SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NOS.: various
DATE: 20191023
RE: 4 Defamation Proceedings Against Nadire Atas
BEFORE: D.L. Corbett J.
COUNSEL: Gary M. Caplan, for the Plaintiffs Nadire Atas, not appearing
CASE MANAGEMENT ENDORSEMENT (DEFAMATION PROCEEDINGS)
[1] A case management conference was held on October 4, 2019. Ms Atas did not attend. The case management conference proceeded in Ms Atas’ absence and orders and directions were made. This endorsement sets out the directions given respecting the four defamation actions brought against Ms Atas. Separate endorsements will be released respecting other issues addressed at the case management conference, including Ms Atas’ decision not to attend on October 4th, and not to take part in any further case management conferences.
[2] At the May 30, 2019 case management conference, Ms Atas stated that she wished to move for a stay of the defamation proceedings pending disposition of the contempt proceedings ongoing against her. I considered that there might be a tenable argument for the relief Ms Atas described and directed Ms Atas that, if she wished to seek that relief in the defamation proceedings, she deliver her motion materials in that regard by July 19, 2019. She did not do so. As of October 4, 2019 she still had not done so.
[3] I was mindful on May 30, 2019 that Ms Atas has a long history of saying that she is going to take certain steps in order to precipitate delay. I put it thusly in my endorsement from the case management conference of May 31, 2019:
If Ms Atas does not deliver her motion materials by July 19th, as ordered, then the motions for summary judgment shall proceed. The moving parties’ materials will be complete once Mr Caplan delivers the additional materials due on July 19, 2019. Ms Atas shall have until September 30, 2019 to deliver responding materials.
I appreciate that this sounds complicated, and perhaps even inconsistent. Ms Atas says she will bring a motion to put a halt to these motions. I have said that the court will entertain this motion. And yet I have also stipulated a date by which Ms Atas must deliver her responding materials, assuming these matters are not stayed.
Ms Atas has a long history of introducing procedural motions for the purpose of causing delay. The court has made no assessment of the potential merit of Ms Atas’ stay motion, aside from concluding that, in the thumbnail description of it given at the case management conference, it raises serious issues, has some prospect of some success, and may involve important interests for Ms Atas. Ms Atas should be given a reasonable chance to bring this motion forward. However, if she fails to do so, then matters will proceed as if she had not raised this point: delay is not purchased by stating an intention to bring a motion. Once I have a chance to review the motion materials, I will give further directions that may include lifting or extending the due date for Ms Atas’ responding motion materials. (2019 ONSC 3620, paras. 51-53)
[4] Ms Atas did not deliver responding motion materials for the motions for summary judgment in the three defamation actions in which such motions have been brought. Her deadline was September 30, 2019. These motions may now proceed without any responding evidence from Ms Atas.
[5] In respect to the fourth defamation action (the Babcock action), I ordered Ms Atas to file her defence in the Babcock action by July 5, 2019. Mr Caplan advises that he was served with a statement of defence and counterclaim, but that he has no knowledge of its having been filed. The Superior Court FRANK system and filing office advise that no statement of defence has been filed in the action (CV-18-608448).
[6] This requirement was reiterated in this court’s endorsement of July 15, 2019, in the following terms:
At the case management conference of May 31, 2019, I ordered Ms Atas to file her defence in the Babcock action by July 5, 2019, and to provide this court with a copy of her defence also by July 5, 2019: 2019 ONSC 3620. Ms Atas has not provided the court with a copy of this pleading, in violation of the court’s direction.
If Ms Atas has not filed her defence then the plaintiffs may requisition that she be noted in default in the Babcock action. If Ms Atas has filed her defence, she shall immediately provide a copy of it to my assistant, and should expect to be required to explain why she did not comply with the court’s direction to provide this document by July 5th. (2019 ONSC 4285, paras. 14-15).
[7] Ms Atas has repeatedly failed to follow this court’s directions to file pleadings and provide a copy to the court. I see no reason why the plaintiffs should be put to further expense and delay because of Ms Atas’ failure to follow clear, simple directions. Ms Atas is hereby noted in default in the Babcock action.
Motions in the Defamation Proceedings
[8] Mr Caplan has delivered motions for summary judgment in three of the defamation proceedings. No responding evidence has been filed. These motions shall proceed before me on November 15, 2019, 10 am.
[9] Ms Atas has now been noted in default in the Babcock action by this court. The plaintiffs in that action may move for default judgment before me on November 15, 2019, 10 am.
[10] Mr Caplan shall deliver a motion record for the motion for default judgment by October 15, 2019, if his clients wish to move for default judgment. Mr Caplan shall deliver one factum, covering the motions for summary judgment and the motion for default judgment; this factum shall be delivered by October 15, 2019. Mr Caplan shall deliver by November 8, 2019 a draft order in each of the defamation proceedings, setting out precisely the relief sought in each proceeding, whether by default or by way of summary judgment.
[11] Ms Atas may not file evidence on the motions for summary judgment: she was given her chance to do this and failed to do so. She may, however, provide a factum on the basis of the evidence before the court on the motions for summary judgment and she may make oral argument on the motions for summary judgment on November 15, 2019. Any factum Ms Atas wishes to rely upon should be delivered by November 8, 2019. I say “should be” because Ms Atas routinely fails to meet filing deadlines. If she is late with her factum, I may still permit her to deliver it, even on the day of the motion, but this will depend on the extent to which late delivery of the factum may work unfairness to the moving parties.
[12] Ms Atas may move to set aside the noting in default in the Babcock action, if she is so inclined. If she decides to do so, her motion materials should be delivered by November 8, 2019, and that motion should be returnable on November 15, 2019.
[13] Subsequent to the case management conference, but prior to release of this endorsement, Ms Atas received materials from Mr Caplan and communicated with the court about them. Most of that communication does not merit comment, however one point should be addressed. Ms Atas has indicated that she wishes to move before me for an order that I should recuse myself on the basis of bias or reasonable apprehension of bias. Ms Atas has been told repeatedly that there is a process she must follow if she wishes to bring a motion. She must raise that issue at a case management conference, in order to obtain directions, or she must make a Chavali request to be permitted to bring the motion. Ms Atas decided not to participate in the case management conference. She has said repeatedly that she will not make a Chavali request to bring a recusal motion.
[14] On November 15, 2019, the court has scheduled up to a full day for argument of the motions for summary judgment and the motion for default judgment (and any motion to set aside the noting in default, if such a motion is brought). Ms Atas may raise any relevant arguments she wishes on these motions, but she may not deliver evidence except in accordance with the terms of this endorsement: she had her chance to deliver motion materials, did not do so, and the moving parties should not be delayed further.
D.L. Corbett J.
Date: October 23, 2019