September 14, 2018, at 9 am. Any party wishing to have an item placed on the agenda for that meeting shall so advise the court, in writing, with a copy to all other parties, by September 11, 2018, 5 pm. This includes Ms Atas. Any party who fails to advise the court of issues for the next case management conference should not expect that the court will add issues for discussion at the last minute.

In addition, as described in the judgment rendered in January 2018, Ms Atas may seek permission to bring proceedings or take a step in a proceeding by complying with the Chavali process stipulated in the judgment.

This court repeats that it will not respond to Ms Atas’ continued requests and demands brought outside a case management meeting or a Chavali request. For example, it is improper for Ms Atas to write repeatedly to the court requesting the court to recuse itself. If Ms Atas wishes to move for this relief then she shall request to do so pursuant to the Chavali process or she shall raise it at a case management meeting. [4]

[10] Ms Atas then sent improper correspondence to the regional Senior Justice seeking my removal as case management judge. This led to the following direction to her on August 31, 2018:

Ms Atas has written to the Regional Senior Justice asking that he (or I) remove me as case management judge for her matters. Ms Atas has previously made this request of the Regional Senior Justice and has the benefit of his response – which was to direct her back to me, the case management judge.

Ms Atas’ letter is improper. Ms Atas has been told, repeatedly, that this sort of correspondence is improper. A motion for recusal is brought, on a proper evidentiary foundation, on notice to all affected parties, to the judicial officer who is alleged to be biased or to have shown a reasonable apprehension of bias. Ms Atas must follow this procedure. In addition, she must comply with the requirements of the judgment from January 2018 in connection with this or any other step she proposes to take. And in addition, any process for a recusal motion will be undertaken through the case management process.

Finally, Ms Atas has been told, repeatedly, that it is improper for a litigant to write directly to the court seeking relief in a proceeding. The limits on proper communication with the court are set out, expressly, in the judgment rendered on the s.140 application. Ms Atas is to strictly follow those directions and not to correspond further with the court except in accordance with those directions. [5]

[11] Ms Atas’ flow of improper communications over the summer, continuing into September, was discussed at the case management conference of September 14, 2018. I reviewed the issue with her that day, reminded her of the directions on this issue in the judgment of January 3, 2018, and directed her to stop sending improper communications to the court. My endorsement of September 28, 2018, memorializes this direction as follows:

Ms Atas is reminded, again, that she is not to communicate with the court except in accordance with the directions stipulated in the Judgment at para. 358 of the Judgment. This direction does not preclude Ms Atas from making Chavali requests, which she may make of this court at any time without prior permission. [6]

[12] On October 9, 2018, having received further improper communications from Ms Atas, this court directed as follows:

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.

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. [7]

[13] On October 15, 2018, in response to further improper correspondence from Ms Atas, this court directed as follows:

As a preliminary matter, Ms Atas continues to write improper communications despite having been ordered to stop. Most recently, Ms Atas has written to criticize this court’s decisions, further alleging bias, and to say that she will not attend the case management conference on October 19, 2018.

Ms Atas is ordered to attend the case management conference on October 19, 2018. At this conference, she shall be required to explain her repeated defiance of this court’s orders respecting improper communications. [8]

Lest there be any ambiguity in this direction, I repeated it:

Ms Atas has written a steady stream of improper correspondence to this court. She has been ordered by the court to stop doing this. She has defied this order. In her latest email she writes that she will not be attending the case management conference on October 19, 2018.

Ms Atas is required to attend the case management conference on October 19th. I order that she do so. She may then address the question of whether, in future, her attendance at scheduled steps in the litigation should be mandatory, and the consequences for non-attendance. [9]

And again:

Ms Atas must attend this conference on October 19, 2018. [10]

[14] As is described in more detail below, Ms Atas did not attend on October 19, 2018, was arrested pursuant to a bench warrant, was remanded on her promise to appear to November XX, 2018. In my endorsement from October 19th I stated as follows:

… Ms Atas has written about having been coerced to do certain things, under threat of incarceration by this court. That is correct. Ms Atas has been told that she must comply with court orders or face incarceration. I wish to emphasize some of what I have told her previously on this topic.

It gives the court no joy to imprison a litigant for procedural defalcation, such as failing to attend court when required or sending inappropriate mail. The consequence seems disproportionate to the offence, and most judges like to think that if they explain the system and principles involved, almost any litigant can be brought to understand her legal duty to do as she has been ordered by a judge. However, when non-compliance reaches a state where it is evident that the litigant is being defiant, the defiance is the basis of the court’s response, not the immediate conduct that reflects the defiance. Ms Atas has become increasingly (and persistently) defiant of this court’s orders, and it is that conduct that she will have to address in her show-cause hearing as to why she should not be cited for contempt. [11]

[15] When the contempt matters returned before me for a show cause hearing, Ms Atas handed up an affidavit. In paragraph 1 of the affidavit, Ms Atas acknowledged she had breached the court’s orders by sending improper communications, apologized, and promised not to do it again.

