Court File and Parties

COURT FILE NO.: various DATE: 20190103 SUPERIOR COURT OF JUSTICE - ONTARIO

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

COUNSEL: Gary Caplan – Plaintiffs in the Defamation Proceedings Christina Wallis – Peoples Trust Y. Gulia – Chahals R. Smith – Reginald Bent D. Yiokaris – David Sloan and Schneider Ruggierro LLP A. Pantel – LawPro Defendants Nadire Atas self-represented

HEARD: December 7, 2018

BEFORE: D.L. Corbett J.

Case Management Endorsement

[1] This endorsement sets out decisions taken at the case management conference of December 7, 2018 and Ms Atas’ motion to set aside the notings in default in the Defamation Proceedings. It also summarizes events since December 7th and gives additional directions for moving forward.

Introduction

[2] Ms Atas has made one Chavali request to pursue proceedings or steps in proceedings since this court’s judgment of January 3, 2018. [1] That one request, made in September 2018, was addressed at the case management conference on September 14, 2018 and is reflected in my case management endorsement dated September 28, 2018. [2] In that request Ms Atas asked permission to seek leave under s.140(3) of the Courts of Justice Act to move that I recuse myself as case management judge and from further adjudication of any matters involving Ms Atas on the basis that (a) this court is functus officio as a result of the judgment in the vexatious litigant proceedings; (b) there is a reasonable apprehension that I am biased against Ms Atas because of the judgment in the vexatious litigant proceedings, in which I made findings about the underlying proceedings which are still subject to case management; (c) there is a reasonable apprehension that I am biased against Ms Atas because I granted a broad interim injunction against her, without evidence, on April 11, 2018; (d) there is a reasonable apprehension that I am biased against Ms Atas because of my comments and demeanour during the case management process since I issued the judgment in the vexatious litigant proceedings.

[3] I declined Ms Atas’ request to apply under s.140(3) of the Courts of Justice Act to move for my recusal on the basis that there was another, more expeditious and more proportional way for her to litigate this issue before me: as part of her defence of the plaintiffs’ pending motion for an interlocutory injunction. I directed her that she could assert the recusal issue in this way. Ms Atas then decided that she would not defend the injunction proceedings because they would be a “waste of time” because I had “already made my mind up” to grant the injunction.

[4] Then Ms Atas failed to file statements of defence for two of the Defamation Proceedings in accordance with case management directions, and she then refused to, and failed to attend a case management conference on October 19, 2018, despite having been ordered directly to attend, stating in an email that she would no longer attend case management meetings or participate in case management because, in her view, this court is functus officio and lacks jurisdiction over her and her proceedings. As a result of these actions by Ms Atas, I ordered her noted in default in the three Defamation Proceedings and gave directions by which the plaintiffs could move for default judgments. I also gave directions pursuant to which Ms Atas could move to set aside the defaults and indicated that she should move promptly if she hoped to succeed in those motions.

[5] Ms Atas did move to set aside the defaults, and she included in her motion her arguments that this court should recuse itself from her matters. This motion was returnable at this case management motion and is addressed below.

The Recusal Motion

[6] The recusal motion is dismissed. Full reasons will follow in due course. Here I provide an outline of those reasons to provide context for what follows in this endorsement.

[7] Ms Atas’ argument that the court is precluded from case managing her matters by reason of the doctrine of functus officio is without merit for the following reasons.

[8] First, it is true that this court is functus officio as regards the s.140 application itself. The court has decided that application, and rendered its judgment on January 3, 2018. The court was not functus officio at that time: as Ms Atas stated during argument, the court was functus officio of the s.140 application once the formal order was issued and entered. The form of the order was settled at a case management conference on February 20, 2018, as is reflected in my endorsement of February 23, 2018. [3] I understand from Ms Atas that the order was entered on February 26, 2018.

[9] This court has not been asked to vary and has not varied any aspect of the s.140 judgment since the judgment was issued and entered. I agree that this court is not able to go back, reconsider and change its judgment (unless some motion is brought before the court to vary it in some respect – something that has not been requested by any of the parties).

[10] Ms Atas argues that some decisions made by this court during case management in 2018 have varied or modified the judgment. That is simply not true. This court is required to interpret and apply the judgment in the course of ongoing case management of the underlying litigation. Doing that does not amend the judgment, any more than a court’s interpretation and application of a statute amends the statute.

