Peoples Trust Company et al. v. Nadire Atas and 626381 Ontario Ltd.

COURT FILE NOS.: 14-CV-515899

DATE: 20200603

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Peoples Trust Company et al. v. Nadire Atas and 626381 Ontario Ltd.

BEFORE: D.L. Corbett J.

COUNSEL: Nadire Atas, in writing

ENDORSEMENT

[1] Ms Atas moves without notice for permission to apply under s.140 of the Courts of Justice Act, “to rescind or set aside” the vexatious litigant order made against the defendants in this court’s judgment of January 3, 2018 (2018 ONSC 58) (the “Judgment”).

[2] The motion is brought pursuant to paragraph 6 of the formal judgment of this court, which states:

THIS COURT ORDERS that the Respondents are prohibited from commencing any Application under section 140(3) of the Courts of Justice Act , R.S.O. 1990, c. C.43, as amended for leave to proceed with a proceeding or step in a proceeding in any Court in Ontario until such time as they have obtained an order from the case management judge giving them permission to bring an application under section 140(3) of the Courts of Justice Act , R.S.O. 1990, c. C.43, as amended, for leave to proceed with a proceeding or step in a proceeding which order shall be obtained through a motion in writing and on a without notice basis. The steps for such a motion by the Respondents shall proceed as follows:

(a) The motion shall be accompanied by (a) an affidavit, not exceeding ten pages in length (double-spaced), that outlines the merits of the proposed proceeding or step; (b) explains the extent (if any) to which the said Respondents have satisfied the outstanding costs awards against them; and (c) a copy of the Reasons for Judgment and this Judgment.

(b) If the court is of the view that the proposed application for leave to proceed has a sufficient degree of merit, the court will direct that a full application for leave to proceed be prepared which shall then be served on the responding parties and a date for the hearing of that application shall be set thereafter.

[3] Ms Atas’ request is, itself vexatious. For the reasons that follow, it is denied.

The Vexatious Litigant Order Is Final And Not Subject to Further Review on the Merits

[4] Ms Atas apparently misconceives the purpose of a motion to rescind a vexatious litigants order under s.140 of the CJA. Such a motion is not for the purposes of reviewing the correctness of the original order – both in its central finding and in its details. A motion under s.140 may be brought properly where a vexatious litigant can establish that she should once again be granted unfettered access to the courts. The range of circumstances in which such an order might be appropriate are not finite, but generally they could include:

(a)

(a) Evidence that the vexatious litigant has changed and can be expected to conduct future litigation in a manner that is not vexatious.

(b) Evidence that the vexatious litigant has taken responsibility for her past misconduct, including payment of outstanding costs awards, or payments of such amounts towards those costs as she might reasonably be able to pay.

(c) Evidence that there are potentially meritorious claims that the vexatious litigant wishes to pursue to achieve justice for herself.

(d) Evidence that the vexatious litigant has moved on from the disputes and controversies that led her to engage in vexatious litigation.

[5] What a motion to rescind a s.140 order is not is a chance to re-litigate the s.140 judgment itself. At para. 19 of the Judgment, this court wrote:

Finality is itself a principle of justice, integral to the civil justice system. And Ms Atas’ record as a litigant has been inconsistent with this basic principle.

The motion currently before the court is eloquent testament that Ms Atas has learned nothing from the s.140 process. The motion is an attempt to re-litigate aspects of the Judgment, and nothing more. Having been denied leave to appeal at the Supreme Court of Canada, Ms Atas asks to be permitted to start all over again. As such, Ms Atas’ request is, once again, inconsistent with the basic principle of finality.

Stated Basis for Ms Atas’ Proposed Motion

[6] In her notice of motion, Ms Atas describes the basis for her motion as follows:

(a) Justice Corbett’s vexatious litigant order is an injunction order. The terms are unacceptably broad and imprecise and have and have been interpreted by Justice Corbett in his case management endorsements with implied terms on what his vexatious litigant order was intended to be (para. 4).

(b) The vexatious litigant Judgment dated January 3, 2018 as issued and entered, contains language with undefined terms that are unacceptably broad and imprecise (para. 5).

(c) Justice Corbett was not clear on the language and terms of his own vexatious litigant Judgment dated January 3, 2018 (para. 6).

(d) The Superior Court cannot in the absence of clear and convincing legislation affect the appellate jurisdiction to review orders of the Superior Court. Justice Corbett has made case management orders denying permission and granting permission to appeal his contempt orders and in doing so has affected the review of his own orders by an appellate court (para. 7).

(e) Justice Corbett was still unclear about the terms of his own vexatious litigant order even after he had already made case management orders denying leave to appeal his own contempt orders made in the face of the court (para. 8).

