Court File and Parties

Court File No.: various Date: 2019-04-10 Superior Court of Justice - Ontario

Re: Peoples Trust v. Nadire Atas et al.

Counsel: Gary Caplan – Plaintiffs Nadire Atas self-represented

Heard: In Chambers, in writing

Before: D.L. Corbett J.

Costs Endorsement

[1] I have received Ms Atas’ costs submissions relating to the urgent case management conference held on March 26, 2019 to consider a request by Ms Atas that the court sign two further orders in the s.140 application. Both orders merged in the judgment signed in February 2018. One had been raised at the time the judgment was settled.

[2] Ms Atas explains her attempt to relitigate an issue that had been decided already as follows:

I had simply forgotten that I had properly asked for these orders to be in the formal Judgment back in February 2018 and I had also forgotten that Justice Corbett had denied it.

Gary Caplan obviously also did not remember. If he had he would have spoken up and he did not.

[3] This was Ms Atas’ request for an order. In argument she claimed that she had attempted to raise this issue with me at the time the judgment was settled, but that I refused to permit her to make submissions and I refused to deal with the issue. My endorsement from that day makes it clear that these statements are simply false: I considered Ms Atas’ arguments and declined to include a term of the judgment reflecting my interlocutory evidentiary ruling.

[4] It is one thing to forget. It is another thing to make up a false narrative of what happened.

[5] I do not expect Ms Atas to recall every step that has taken place in these matters. As she points out, Mr Caplan apparently did not recall, and I did not recall myself until I checked my prior endorsement. But as the requesting party, it was for Ms Atas to look into her own request to ensure that it was grounded properly. Not only did Ms Atas fail to do this, she made false assertions about what took place without (a) having any memory of the event; and (b) without preparation sufficient to put her in a position to make the claim that she did. If Ms Atas had undertaken even a modicum of preparation, she would have looked at the endorsement before asking the court to issue an order.

[6] Costs are an indemnity not a punishment. Ms Atas, in insisting that the issue of the two orders be addressed before the next regular case management conference, put Mr Caplan’s clients to the expense of an extra attendance before me. I see no reason in principle why Ms Atas should not indemnify Mr Caplan’s clients for having put them to this expense.

[7] Ms Atas argues that she did not cause this expense:

I asked for telephone conference as I believed this was a simple matter. I did not ask for an attendance nor did I believe that an attendance was required.

Once opposing parties expressed their opposition, it was not a “simple matter”. For reasons I expressed when I decided to schedule the case management conference, I would not conduct any steps in these matters by teleconference in the absence of true exigency. Ms Atas insisted that these issues be addressed before her appeal in the Court of Appeal, scheduled for April 12, 2019. It was in response to this position that the Court dealt with this by urgent case management conference, rather than leaving it until the next regular case management conference. Ms Atas did “cause” this expense.

[8] In paragraphs 5-16 of her submissions, Ms Atas argues that this court was functus officio before the judgment was issued and entered (an argument without merit and which should have been raised when Ms Atas argued that the court was functus officio after the formal order was settled), and argues that subsequent case management orders have deprived her of a “stable basis” for her appeal (an argument that is irrelevant to the issue of costs, has been decided by this court already, and which is pending before the Court of Appeal). This is continued vexatious conduct: relitigating that which has been decided and which is not relevant to the matter at hand.

[9] Costs of the case management conference of March 26, 2019 to Mr Caplan’s clients fixed at $1,000, inclusive, payable within thirty days.

D.L. Corbett J. Date: April 10, 2019