[16] As I indicated to Ms Atas at the time, I accepted her acknowledgment of her improper conduct, her apology, and her promise not to repeat the behaviour. On this basis I found her in contempt of court for her repeated improper communications with the court, but advised her that I would impose a suspended sentence for the contempt, in recognition or her acknowledgment, apology and promise. I advised her that the sentence would be suspended for one year, and if there was no repetition during that year, then the matter would be closed. If the behaviour was repeated over the course of the next year, then in addition to being cited for that future conduct, she could be sentenced for the current conduct for which sentence has been suspended.

[17] Since these events there has been further improper correspondence from Ms Atas. It has not been of the same tone or frequency as the prior communications, but it has still been improper. While courts are not generally in the habit of repeating directions, I repeat them one more time. Ms Atas is not to communicate with the court except:

(a) where expressly authorized to do so by the court;

(b) to request a case management conference or other appointment before the court; or

(c) with the consent of all affected parties. [12]

To this list may be added that Ms Atas may make a Chavali request at any time – she has been expressly authorized to do this in the judgment dated January 3, 2018. Ms Atas is to observe these requirements strictly. The suspended sentence will be imposed as of today and will encompass all improper communications up to today.

(b) Failure to Attend Court on October 19, 2018

[18] It is, of course, generally not mandatory that parties attend case conferences. If they do not, the case may proceed in their absence, orders may be made against their interest, their claims or defences may be struck out, or some other remedy may be granted, but it is generally not a matter of contempt of court if a party decides not to participate in a step in a civil proceeding.

[19] But that does not mean that a party can decide to disregard a court order. Where a party is ordered to attend before a judge, the party must comply with the order.

[20] As quoted above, Ms Atas was ordered to attend the case management conference before me on October 19th. Her attendance was required to explain her repeated defiance of this court’s orders respecting improper communications. Ms Atas responded – by improper email – again stating that she would not attend the case management conference. The court caused an email to be sent to her confirming that her attendance was mandatory. She sent a further message saying that she would not come because she considered the court functus officio and without jurisdiction over her. Finally, in response to this refusal, the court caused an email to be sent to Ms Atas advising her that the court would issue a bench warrant for her arrest if she did not attend.

[21] At the show cause hearing, Ms Atas acknowledged receiving all the communications from the court except for the last one, warning her that she would be arrested and brought before the court if she failed to obey the court’s order to attend on October 19th. Ms Atas explained that this last email was sent late in the afternoon on October 18th, and because she does not have access to her email where she is staying, she did not receive that email prior to her arrest on October 19th; she did receive it afterwards. I accept Ms Atas’ evidence and conclude that she received the several directions ordering her to attend on October 19th, but not the final direction warning her of a bench warrant if she failed to comply. Ms Atas explained that, if she had known she might be arrested, she would have complied with the order.

[22] At the show cause hearing, Ms Atas did not acknowledge her breach of the court’s order. Rather, she defended her breach on the following bases:

(a) In her view the court is functus officio and without jurisdiction over her matters, and therefore she does not have to participate in case management directed by the court.

(b) Other parties have failed to respect orders of this court and have suffered no consequences, and so she was reasonable in concluding that there would be no consequences for her if she disobeyed.

(c) In a civil proceeding, the failure to follow a procedural direction produces, at most, procedural consequences. This court has previously told parties that if they fail to attend case management conferences, matters may proceed and decisions may be taken contrary to their interests, in their absence. She was prepared for that eventuality, which she would have addressed by way of appeal on the basis that this court is functus officio and without jurisdiction to proceed with the underlying litigation. [13]

[23] I address each of these arguments in turn, below. But there is an overarching point to note here, at the outset. The first two of these arguments are defiant of the court’s authority. Our society is governed by the Rule of Law. Everyone must obey a judge’s order. Ms Atas is not entitled to disregard the orders of this court, even if she thinks they are wrong, even if she thinks the court is biased, functus officio, or without jurisdiction. So long as the order is undisturbed by an appeal court of competent jurisdiction, it must be followed. This has been explained to Ms Atas many times. Indeed, the authority of court decisions is a unifying theme of the s.140 judgment. It is no defence for Ms Atas to say that she disagreed with the court’s decision, or thought, in her own mind, that the court lacked jurisdiction.

(a) The Functus Officio Argument

[24] Ms Atas argued this issue, on the merits, on December 7, 2018. I dismissed it, with reasons to follow. Those reasons will be set out in a separate endorsement, which will be released in due course. For present purposes, the following observations are sufficient to explain my decision on the contempt citation.

[25] The judgment of January 3, 2018 disposes of the s.140 application. It decides, on a final basis, that Ms Atas is a vexatious litigant. It sets out various consequential orders arising from that disposition. It also contains a comprehensive case management order to move forward with all of the underlying litigation, in light of the court’s decision on the s.140 application. And it contains two other aspects that are material to the current issue. First, I decided that I would continue in my role as case management judge to direct the underlying litigation. Second, I decided that case management should not be stayed pending any appeal Ms Atas might bring from the judgment (without prejudice, of course, to any stay order the Court of Appeal might see fit to grant). Thus, on January 3, 2018, Ms Atas understood that the court had decided to proceed with case management, and that I would be the case management judge.