[11] This point came into focus during oral argument. The doctrine of functus officio is stated and applied in the context of a judge revisiting a decision he has already made. The judge cannot do that, any more than some other judge can change a judgment that has been rendered by another judge – the judgment is authoritative and final, for all purposes, subject only to appeal. No one has the authority to change the judgment – not the parties – not the judge who made the order – not some other judge of the same court – no one – the only exceptions being (a) the authority exercised by an appellate court on an appeal properly before it; (b) a motion to vary or set aside the order in the trial court (whether made to the judge who made the order or to some other judge); or (c) theoretically, by enactment of the legislature. [4]

[12] Ms Atas has provided several examples of how decisions of this court since the judgment have had the effect of “changing” or “amending” the judgment, and thus have been inconsistent with the principle of functus officio:

(a) the court’s order that Ms Atas not receive fee waivers except by order of the case management judge;

(b) the court’s decision that the s.140 order restrain Ms Atas not only in claims she asserts others but in her defence of claims asserted against her;

I asked Ms Atas if, following her argument, she also submitted that no other judge could have made the case management orders she impugns in this way. She did not agree with that; another judge could make the orders, because s/he would not be functus officio; only this court would be precluded from making those orders. In making this argument, Ms Atas construes the doctrine of functus officio too narrowly. It is not just the judge that made the order who is functus officio because he is finished with the matter: his court is finished with the matter.

[13] There is, of course, an irony here. As is set out in detail in the judgment of January 3, 2018, Ms Atas seems to consider all orders made to be unauthoritative and contingent until she signals that she is contesting them no longer. The doctrine of functus officio is an aspect of the fundamental principle of finality in litigation that is the overarching theme of the judgment: once the matter is over, it becomes beyond debate for everyone and the trial judge cannot return to the case and start changing the order. The irony is that Ms Atas, a litigant who does not respect the principle of finality, seeks to invoke an aspect of that principle to paralyse the court’s ability to move forward with dozens of subsisting proceedings.

[14] Where an order has ongoing effect, such as the case management order in this case, it has to be interpreted and applied in the future. In doing that task inherent in the case management process, the court does not thereby revisit and change the judgment rendered on January 3, 2018.

The Fee Waiver Issue

[15] This court terminated all of Ms Atas’ fee waivers because of her extensive misuse of the civil justice system over many years, and substantial expense to her opponents and to the justice system itself. The court recognized, however, that there could be circumstances where the interests of justice could require that Ms Atas be granted a fee waiver for a particular step in a proceeding, even though her past conduct had been such as to disentitle her to fee waivers generally. And thus the court qualified the absolute termination of the fee waivers with a limited ability to obtain a fee waiver from the case management judge. The court has subsequently given Ms Atas guidance on what she will have to establish to persuade the court to grant her a fee waiver. Ms Atas argues that this guidance is some sort of change to the judgment. It is not. It is consistent with the judgment, and explains to a self-represented litigant what she must do in order to obtain a few waiver, within the terms of the judgment. The contrary view, apparently held by Ms Atas, is that all she needs to do to get a fee waiver is to write an email asking for one. That is an absurd reading of the judgment.

Application of the Judgment to Ms Atas’ Defence of Claims Against Her

[16] Ms Atas argues that this court wrongly applied s.140 to impede her defence of claims brought against her. She argues that the court has subsequently made decisions that avoid the obvious injustice of applying s.140 to defence of legal proceedings, thereby changing the s.140 judgment. Ms Atas misapprehends the effect of the s.140 judgment on this issue.

[17] The court relied on both s.140 of the Courts of Justice Act and the court’s inherent jurisdiction to justify the judgment. Courts in Alberta have recently declined to address vexatiousness with the statutory scheme, and have relied entirely on inherent jurisdiction, because of apprehended problems fitting the statutory scheme to modern litigation and modern iterations of vexatious conduct. This court chose a different path – relying upon both the statutory scheme and inherent jurisdiction.

[18] If the past year has shown nothing else, it has established that Ms Atas’ vexatious conduct is just as much a problem in proceedings she defends as it is in proceedings where she is the plaintiff. On the basis of the court’s inherent jurisdiction, and the reasoning in the judgment, this court has not required Ms Atas to make Chavali requests and bring applications under s.140(3) of the Courts of Justice Act in order to deliver statements of defence or to respond to motions brought against her by plaintiffs in the Defamation Proceedings. Ms Atas complains that this changes the judgment (going so far as to argue, at one point, that she is deprived of the benefit of the participation of the Attorney General in the process, as may result from notice to the Attorney General on a process under s.140(3).

