Court File and Parties

COURT FILE NO.: various

DATE: 20190114

SUPERIOR COURT OF JUSTICE - ONTARIO

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

COUNSEL: Gary Caplan – Plaintiffs Christina Wallis – Peoples Trust Nadire Atas self-represented

HEARD: Without notice, in Chambers, in writing

BEFORE: D.L. Corbett J.

ORDER GRANTING MS ATAS PERMISSION TO APPEAL FINDINGS OF AND SENTENCE FOR CONTEMPT OF COURT

[1] On December 17, 2018, I provided reasons for finding Ms Atas in contempt of court and sentenced her to six days in prison, less one day’s credit for time served.

[2] I declined to stay the sentence pending the appeal that Ms Atas advised me she intended to bring. I did, however, suspend operation of the sentence to give Ms Atas a chance to seek a stay from the Court of Appeal:

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.[^1]

[3] Ms Atas did not make a Chavali request to seek leave to pursue an appeal of the contempt finding and sentence. I raised this point with her and advised as follows:

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.[^2]

[4] My office received word on January 8, 2019 that Ms Atas had been advised by the Registrar of the Court of Appeal that her appeal could not be accepted without an order from this court permitting her to take that step.

[5] I directed my office to advise Ms Atas that I would not be able to assist her until my return to the court on January 14th, but that at that time I would grant her the permission she needs to bring her appeal, and that I would also delay the start of her sentence by a further three weeks to give her time to seek a stay from the Court of Appeal.

[6] My reasons for granting this order are as follows:

(a) Contempt proceedings brought against Ms Atas do not fall within the language of s.140 of the Courts of Justice Act. They are proceedings brought against her, not by her. They are proceedings that are quasi-criminal in nature, though fundamentally still civil proceedings subject to the Courts of Justice Act and the Rules of Civil Procedure.

(b) The incidents of contempt, in this case, were all contempt “in the face of the court”, raised by the court on its own motion, to respond to Ms Atas’ defiance of this court’s orders.

(c) The terms of the judgment of January 3, 2018 require Ms Atas to obtain leave pursuant to s.140(3) of the Courts of Justice Act, and, prior to that, permission from the case management judge by way of a Chavali request, before she may commence her proposed appeal.

(d) Since these requirements are not, themselves, founded in s.140 of the Courts of Justice Act (as explained in (a) above), the jurisdiction to impose them arises as a matter of inherent jurisdiction. In the judgment, this court justified this use of the court’s inherent jurisdiction on the basis that Ms Atas’ behaviour had to be controlled, not only when she sues people, but also when she defends proceedings.

(e) Since the requirement in the judgment is based upon the court’s inherent jurisdiction, rather than s.140, this court has the discretion to relieve from it.

(f) Ms Atas’ liberty interest is engaged because I sentenced her to a brief term of imprisonment.

(g) This court has ongoing case management responsibility for all litigation involving Ms Atas. This has involved the court in an intensive case management process since the judgment of January 3, 2018. Ms Atas has repeatedly raised concerns about the court’s impartiality and jurisdiction.

(h) Under the judgment, it is for this court to decide whether to give Ms Atas permission to apply under s.140(3), and then to manage the application process itself, and possibly to hear the s.140(3) application itself.

(i) This court will not pass along its responsibility to assess Chavali requests or to handle s.140(3) applications because a request involves an appeal of this court’s own orders – to take such an approach would be to invite a series of frivolous appeals and to require excessive resources from the Superior Court, given the history of these matters. However, where, as here, the court has acted on its own motion to find Ms Atas in contempt of court and, for the first time, has sentenced her to a brief period of incarceration, it would be unseemly for this court to refuse to permit her to appeal.

(j) I could refer the question of whether Ms Atas should be given permission to apply under s.140(3) and then any s.140(3) application to other judges. However, the purpose of s.140(3) and the Chavali order is to protect Ms Atas’ litigation opponents and the justice system itself from vexatious litigation – not to require unnecessary steps.

(k) I am satisfied that the appearance of justice requires that Ms Atas be permitted to appeal the finding and sentence for contempt of court for which she has been sentenced to a period of incarceration. I am satisfied that no good purpose would be served by requiring Ms Atas to apply for this permission pursuant to s.140(3) of the Courts of Justice Act: Ms Atas’ litigation opponents were not parties to the contempt proceedings and need not participate in the appeal if they do not wish to incur the cost of those proceedings. Thus I am prepared to proceed on the basis of Ms Atas’ without notice motion.

[7] Order to go pursuant to my judgment of January 3, 2018, granting Ms Atas permission to appeal the finding of contempt and custodial sentence for contempt in connection with her failure to abide by the court’s order to attend before this court on October 19, 2018, and order to go dispensing with the requirement that Ms Atas apply under s.140(3) of the Courts of Justice Act for leave to commence this appeal.

[8] As my office indicated to Ms Atas last week, I will also extend the commencement date of her custodial sentence. It was to begin today, January 14, 2019. I extend this date for three weeks, to February 4, 2019. Ms Atas shall present herself before me at 9:30 am on February 4, 2019, either to provide me with a copy of a stay order from the Court of Appeal, or to begin serving her sentence.

[9] None of this is to imply that this court considers Ms Atas’ appeal to have merit or that a stay of the sentence should be granted pending appeal: those are questions for the Court of Appeal to decide.

[10] At Ms Atas’ request, and in the interest of further clarity, permission is not granted to appeal the other three findings of contempt for which no custodial sentence was imposed.

D.L. Corbett J.

Date: January 14, 2019

[^1]: Caplan v. Atas, 2018 ONSC 7569, para. 82.

[^2]: Caplan v. Atas, 2018 ONSC 7569, para. 82.