[26] Ms Atas disagreed. She made that clear in submissions to this court. And she gave her disagreement as the reason she had failed to comply with the directions set out in the judgment of January 3, 2018. I addressed this issue in an endorsement of April 5, 2018, three months after the judgment was rendered:

In the judgment on the s.140 application, I provided detailed directions on materials to be provided by the parties in order to move forward with the underlying litigation. I also found that I would continue to act as case management judge for the underlying proceedings.

Ms Atas has sought orders that I recuse myself on multiple occasions and has brought that issue to the Canadian Judicial Council and the Toronto Regional Senior Justice. She has also advised that she has appealed “every aspect” of the judgment.

As Ms Atas has been advised by me, by the Canadian Judicial Council, and by the Toronto Regional Senior Justice, the question of my jurisdiction and of whether there is a basis on which I should recuse myself are exclusively matters for me to decide. Ms Atas’ remedy, if she disagrees with my decisions on these points (as evidently she does), is to appeal those decisions (which she says that she has done).

In the judgment I advised the parties that the judgment will not be stayed by a statement of intention by Ms Atas that she would appeal, or by her bringing an appeal. I declined to stay the judgment myself on the basis that the underlying litigation should move forward. Ms Atas’ sole recourse, if she disagrees with this decision to move forward in the face of her appeal, is to seek an order for a stay of the judgment from the Court of Appeal. I so directed in the judgment. Ms Atas has had since January 3, 2018 to obtain a stay order from the Court of Appeal and to my knowledge has not done so and so far as I can tell from the materials delivered to me, has not tried to do so.

In the face of this Court’s directions in the judgment, Ms Atas has delivered submissions predicated on the underlying judgment being wrong, this court lacking jurisdiction to proceed, and this Court being required to recuse itself from the underlying proceedings. In essence, her submissions are a long explanation as to why she is not complying with the judgment. These are arguments for the Court of Appeal, not for this Court.

Ms Atas has fresh arguments about jurisdiction and reasonable apprehension of bias. She raised those initially at the case conference to settle the formal judgment. Among other things, she claims that this court is functus officio in its case management role for the underlying litigation because it is functus officio in respect to the s.140 application. She argues that this Court lacks jurisdiction to supervise applications under s. 140(3) and pursuant to this Court’s Chevali order because she disagrees with the judgment. I directed Ms Atas that she could bring a motion respecting these points, if she wishes, and that her motion materials should be delivered by the same deadline that all her other materials were to be delivered, in accordance with the judgment. She has not done so.

In the absence of an order from the Court of Appeal staying the judgment, the judgment stands as an authoritative disposition of the matters it decides. Ms Atas must comply with the judgment, and this Court will proceed with the underlying litigation on the basis of Ms Atas’ response.

I will give Ms Atas a further chance to bring herself into compliance with the judgment. She will deliver all of the materials required of her by the judgment, in the form required in the judgment, by 12:00 noon, April 30, 2018. I shall set a case conference date in May 2018 to give directions about the future of the underlying litigation on the basis of the materials that have been received by that time. [14]

[27] Following this decision, Ms Atas finally brought a motion to the Court of Appeal seeking a stay of portions of the judgment of January 3, 2018. Trotter J.A. dismissed that motion on an interim basis; Rouleau J.A. dismissed the motion for an interlocutory stay pending the appeal. In his reasons dismissing the motion, Rouleau J.A. declined the stay because (among other things) a stay would interfere with my ability to case manage the underlying proceedings. When I pointed this out to Ms Atas, she commented that the decision was “only” from a single judge of the Court of Appeal, and was still subject to review by a panel of three judges, something she intimated she may seek.

[28] The argument on functus officio is wrong – the matters before this court now do not concern the s.140 application, but with case management of the underlying litigation. Of course, any judge case managing these many proceedings will be required, at times, to interpret and apply the judgment in the s.140 application. Ms Atas seemed to understand the essential necessity of the case management court doing these things. In response to questions she conceded that orders she impugns when made by me could have been made by some other judge of this court. This concession misconceives the principles behind functus officio. I cannot, of course, revisit my s.140 judgment and set it aside or vary it – I am finished with that application, and it is now the subject of an appeal Ms Atas wishes to pursue at the Court of Appeal. But that does not mean that all the underlying litigation must remain in suspended animation pending the appeal. Quite the contrary. The case management judge – whether it be me or some other judge – has the authority to proceed with case management, including, inevitably, the interpretation and application of the s.140 judgment. I am not under some personal disability from performing this task because I am the judge who decided the s.140 application.