[19] There is a further irony here, of course. Ms Atas argues that the court should take the most burdensome, difficult approach to managing her defence of proceedings against her, not because such a process might benefit her, but in order to provide some demonstration for the Court of Appeal of errors in the judgment of January 3, 2018. The court will not engage in this sort of reasoning – the judgment of January 3, 2018 has been rendered, and if Ms Atas ever does perfect and pursue an appeal it will be for the Court of Appeal to decide what to do on the appeal.

[20] The case management judge – for the time being this court – is required to move forward with the underlying litigation on the basis of the judgment declaring Ms Atas a vexatious litigant. The court may not, of course, return to the issues in the s.140 application to conduct fresh adjudication. But the doctrine of functus officio does not preclude the court from discharging its duty to case manage the underlying proceedings to their conclusion in an efficient, proportional and fair manner. And the doctrine of functus officio does not place me under any greater restrictions in case managing the underlying proceedings than any other judge of this court.

[21] As noted above, in her Chavali request in September (and in a long string of correspondence to this court, the Regional Senior Justice, and the Canadian Judicial Council), Ms Atas complained of other bases that, she says, should preclude me from continuing as the case management judge. She did not provide an evidentiary record for these claims in her motion for recusal. She was warned about this: I will adjudicate all of the bases she has raised, on the basis of the record that she has provided, and she will not be permitted to raise these allegations again at a later stage. My reasons for dismissing the recusal motion for all these other grounds will be forthcoming with my more detailed reasons addressing the issue of functus officio in due course.

Ms Atas’ Many Proceedings

[22] Ms Atas has commenced many proceedings over the years, and all of them are stayed as a result of the judgment of January 3, 2018 declaring her a vexatious litigant. These proceedings had been previously stayed for many years as a result of a case management direction of Stinson J. and a subsequent case management order from this court pending decision on Ms Atas’ motion to remove the public guardian and trustee as her litigation guardian, and then the s.140 application brought against Ms Atas to have her declared a vexatious litigant. During the course of the s.140 application, Ms Atas was clear that she wished to proceed with these claims, and she sought to litigate the merits of those claims within the s.140 application itself. Since the judgment in the s.140 application, however, Ms Atas has not sought to take any steps to advance her underlying litigation. At the time of the case management conference, it had been eleven months since the judgment, and she had done virtually nothing to advance her claims.

[23] In the judgment declaring Ms Atas a vexatious litigant, I made numerous case management orders designed to move forward to some conclusion with all of the outstanding litigation involving Ms Atas. Some of this litigation is brought against Ms Atas; some of it is brought by her. In the judgment, Ms Atas is required to make a request of the case management judge to commence or pursue legal proceedings. Aside from the request to move on the recusal issue, Ms Atas has not made a single request to pursue any of the legal proceedings in which she and/or her company are a plaintiff.

[24] This court has advised Ms Atas several times that she must move forward with her litigation or face having it dismissed. This court has also provided deadlines for Chavali requests in specific proceedings with a view to deciding whether proceedings against various defendants ought to continue, and, if they should, to giving directions to move them forward. In particular:

(a) Ms Atas has proceedings against the Chavalis, who are the persons who purchased the St George Street property from Ms Atas back in 2010. The basic facts around this transaction are set out in the s.140 judgment. Ms Atas has sued the Chavalis in respect to several claims that she says arise from their purchase of her property. The transaction closed years ago, and the Chavalis have had these claims hanging over their heads for years. Some of these claims involve personal property allegedly belonging to Ms Atas that was removed from the property after the Chavalis purchased it. The property was held in storage for many years and was not transferred back to Ms Atas until August 2018, following directions from this court to bring that situation to an end: the Chavalis had been paying monthly storage costs for the property for years and the parties had not been able to agree on terms to transfer the property back to Ms Atas. In June 2018, I directed that Ms Atas make a Chavali request in respect to her claims against the Chavalis by July 31, 2018, failing which the Chavalis could request this court to dismiss those proceedings. Ms Atas did not make the Chavali request. At the case management conference of September 2018, this court declined to dismiss the proceedings against the Chavalis because the personalty had not yet been transferred back to Ms Atas. The court did not extend Ms Atas’ deadline to make a Chavali request (which had expired on July 31st), but indicated that the court would consider any request that was made. If none was made before the next case conference then the Chavalis could renew their request for dismissal of the proceedings against them.