(f) Justice Corbett’s many case management endorsements repeatedly refer to “Chavali permission” or “Chavali request” or “Chavali process” with warning of citation for contempt for breach of this requirement although no such language as “Chavali permission” or “Chavali request” or “Chavali process” is stipulated in the vexatious litigant Judgment (para. 9).

(g) Bankruptcy and Insolvency Act: Rule 77.02(2)(i) of the Rules of Civil Procedure prohibits case management of actions and applications under the Bankruptcy and Insolvency Act (para. 10).

(h) Justice Corbett vexatious litigant Judgment Paras 2-6 interpreted with implied terms (sic) (para. 11).

(i) The broad and imprecise language in the vexatious litigant Judgment is a violation of Canadian Charter of Rights and Freedoms (para. 12).

[7] A simple review of the grounds listed for the appeal makes it clear that Ms Atas believes that the Judgment is wrong and that various other decisions of this court interpreting and applying the Judgment are wrong. There are no new facts. There are no new claims. Ms Atas wants to revisit the Judgment and its application to her. That is all.

[8] The Judgment was upheld by the Court of Appeal (2019 ONCA 359). Ms Atas’ motion for leave to appeal to the Supreme Court of Canada was dismissed with costs (2020 29393). The s.140 application is over. The Judgment stands as authoritative. Ms Atas may not challenge it in court any more.

[9] Ms Atas’ motion for permission to apply under s.140 of the CJA to rescind the Judgment fails on all bases:

(a) Ms Atas has not identified a proceeding she wishes to bring, or a step in a proceeding that she wishes to bring, that has the slightest merit.

(b) Ms Atas has not addressed the extent, if any, that she or her company have satisfied the outstanding costs orders against them. I am aware that Ms Atas has made an assignment in bankruptcy. As of today, I am not aware of her having been discharged from bankruptcy; the latest communications to the court from the trustee in bankruptcy advises that the trustee will oppose a discharge because Ms Atas has not met her obligations in the bankruptcy process.

(c) Ms Atas did not include a copy of the reasons for the Judgment or the formal Judgment itself. The former is available to the court; the latter is not. I would have required Ms Atas to send a copy of the formal Judgment if it was not clear on the face of the materials Ms Atas did provide that her request is without any proper basis.

[10] Further, Ms Atas is not moving to commence a particular proceeding or to take a particular step in a proceeding – other than seeking an order rescinding the s.140 order. Ms Atas’ conduct, as a litigant, has continued vexatiously since the Judgment, and continues to be vexatious to this day. I have no doubt that Ms Atas would continue on a further course of vexatious litigation, if given the chance to do so, to the prejudice of any unfortunate persons who might become the target of her attention. I have no doubt that Ms Atas would absorb substantial court resources, to the detriment of the administration of justice, if she were once again loosed upon the justice system without constraints.

[11] This motion was a waste of Ms Atas’ time, a waste of judicial resources and an obvious abuse of process. The only good thing that can be said for it is that, because of the Chavali process adopted by this court in the reasons for the Judgment, and incorporated into the Judgment, responding parties were spared the time, expense, and vexation of having to receive, read and respond to Ms Atas’ request to bring the proposed motion.

[12] This endorsement is short but sufficient to explain to Ms Atas why she may not bring the motion she proposes. Future requests that are equally devoid of merit will likely be dismissed peremptorily.

[13] There is one other request from Ms Atas to take a step in a proceeding: some weeks ago, she asked that motions for summary judgment and default judgment taken under reserve by this court in December 2019 be re-opened so that she might adduce fresh evidence. She has now requested a case management conference to consider her request. This request is denied. This court’s reasons for this denial will be included in this court’s decision on the outstanding motions under reserve. As this court advised the parties at the time those motions were taken under reserve, the parties should not expect a decision from this court on those motions before September 2020.

[14] Ms Atas is reminded that she may not appeal this decision without first obtaining permission from the case management judge to do so. Ms Atas bridles at the circularity of a process in which this court decides requests made by Ms Atas and then controls her access to appellate review of this court’s decisions. There are very few situations in which such a process would be permitted. Controlling a vexatious litigant like Ms Atas from consuming scarce court resources in wholly fruitless and vexatious litigation is one of the very rare circumstances where such tight control is necessary: there is simply no reason for another jurist to spend any time or trouble on these matters.

[15] The court has endorsed its fiat on this endorsement this day; the unsigned version distributed to the parties today has the authority and effect of the signed version, a copy of which will be provided to the parties in due course after the suspension of ordinary court operations is lifted.

D.L. Corbett J.

Date: June 3, 2020