[29] Finally, I note that there is some irony to this argument. The principles behind functus officio are rooted in respect for the finality of court orders – a principle that prohibits relitigation of decided points – and which also restrains the court from returning to the decision to change it after the matter has been concluded. The irony here is that Ms Atas’ record, as a vexatious litigant, reflects an inability to accept the finality principle. And yet here she would raise the principle of finality to create a level of paralysis for the underlying proceedings – but one which she argues applies only if I am the judge who is case managing those proceedings.

[30] As I said at the outset, there is no merit to this line of argument. But it does reflect defiance – both of this court and the Court of Appeal. I said in the judgment that I would continue as case management judge, and that case management would proceed in the face of an appeal. The Court of Appeal declined a stay. Ms Atas disagrees. And her argument is premised on her disagreement with my decision to proceed, and the Court of Appeal’s decision to refuse a stay.

(b) Other Parties Have Disobeyed

[31] There were two aspects to this argument. First, Ms Atas argued that Sutton Group and related parties have failed to attend case management conferences when ordered to do so, and they have faced no consequences. Second, Ms Atas argued that the plaintiffs in the Defamation Proceedings were ordered to take certain steps over the summer of 2018 (notably serve affidavits of documents), failed to do so, and suffered no consequences. From this, apparently, she inferred that the parties, including her, do not have to follow court orders. Alternatively, the argument seems to go, that breaching court orders will not result in a sanction. In the further alternative, she argues that it is unfair that she should be singled out for punishment when others have failed to comply without consequence.

[32] These arguments are without merit. They also misconstrue past events and are unfair to other parties.

(i) Sutton Group

[33] In respect to Sutton Group, some context is required. Ms Atas was apparently a real estate agent with the Sutton Group company for a time. At one point Peoples Trust served a garnishment notice on Sutton Group respecting real estate commissions it was allegedly holding which may have been payable to Ms Atas. Sutton Group apparently did not pay these funds to Peoples Trust, nor did they pay them to Ms Atas. So there is a claim for these monies, which are said to be about $40,000 (without interest).

[34] Ms Atas also claims that Sutton Group and its agents have sent inappropriate communications about her to others and retained and misused mail that was hers. Ms Atas’ claims are apparently against the company, some of its agents and principals, and against persons who have represented the company in its litigation with Ms Atas.

[35] There are several pieces of outstanding litigation related to these matters – I may not have captured all of the nuances of the claims – a brief description of them is set out in the s.140 judgment. [15] A brief review of the references in the s.140 judgment makes it clear that the claims involving Sutton Group are peripheral to the vast bulk of the litigation. Case management has been intensive and, based on what I have been advised during case management meetings, Sutton Group does not wish to spend money on lawyers for the case management process unless it becomes absolutely necessary – a business decision that seems most sensible in all the circumstances.

[36] That said, of course, Sutton Group cannot ignore court orders because it does not wish to be involved. However this court has never ordered Sutton Group to attend. The court has indicated that if Sutton Group does not attend, then matters may proceed in its absence and orders could be made against its interests. That has not come to pass because Ms Atas has done nothing to advance her claims against Sutton Group since the s.140 judgment was rendered.

[37] In one of her improper communications, Ms Atas made the following argument about why she should not have to attend before this court:

QUOTE THE EMAIL

[38] That email drew a speedy response from counsel for Sutton Group. He responded as follows:

QUOTE THE EMAIL [16]

[39] Counsel was correct: Sutton Group has not disobeyed a court order, and Sutton Group has never challenged the propriety of this court continuing to case mange the underlying proceedings. Ms Atasè argument to the contrary was a willful distortion.

(ii) Plaintiffs in the Defamation Proceedings

[40] In June 2018, I ordered the plaintiffs in the Defamation Proceedings to take several steps designed to bring those cases closer to trial, including serving affidavits of documents by August 31, 2018. The plaintiffs did not comply with this order.

[41] However, quite a bit of water flowed under the bridge during the summer of 2018. The plaintiffs apologized for not serving the affidavits of documents, but explained that they did not do so because they had decided to pursue a consolidation order for the proceedings, and that order would affect the way in which documentary production would take place.

[42] Ms Atas did not challenge this explanation or seek any remedy for the plaintiffs’ failure to serve their affidavits of documents as had been ordered. There were other factors relevant to assessing this failure to follow my order. Most significantly, Ms Atas had failed to file her statements of defence and counterclaim in Defamation Proceedings, or to make a Chavali request respecting her counterclaims in the Defamation Proceedings, all of which was to have been done by the end of July. This is not a small point: affidavits of documents are framed on the basis of the pleadings and are not due until pleadings are closed.

[43] In all of the circumstances I accepted the plaintiffs’ explanation for their failure to provide an affidavit of documents by the deadline I had stipulated.

[44] This is a far cry from Ms Atas’ defiance of the order to appear on October 19th. There was no good reason or even the pretext of a reason, for not complying. At the show cause hearing Ms Atas’ response was that she did not feel obliged to follow the court’s orders and did not think it fair if there would be consequences for failing to do as she had been ordered. It is hard to imagine a response that is more defiant on a substantive level.