(b) During the s.140 application, Ms Atas advised that she wished to move to re-open the Gomes/Kelly Mortgage Action – a case that had been decided on a final basis by Pitt J. in 2004, with an appeal from Pitt J.’s decision dismissed by the Court of Appeal in 2005. Numerous claims brought by Ms Atas have their genesis in the Gomes/Kelly mortgage transaction and seem to be predicated on Ms Atas’ view that the decision by Pitt J. should be set aside or varied. This court has given Ms Atas several opportunities to pursue her stated intention to revisit the Gomes/Kelly Mortgage Action judgment, the most recent of which was a deadline of November 30, 2018 to make a Chavali request to re-open that litigation. Ms Atas has not made the request or taken any other step in regard to the Gomes/Kelly Mortgage Action.

(c) Ms Atas has ongoing litigation with Peoples Trust over its two mortgage enforcement proceedings, one involving the St George Street property and the other involving the Wycliffe property. In both proceedings Peoples Trust has obtained judgments (of Aston J. and Lederer J.). In both cases Ms Atas commenced appeals; both appeals were dismissed after deadline extensions passed for failing to perfect the appeals. In the s.140 application and subsequent to the judgment, Ms Atas has indicated that she intends to move to set aside or vary the mortgage judgments of Aston and Lederer JJ. This court has given Ms Atas several opportunities to pursue her stated intention to revisit the judgments of Aston and Lederer JJ., the most recent of which was a deadline of November 30, 2018 to make a Chavali request to re-open that litigation. Ms Atas has not made the request or taken any other step in regard to either judgment in the Peoples Trust mortgage proceedings.

(d) Ms Atas has ongoing litigation with various lawyers, some of whom were adverse in interest to her, and many of whom were her solicitors at various times. The claims are largely in respect to services provided in connection with or related to the Gomes/Kelly Mortgage Action or the Peoples Trust Mortgage Actions. This court has given Ms Atas several opportunities to pursue her claims against these lawyers, the most recent of which was a deadline of November 30, 2018 to make a Chavali request to pursue this litigation. Ms Atas has not made any of these requests or taken any other step in regard to her proceedings against lawyers. Some of these lawyers had fee disputes in which they were claiming fees from Ms Atas. Since the judgment, this court was advised by counsel for the lawyers that none of them would pursue their claims for fees other than David Sloan and his law firmer, Schneider Ruggiero LLP, which still had an ongoing claim for about $8,200 in unpaid professional fees.

(e) Ms Atas has asserted counterclaims in the Defamation Proceedings. In the same management endorsement of June 27, 2018, Ms Atas was given permission to serve and file these claims (in the 2010 and 2018 Defamation Proceedings – she had already served and filed her defence and counterclaim in the 2016 Defamation Proceedings). She was required to make Chavali requests for the counterclaims by July 31, 2018. She did not. This was raised again at the case management conference of September 14, 2018. Still she has not made the Chavali requests to pursue the counterclaims.

[25] In her agenda submissions, Ms Atas acknowledges that she has made no Chavali requests respecting her claims and counterclaims. She states that she will not be making any Chavali requests.

[26] I raised this with her at the start of the case management conference on December 7, 2018. Ms Atas has said for years that she wishes to pursue her many claims and believes that she has a proper basis for them. The ongoing case management process of her claims has been premised on the basis that she actually does wish to proceed with them and believes she should be able to do so.

[27] The consequence of Ms Atas not making Chavali requests is that the underlying proceedings will be dismissed. Ms Atas purported not to understand this, even though she has been told this several times by the court. In her view, if she does not make the requests, the proceedings will simply continue, subject to the stay order arising from the finding that she is vexatious. If she wins her appeal, she says, then she will be able to continue with her litigation without the disabling effect of the orders made against her by this court. If she does not succeed in her appeal, then at that time she may request to pursue her claims pursuant to Chavali.