[45] And there were other consequences that flowed from the breach. Ms Atas was noted in default for failing to file pleadings in accordance with this court’s several orders and deadlines. Subsequently she sought to set aside the defaults, this was granted, and in the result the Defamation Proceedings were delayed another month. The pleadings were to have been completed in July. It is now December. By a pattern of studied failure to do that which has been ordered, Ms Atas has caused delay and additional cost for the plaintiffs. [17]

[46] There is one final point to mention here. The parties have been in case management with me for almost a year since the judgment in the s.140 application. Case management of the s.140 application, itself, went on before me for over three years leading to the judgment of January 3, 2018. Case management has been intensive throughout most of this time. The judgment of January 3, 2018, itself, contains numerous case management directions. By my count, there are 20 endorsements since the judgment to November 27, 2018, and there will likely be three more by year’s end (including this one). It is inevitable that once in a while a party will fail to follow a direction, whether by accident, unanticipated circumstances, misunderstanding, or other reasons. This does not mean that orders are less obligatory because they arise in case management. But the court’s first response when a party does not comply with an order – especially a procedural order – is not usually a contempt citation. The court’s goal is to secure compliance and respect for court orders so that the process may unfold in a controlled, smooth fashion. Ms Atas’ opponents have an excellent record of compliance with the court’s orders. Almost without exception, they have done what the court has directed, on time, and in substantial compliance with the spirit and content of the direction.

[47] The same simply cannot be said for Ms Atas. The court has been patient with her non-compliance, in the hopes that she can be persuaded to follow the court’s orders. Ms Atas is a very experienced litigant, intelligent and good with words, and she well understands civil process. However she is self-represented and is entitled to the court’s assistance in navigating process. The court has bent over backwards to provide that assistance – explaining matters repeatedly, repeating orders and directions repeatedly. The court’s patience has not been rewarded; it is clear that Ms Atas is gaming the process, engaging the court as an adversary, pursuing and creating conflict over issues to impede the process of case management and the reasonable progress of the underlying litigation.

[48] It was in this context, of continuing non-compliance with the court’s directions concerning improper communication with the court, that the court required Ms Atas to attend before the court to explain her continuing defiance of the court’s orders about communication. Ms Atas’ response was to refuse to attend. She was ordered to attend and reiterated her refusal. And then she did not appear, without any good reason for her failure.

[49] The order was clear. The breach is clear. There is no valid explanation for this conduct. And so I cited Ms Atas for contempt of court for her failure to obey the court’s order to attend before me on October 19th to answer for her improper communications to the court.

(c) Failure to Treat the Court With Courtesy and Respect

[50] When the court makes a decision, it is not proper for counsel or a party to argue with the court about the decision, or to criticize the decision. The court will not engage in a debate about the merits of a decision, once it has been taken. The time for argument is before, not after, the decision is made.

[51] Ms Atas has difficulty with this proposition. If she disagrees with a decision, she voices her disagreement. She has been told that this is improper.

[52] One level of complexity arises on this issue. It is proper for a litigant to raise an issue of bias, reasonable apprehension of bias, or jurisdiction, and then to argue that issue, on a proper motion, on a proper record. Such an issue necessarily may involve criticism of the court, which is, no doubt, awkward for the judge and for the litigant, because normally that sort of criticism is properly left for argument before an appeal court.

[53] This point, too, has been thoroughly canvassed with Ms Atas, several times. A motion requesting that a judge recuse himself must be brought to the judge who is alleged to be biased or otherwise precluded from hearing the matter. This may seem strange, because it seemingly puts the judge in the position of passing judgment on his own conduct. But strange as it may seem, there are several very good reasons for it. First, the judge is presumed to be impartial, and the presumption is a very strong one. It is not displaced just because a litigant alleges otherwise. Second, the judge has been present throughout and is in the best position to report on events in his courtroom. Third, the judge’s subjective view of the issue does matter: if the judge concludes, on reviewing the decision, that he is not impartial or has conducted himself in a way that his impartiality may be in serious question, then the judge can recuse himself without further ado. [18] Fourth, in some recusal cases, a litigant is seriously impugning the integrity or conduct of the judge. The judge is not a party to the proceedings, and is unable to defend himself. The judge’s reasons on the recusal motion are the only way in which a reviewing court can understand the judge’s perspective on the issues. And fifth, an allegation of bias is easily made but seldom made out. If it was necessary to halt all proceedings while a ruling was obtained from another jurist on the recusal issue, a party could derail proceedings simply by making the allegation. Of course, from the position of this court and the parties to these proceedings, the many good reasons why the process must flow as it does are cemented by binding precedent from the Supreme Court of Canada: the recusal motion must be to the jurist who is said to have to recuse himself.

[54] Ms Atas understands these principles well – she has sought to have many jurists and decision-makers recuse themselves for bias. And she also understands that she may be critical of the court and its decisions in the context of a recusal motion. What she has done, since the judgment was released on January 3, 2018, is to aim a constant stream of criticism at this court – about its decisions, its treatment of her, its demeanour. But until September she took no steps to bring a recusal motion. She said repeatedly that she wished to do so, and she was given directions about how she could do so – but it was not until September that she took a step – an unnecessary step – by making a Chavali request to bring such a motion. The request was unnecessary because the court had previously provided her with a process to bring her recusal motion, without the need for a Chavali request or leave under s.140(3) of the Courts of Justice Act. [19] In September the court provided a fresh process by which she could pursue this issue. She declined to do so. Then the court provided a third process by which she could bring the issue to court – and she finally did so on December 7, 2018.

[55] The only place it was appropriate for Ms Atas to voice her criticisms of the court were (a) in case management conferences, to obtain directions for bringing the recusal motion; (b) in the motions materials for the recusal motion; and (c) during argument of the recusal motion. But that is not how Ms Atas has proceeded. There is seldom an appearance where these issues – and other criticisms Ms Atas has of the court and its decisions – are not raised.

[56] This is entirely improper. The court will not debate the merits of its past decisions with Ms Atas every time she comes to court. Ms Atas has been warned, repeatedly, that this conduct is improper. She has been warned, several times, that if she continues with this conduct, the court will cite her for contempt.

[57] On December 7th during a case management conference, Ms Atas responded to the court with sarcasm and was cautioned both times. She did it again and I cited her for contempt.

[58] The words used were relatively mild (words to the effect of “oh that’s really fair that you’ve struck my small claims court claim without prior notice to me that you would do that”). But enough is enough – the court does not have to tolerate insolence – harsh or mild – and Ms Atas had been warned repeatedly.

(d) Failure to Pay Court Fees or Obtain a Fee Waiver

[59] In the judgment of January 3, 2018, I address the issue of fee waivers as follows:

Ontario now waives court fees for indigent litigants. This laudable initiative is intended to facilitate access to justice for those for whom payment of court fees would be an exceptional burden. This program is not intended to facilitate abuse of the court system and opposite parties by enabling a vexatious litigant to bring multiple proceedings and motions at no cost to herself in court fees.

The Administration of Justice Act, which provides for fee waivers, does not contain a provision for cancellation of fee waivers. It cannot be that the Legislature intended that fee waivers be irrevocable, either where the factual basis for granting them has disappeared, or where a litigant abuses the process of the court with multiple vexatious proceedings and motions. This court may exercise its inherent jurisdiction in this situation, where there is an apparent gap in the legislation.

Ms Atas has conducted herself in such a way that she should not be permitted the benefit of fee waivers any more. She has put the court system, and thus the public purse, to considerable expense. Further, if there were some financial cost to her of bringing a proceeding or a step in a proceeding, she might exercise greater discretion in deciding which steps to take – just as is the case for other litigants. She is, apparently, impervious to adverse costs orders, and at the time being she is self-represented. Court fees and her own out-of-pocket expenses in duplicating materials and the like are the only financial disincentives for her to engage in frivolous litigation.

I would add one qualification to this decision. Ms Atas should be permitted to ask the case management judge to relieve her from paying particular court fees for particular steps in proceedings if she can establish, on proper evidence, that she meets the financial criteria for a fee waiver and that the interests of justice would be advanced by waiving those fees for her. [20]

[60] These findings are the basis on which the court ordered as follows:

Any fee waivers for the respondents are set aside. Ms Atas shall henceforth pay any applicable court fees for any litigation in which she is a party unless she obtains an order for a fee waiver from the case management judge. Ms Atas is ordered not to request or accept fee waivers unless and until Ms Atas has obtained an order for a fee waiver from the case management judge. [21]

[61] I trace the history of the fee waiver issue in prior endorsements. I do not repeat those endorsements here, and incorporate them in these reasons by reference. [22] In sum, Ms Atas has been told that she must apply to the case management judge for any fee waiver, and that she must do so on proper materials.

[62] Ms Atas argues that in so ordering, I have somehow modified the judgment dated January 3, 2018 (this is part of her argument that this court is changing the judgment, thus breaching the principle of functus officio). This, with respect, is sophistry. The requirements are set out in the judgment itself, as I have quoted above. Ms Atas’ argument seems to be that because the test I will apply in considering whether to grant Ms Atas a fee waiver is not included in the formal judgment, there is no test, and all she has to do to get a fee waiver is to ask for one.

[63] Further and in any event, my directions to Ms Atas on the fee waiver issue are orders. She is obliged to follow them unless they are stayed or set aside on appeal. Ms Atas has been clear that she disagrees with the orders and she has decided that she will not follow them.

[64] When Ms Atas delivered motion materials to Judges Administration, instead of to the civil motions office, she avoided paying a fee that is required when a motion is filed. I directed her to pay the fee. She did not do so.

[65] Ms Atas has had two choices in this matter. One is to apply to this court for a fee waiver, in accordance with the judgment and this court’s directions. The other is to pay the fee. As of December 7th, she had failed to do either. She insisted to this court that she would not apply for a fee waiver “to you”. I then cited her for contempt.