[28] I disabused her of her thoughts about how the future will unfold. Of course if the Court of Appeal sets aside the judgment from January 3, 2018, then matters will proceed thereafter as may be directed by the Court of Appeal. But neither this court nor Ms Atas is permitted to speculate about what the Court of Appeal might decide or how that might affect Ms Atas’ litigation going forward. This court decided, in the judgment of January 3, 2018, that case management should move forward on the basis of the judgment pending any appeal that might be brought. In other words, this court put its mind to whether the judgment should be stayed pending appeal and concluded that it should not be. Ms Atas disagreed with this decision. She failed to follow the numerous directions in the judgment designed to move forward in the underlying litigation, and in substitution for complying with this court’s directions, delivered lengthy affidavits that were a summary of her many arguments why she believes the judgment is wrong and should not be followed pending her appeal.

[29] When Ms Atas was told, directly, and repeatedly, that the judgment was not stayed, and that if she did not obtain a stay from the Court of Appeal, matters would proceed as set out in the judgment and this court’s case management orders, Ms Atas finally applied for a stay from the Court of Appeal. The stay was denied on an interim basis by Trotter J.A., and was denied pending determination of the appeal by Rouleau J.A. The Court of Appeal denied the stay on the basis that a stay would impede this court’s case management of the underlying litigation, which is ongoing.

[30] Ms Atas has disregarded the directions of this court about moving her own litigation forward, because, even though the judgment has not been stayed, she has decided to do nothing about her litigation until after her appeal has been decided. The process Ms Atas says she has decided to follow – do nothing now and then move forward based on what the Court of Appeal decides – is another way of describing a stay – the stay denied her by this court and by the Court of Appeal. When I pressed her on this point, she noted that the stay decision had only been made by a single judge of the Court of Appeal, not a panel of three, and could be subject to reversal by a full panel of the Court of Appeal.

[31] I told Ms Atas, again, that the consequence of her failure to take the steps required of her in her own litigation, in order to move forward, is that her litigation will be dismissed. At that point she responded that she “could” make the Chavali requests.

[32] Enough is enough, to repeat the citation quoted at the start of the judgment of January 3, 2018. The defendants to Ms Atas’ claims have been waiting many years to have these cases disposed of. The delay has been intolerable. And while there might be some basis to excuse long periods of delay prior to the judgment of January 3, 2018, there is no excuse for Ms Atas’ failure to take any steps to move forward with her claims since the judgment was handed down. The court has been very patient with Ms Atas, because she is self-represented, because there is a great deal of litigation and Ms Atas has limited resources with which to pursue claims. But enough is enough.

[33] Ms Atas’ claims against the Chavalis are dismissed. Mr Gulia shall prepare the orders to this effect for my signature. There shall be no costs of these actions: Mr Gulia sensibly indicated that he would not seek costs since the prospect of recovery was slight and it did not seem worthwhile spending the money to prepare bills of costs.

[34] The counterclaims in the Defamation Proceedings are dismissed without costs. Ms Atas was required to make her Chavali requests in July, so that the pleadings could be finalized and the cases readied for trial. The plaintiffs should not be delayed further in prosecuting their claims because Ms Atas has chosen not to pursue her counterclaims in accordance with this court’s directions. Mr Caplan shall prepare the dismissal orders for my signature.

[35] Ms Atas has failed to make a Chavali request to re-open the Gomes/Kelly Mortgage Action. No order is required in respect to this failure – the judgment of Pitt J., affirmed by the Court of Appeal, remains as an authoritative final order and case management shall proceed on the basis that this judgment is beyond dispute by Ms Atas.

Mortgage Enforcement Costs

[36] Ms Atas asks to file supplementary materials related to the mortgage enforcement cost accounting issues. Her deadline was October 19th and she provided her materials on October 21st. At the case management conference Ms Atas said that she had forgotten to include about two pages of argument and seven pages of attachments. She asked to be able to file these materials “after the holidays”.

[37] I advised Ms Atas that I would exercise my discretion to file these materials by December 17th, and indicated that she could provide these materials to me when she appeared before me for sentencing on the contempt matters (as previously scheduled).

[38] Ms Atas did not bring these materials with her on December 17th. Instead she asked for further time to provide them. As I indicated to her on that day, the attendance on December 17th was solely for the purpose of addressing the contempt matters. I was not prepared to hold a further case management conference on that day because of lack of time to do so and lack of notice to other parties. And I would not re-open matters decided on December 7th in the absence of a properly constituted case management conference, on notice to all affected parties.

[39] Ms Atas was to provide her detailed response to the mortgage enforcement cost accounting issues pursuant to the judgment of January 3, 2018. She did not do so. She then missed repeated deadlines for materials. I have accepted her materials delivered late, on October 21st. I will not accept any further materials from her at this late stage.