[66] Ordinarily if a party fails to file a fee for a motion, then the motion would not proceed. That was a tempting option. Ms Atas had been noted in default in the Defamation Proceedings and warned that she should make haste to bring any motion to set aside the noting in default. Further delay in bringing the motion would provide a stronger basis for refusing to set aside the notings in default. But those potential consequences carried with them the possibility of injustice: the claims against Ms Atas in the Defamation Proceedings are very serious. And the consequences of a finding of liability could be far-reaching for Ms Atas. Ms Atas’ repeated procedural failures are also serious, and are prejudicing her opponents. But the pattern of procedural default must be extreme to justify granting sweeping injunctive relief without hearing Ms Atas’ side of the case.

[67] Balancing all of these factors together, I concluded that it was better to proceed with the motion to set aside the notings in default on the merits, and to address the fee issue by use of the contempt power. This is not a situation where an impecunious litigant is unable to pay a court fee in order to access the justice system. Ms Atas has not provided evidence to address her financial eligibility for a fee waiver. And the motion is a consequence of Ms Atas’ defiance of court orders leading to the notings in default: if Ms Atas had acted as a reasonable litigant, she would not have had to bring the motion.

[68] I concluded that there was the requisite element of defiance in Ms Atas’ failure to pay the fee or alternatively seek a waiver in accordance with the court’s directions. I cited her for contempt and put the matter over to December 17th. I advised her that she could purge her contempt by paying the fee by the 17th of December, or obtaining a fee waiver. She repeated that she would not apply for the waiver “to you”.

[69] All four citations for contempt are to be spoken to for purposes of sentencing on December 17th, although, as stated above, I have already decided to suspend sentence for the contemptuous improper communications with the court. I will now hear Ms Atas on the issue of sentencing for the other incidents of contempt of court. I will then decide the appropriate penalty, incorporate that decision into these reasons, and then release the written reasons later today.

Sentence

[70] There are four findings of contempt in the face of the court.

[71] For the first finding of contempt, for breaching the court’s orders respecting improper communications with the court, I impose a suspended sentence for one year. The effective date of the sentence is today, December 17, 2018. If there are no further improper communications with the court in the next year, then the suspended sentence will lapse. Ms Atas should understand two things about this suspended sentence:

(a) If she does engage in further improper communications with the court, in addition to any sanction that may be imposed for those communications, the court could also impose a penalty for the communications that are the subject matter before the court today.

(b) If the twelve months passes without further improper communications, that will not give Ms Atas license to renew her contemptuous behavior after that time.

[72] For the fourth finding of contempt, for failing to pay a required filing fee or to obtain a fee waiver for that fee, I am satisfied that Ms Atas has purged her contempt. The finding of contempt was made on December 7, 2018. I am satisfied that Ms Atas attempted to pay the fee on December 12th, but was unable to do so because the civil office did not have the required paperwork before it in order to process the fee payment. That problem was resolved through my intercession today – I directed the office to accept the fee for a motion that was argued before me on December 7th. The office accepted Ms Atas’ payment, and Ms Atas provided me with the receipt for her payment – after a brief adjournment to enable her to go across the street and make the payment.

[73] In light of the fact that Ms Atas has purged this contempt, I sentence her to an absolute discharge for this incident of contempt of court.

[74] For the third finding of contempt, as I indicated in my reasons for the finding, the contemptuous comments were relatively minor. They would not ordinarily attract more than a rebuke from a presiding judge. The goal of the citation for contempt is to secure proper conduct by Ms Atas. I consider that the point has been made in respect to this incident: the court will not accept insolence from a litigant, however that insolence may be expressed. I impose a conditional sentence of six months for this incident of contempt, the sole condition being that Ms Atas refrain from insolence to the court, orally or in writing.

[75] This brings me to the second finding of contempt – the failure to attend court on October 19th despite direct orders that she do so. Ms Atas has, today, apologized for this conduct. She says that she has learned her lesson and the behaviour will not be repeated. She notes that she has attended every other case management conference, and there have been many of these.

[76] The issue here is not attendance. It is a question of compliance with direct unambiguous court orders. Ms Atas’ contrition for this conduct has surfaced at sentencing. At the show cause hearing, in her affidavit, she argued that she honestly believed she did not have to attend, notwithstanding the clear language of the court’s orders. This position was repeated in her written materials today.

[77] The dominant sentencing principle here is specific deterrence – to coerce Ms Atas to comply in future with court orders. Incarceration is a remedy of last resort in these cases, and is to be used sparingly. But in my view, a short, sharp jail sentence is required here for the purposes of specific deterrence. Ms Atas is not amenable to a fine – she owes thousands of dollars in costs awards and should be using any available funds she has to make some payment on account of those awards. Imposing a fine would reduce her ability to meet those obligations and create an impediment to the efforts of her opponents to collect on their costs awards.