[40] I now have what I consider to be complete materials on these issues and will provide my decision about them in due course. I note that I also have received materials from both sides on the “merger” issue that relates to the mortgage enforcement costs claims. I indicated to the parties that I have had a chance to review these materials briefly and consider that I may need to hear oral argument from them on this issue. I will provide an endorsement on this point in due course.

Outstanding Costs Orders

[41] Two issues respecting these points were addressed at the case management conference of December 7, 2018. First, I indicated that Ms Atas had raised an issue about two of the outstanding costs awards claimed by Peoples Trust: the costs awarded in the final judgments of Lederer and Aston JJ. in the Peoples Trust Mortgage Enforcement Actions. Ms Atas argued in her materials that these costs awards had been paid out of the sale proceeds of the two properties, as was reflected in the documents respecting those transactions. I directed Peoples Trust to deliver any responding submissions they had to these points, which they have now done. I do not require any further materials respecting these issues and will provide my decision on them in due course.

[42] Second, I had understood that Peoples Trust was asking that outstanding costs orders be paid to Peoples Trust now, from the money held in trust to secure the mortgage enforcement costs claims. Ms Atas had also understood that to be Peoples Trust’s position.

[43] Ms Atas opposed payment out of these costs from the funds held in trust. Ms Wallis indicated that her client was not pursuing that payout now, and that her position on the point had been misunderstood. Ms Atas then reversed her position and insisted that she did want the outstanding costs orders to be paid out from the money held in trust, so that interest would not continue to accrue on those awards – she was particularly anxious about this because the costs orders are stated to bear interest, and the funds held in trust have apparently been held in a non-interest bearing account. Ms Wallis then indicated that she was prepared to agree to an order that funds be paid out to pay out the undisputed costs orders. Ms Atas then changed her position again and said she would agree to the money being paid out in this way so long as it was “without prejudice”. I asked her what she meant by “without prejudice” and she was unable to explain what she had in mind in a way that I could understand.

[44] Ms Wallis’ first position on December 7th was that Peoples Trust was not asking for a pay out if it was opposed. Ms Atas’ statement that the payout would have to be “without prejudice” was not sufficient to convey consent. In the circumstances I decline to order a payment out now, without prejudice to either party raising this issue again at a future case management conference.

[45] There is an additional issue – not discussed at the case management conference – which is Ms Atas’ request for costs of certain steps taken in the predicate proceedings. I have materials on this issue from all interested parties and will decide the issue in due course.

Scope of Case Management

[46] Mr Caplan raised the issue of the scope of case management moving forward. To be clear, the case management judge is seized of case management of all proceedings in which Ms Atas and/or her company are parties unless the case management judge makes an order to the contrary in respect to a specific proceeding or a specific step in a proceeding. This order applies to all proceedings commenced as of today and to any proceedings hereafter commenced, and includes, without limitation, every proceeding in the Superior Court (whether the action is commenced under the Simplified Rules or otherwise), the Small Claims Court and the Divisional Court.

“Jurisdiction”

[47] The plaintiffs in the Defamation Proceedings ask that I indicate that I will hear all motions in the case-managed proceedings. I will not make that order. I will decide, on a step-by-step basis, whether I will hear particular motions or other steps in proceedings. My appointment as case management judge did not direct me to hear all motions and I see no reason to make such an order myself: among other things, the demands of the parties on the court’s time have been substantial, and it may be necessary that other judges or Masters hear particular motions simply in the interests of attending to those steps with reasonable dispatch.

The Defamation Proceedings

(a) The Notings in Default

[48] I ordered Ms Atas noted in default in the three Defamation Proceedings on October 19, 2018, because of her failure to comply with this court’s orders to file the statements of defence. I also gave directions for her to bring any motion to set aside the notings in default promptly. These motions did not come on for hearing until December 7, 2018.

[49] There is but one difficulty here. The plaintiffs seek broad relief against Ms Atas in respect to very serious allegations of malicious defamation online, and multiple breaches of court orders restraining Ms Atas from this conduct. The consequences for Ms Atas of losing these actions could be very serious. The court wants Ms Atas to have every reasonable opportunity to defend herself in these proceedings.

[50] And yet Ms Atas has proved herself ungovernable since the judgment in the s.140 application. In respect to the instant issue, her failure to file the defences – which apparently have been ready since the summer of 2018 – seems motivated by a desire to dispute with the court its jurisdiction and the merits of its various directions. Something had to be done to brought Ms Atas back to the table – and what has been done is the three notings in default and the citations for contempt accompanied by a short, sharp jail sentence for the most flagrant of Ms Atas’ contempts of court. Studied and longstanding as Ms Atas’ defiance has been of this court’s case management orders, I still do not think that matters have reached such a pass that she should be precluded from defending the Defamation Proceedings, on the merits, if she wishes to do so.

[51] The three notings in default are set aside, and Ms Atas is to ensure that her statements of defence in the three Defamation Proceedings are filed forthwith, with copies of them thereafter provided to this court.

(b) Motions for Summary Judgment

[52] Mr Caplan advises that his clients all wish to move for summary judgment in the Defamation Proceedings. Ms Atas states that she wishes to move to strike affidavits filed on the motions.

[53] Ms Atas shall serve and file her motion to strike affidavits by January 31, 2019. She shall pay the regular motions fee for this motion, or she shall apply for a fee waiver in accordance with this court’s prior directions no later than January 25, 2019. The motion to strike shall be returnable before me on February 15, 2019, at 10 am, for no more than half a day. Ms Atas is cautioned that she must include every basis on which she objects to the plaintiffs’ motion materials in her motion returnable February 15th.

[54] Mr Caplan advises that he expects to receive further evidence around the end of January 2019 (respecting the source of various internet postings, obtained through legal process in California). If possible, the court asks that Mr Caplan serve any additional evidence upon which his clients rely on the motion for summary judgment before the return of Ms Atas’ motion on February 15th. Ms Atas will not be expected to include objections to evidence filed by the plaintiffs hereafter in her motion on February 15th. However, the court expects that all parties will be to advise of all further steps that will be required after February 15th in order to ready the motions for summary judgment for a hearing on the merits.

Motions for Dismissal of Actions Against Peoples Trust

[55] Peoples Trust wishes to move to dismiss actions brought against it by reason of Ms Atas’ failure to make Chavali requests by November 30, 2018, as she had been ordered to do. Peoples Trust shall deliver its motion materials by December 14, 2018; Ms Atas shall deliver responding materials by January 11, 2019. Ms Atas asked for the opportunity to make oral argument on this motion. I will give directions on how this motion shall proceed once I have reviewed the materials delivered by the parties.

Motions for Dismissal of Actions by the LawPro Defendants

[56] Mr Caplan advises that the LawPro Defendants will move to have the proceedings against them dismissed on the basis that no Chavali request has been made about them since the judgment, eleven months ago. The LawPro Defendants shall deliver their motion materials by December 14, 2018. Ms Atas shall deliver her responding materials by January 11, 2019. I will give further directions about how these motions shall proceed once I have reviewed the materials.

Claim by David Sloan for Legal Fees

[57] Mr Sloan has decided not to pursue his claim for unpaid fees on the basis that the costs of pursuing the claim (which is for $8200) balanced against the remote prospects of any net recovery, render the claim uneconomic. Mr Sloan’s action is in Small Claims Court. That action, including the counterclaim advanced in it by Ms Atas, is dismissed.

[58] Ms Atas has a separate action against Mr Sloan in the Superior Court. The dismissal of Ms Atas’ counterclaim in the Small Claims Court Action is without prejudice to her claims in the Superior Court proceeding.

[59] Mr Sloan’s counsel shall prepare the necessary documents for my signature to effect the dismissal of these proceedings.

Appeal Proceedings

[60] Ms Atas is apparently under a misapprehension about whether she is required to obtain leave under s.140(3) of the Courts of Justice Act, and prior permission by way of a Chavali request, before she can commence an appeal in the Court of Appeal. This has been explained to her several times and is clear in the judgment. It is established law that a person who has been declared vexatious may not bring appeals without first obtaining leave under s.140(3). This applies to all appeals governed by the Ontario Rules of Civil Procedure, including appeals to the Divisional Court and to the Court of Appeal.