[78] The sentence this court imposes is designed to make it clear to Ms Atas that there are real consequences for breaching the court’s orders. It is also designed in the hopes that a short, sharp sentence really will be sufficient to secure future compliance. Ms Atas should understand that if there is further contemptuous breaches of the court’s orders, the resulting sentence could well be longer.

[79] I fix the appropriate “short, sharp” jail sentence in this case at 6 days. I give Ms Atas one day’s credit for October 19th, the day she spent in custody for several hours as a result of the bench warrant I issued to compel her before me. Thus the net sentence shall be five days imprisonment, without remission.

Request to Stay the Sentence

[80] Ms Atas asked that this court stay its sentence pending the appeal she intends to bring. I advised Ms Atas when she made this request that it was not the practice of the trial court to stay sentences pending appeal – that was relief she would have to seek from the appellate court. She noted that, as a self-represented litigant, she would be in no position to do this if she was incarcerated immediately after sentence was pronounced.

[81] I think Ms Atas has a point on this issue. If Ms Atas was represented by counsel, her lawyer could be in front of the Court of Appeal shortly after she was taken into custody. The sentence is short enough that a delay because of incarceration could render the issue largely moot by the time she is able to get a stay motion before the Court of Appeal.

[82] I will not stay the sentence pending any appeal that may be brought. However, I will suspend the operation of the sentence until 10 am, January 14, 2019. Ms Atas shall appear before me on that day at that time. If no stay has been granted by the Court of appeal, then she shall be committed to jail in accordance with this decision.

Chavali Request for Appeal

[83] I have advised Ms Atas that I have been unable to locate precedent on the question of whether leave under s.140(3) of the Courts of Justice Act, and Chavali permission, is required to appeal my contempt decision. Should it emerge that this is a requirement, Ms Atas may make her requests through my office and I will do what I reasonably can to expedite that process.

D.L. Corbett J. Date: December 17, 2018

[1] Peoples Trust v. Atas, 2018 ONSC 2173, para. 10. [2] Peoples Trust v. Atas, 2018 ONSC 2173, para. 10. [3] Peoples Trust v. Atas, 2018 ONSC 58, para. 358. [4] Peoples Trust v. Atas, 2018 ONSC 7177, paras. 1-4. [5] Peoples Trust v. Atas, 2018 ONSC 7177, paras. 1-3. [6] Peoples Trust v. Atas, 2018 ONSC 5631, para. 70. [7] Peoples Trust v. Atas, 2018 ONSC 5965, paras. 1-2. [8] Peoples Trust v. Atas, 2018 ONSC 6134, paras. 2-3. [9] Peoples Trust v. Atas, 2018 ONSC 6134, paras. 26-27. [10] Peoples Trust v. Atas, 2018 ONSC 6134, para. 31. [11] Peoples Trust v. Atas, 2018 ONSC 6255, paras. 18-19. [12] Peoples Trust v. Atas, 2018 ONSC 58, para. 358. [13] This third ground is a paraphrase to put in better legal form the argument that was made to this effect. [14] Peoples Trust v. Atas, 2018 ONSC 2173, paras. 1-8. [15] Peoples Trust v. Atas, 2018 ONSC 58, paras. 92, 217(f), 342(12), and n.217. [16] This exchange reflects one of the reasons improper communication with the court is forbidden. There is a proper way in which to put evidence and argument before the court – in motion materials properly served on affected parties – in pleadings served on opponents – at scheduled case management conferences on notice to affected parties. Unbridled email correspondence – on notice to other parties – almost inevitably will provoke a response from the other side, and matters can quickly devolve into a war of words without the structure of a motion or trial, without proper evidence. I understand why counsel responded as he did, and really cannot fault him in view of the substance of Ms Atas’ unfounded allegations about his clients’ conduct and motivations – the email should not have been required because Ms Atas’ email should never have been sent. [17] A fourth action has been started alleging internet defamation against Ms Atas. Plaintiffs’ counsel intends to proceed with all four actions in tandem to a motion for summary judgment – all of which may have the effect that the delays caused by Ms Atas’ failure to file pleadings as ordered may end up causing no practical additional delay, since the deadline for a defence in the new proceedings has not yet passed. In my view this may mean that practical prejudice of Ms Atas’ conduct is diminished – but the fact remains that the plaintiffs have been put to cost and delay for no good reason. [18] This happened to me once, as a judge, when a conflict of interest arose unexpectedly mid-trial. I recused myself, on my own motion, with counsel for all parties agreeing that I should do so: see R. v. Davis et al., 2012 ONSC 5526. [19] Peoples Trust v. Atas, 2018 ONSC 2173, para. 6. [20] Peoples Trust v. Atas, 2018 ONSC 58, paras. 322-325 (footnotes omitted). [21] Peoples Trust v. Atas, 2018 ONSC 58, para. 357 (9). [22] Peoples Trust v. Atas, 2018 ONSC 5631, paras. 41-50; Caplan v. Atas, 2018 ONSC 7093, seriatim.