[61] Ms Atas should understand that if she disobeys these directions, not only could she face dismissal motions in the appellate court, but also she could be subject to contempt proceedings in this court. This admonition does not apply to Ms Atas’ intended appeal [5] of the s.140 judgment (for which this court granted leave in the s.140 judgment itself, if it was thought that such leave was required), nor does it apply to Ms Atas’ intended appeal from this court’s contempt judgment against her, as explained in that judgment. [6]

Outstanding Issues

[62] The case management conference of December 7, 2018 took an entire day. I asked the parties if there were any further issues to address and once there were no further matters raised, the conference was adjourned. As was the case at the June case management conference, when I was reflecting on the case management conference and preparing this endorsement, I realized that there were, in fact, matters that still need to be addressed. They are:

(a) the deadline for Ms Atas’ statement of defence in the Babcock Defamation Action;

(b) the status and schedule for the motion for an interlocutory injunction in the Defamation Proceedings;

(c) confirmation of filing of the statements of defence in the Defamation Proceedings;

(d) date for the next case management conference.

[63] Ms Atas shall serve and file her statement of defence in the Babcock Defamation Action by January 31, 2019. Although it should not be necessary to do so, I note that there is no fee waiver of the filing fee for filing this statement of defence. If Ms Atas seeks a fee waiver for that filing fee, she shall have to apply for the waiver, in the manner provided in this court’s prior endorsements, and she must do this no later than January 25, 2019 so that this court will be able to decide the issue in time for Ms Atas to proceed on the basis of this court’s decision within the filing deadline of January 31st. If Ms Atas does not obtain a fee waiver in this way, then she will have to pay the applicable filing fee.

[64] Ms Atas has not filed any responding materials on the motion for an interlocutory injunction in the Babcock Defamation Action. That motion shall proceed before me on Tuesday January 29, 2019, at 10:00 am. Ms Atas will not be permitted to file any evidence, having now missed the deadlines for doing so. The motion will proceed on the basis of the record filed by the moving parties. Ms Atas will be permitted to deliver a factum and to make oral argument, but she should understand that she will be restricted to making argument on the basis of the evidence before the court. All factums for this motion shall be provided to me, electronically, through my assistant, no later than January 25, 2018.

[65] In this decision I set aside the notings in default in the Defamation Proceedings previously ordered by this court. I require confirmation from Ms Atas that she has, in fact, filed her statements of defence in the Defamation Proceedings, now that the defaults have been lifted. She shall provide this confirmation, by email, attaching a copy of each of the statements of defence, by January 25, 2019.

[66] The next case management conference shall be on Friday March 8, 2019, 10 am, for an estimated half day.

Further Endorsements “In Due Course”

[67] I have indicated in this endorsement that further decisions will be released “in due course”. In addition, I will be releasing an endorsement summarizing the status of the overall case management process since the judgment of January 3, 2018, which will act as a road map for moving forward with case management of the litigation that remains.

[68] These matters have required an intensity of supervision that is virtually unheard of in proceedings in Ontario. This has been because of Ms Atas’ continued defiance of the court’s orders for the past year. The parties must understand that these matters are not the only tasks on the court’s docket, and indeed, the court is behind in its other obligations in large measure because of the excessive demands these proceedings have made on the court’s time. This is not what is meant by case management – an active sort of involvement on an almost weekly basis since Labour Day is not what is meant by “case management”.

[69] The matters that are now under reserve, and which will be released “in due course”, will be released when time becomes available for the court to direct its attention to these matters. If the need for decision on a particular point becomes pressing, for some reason, the parties may so advise the court, in writing, and I will try to accommodate such exigency as may truly exist.

D.L. Corbett J. Date: January 3, 2019

[1] Peoples Trust v. Atas, 2018 ONSC 58. [2] Peoples Trust v. Atas, 2018 ONSC 5631. [3] Peoples Trust v. Atas, 2018 ONSC 1281. [4] I say theoretically because it is almost unheard of for the legislature to do this, in modern times, in respect to a private judgment. The legislature frequently does enact legislation to vary the principles set down in judicial decisions for future cases – a feature of the “dialogue” between the courts and legislature in common law jurisdictions. [5] As of the time of the case management conference, Ms Atas’ appeal had been dismissed for failure to perfect the appeal in accordance with extensions granted by the Court of Appeal. Ms Atas had told this court that she intended to seek a further extension, and that her most recent failure to perfect had been a “technicality”. This court had told her that she should regard her need to obtain a further extension as urgent, but that notwithstanding, as of December 17, 2018 she had still not sought the further extension, and she was not clear with me on December 17th as to when she would try to take that step. [6] Caplan v. Atas, 2018 ONSC 7569, para. 83.