COURT FILE NOS.: CV-10-400035, CV-16-544153, CV-18-594948, CV-18-608448
DATE: 20210805
ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-10-400035
B E T W E E N:
STANCER GOSSIN ROSE LLP
Gary Michael Caplan and Rebecca Longpré
for the Plaintiffs
Plaintiffs
- and -
NADIRE ATAS and JANE DOE
Nadire Atas self-represented
Defendant
COURT FILE NO.: CV-16-544153
B E T W E E N:
DALE & LESSMAN LLP, ROBERT E.
Gary Michael Caplan and Rebecca Longpré
DALE, DAVID E. MENDE, CHRISTINA
for the Plaintiffs
J. WALLIS, KAGAN SHASTRI LLP,
RAHUL SHASTRI, DAVID WINER,
STANCER GOSSIN ROSE LLP,
RAYMOND STANCER, ERIC GOSSIN,
MITCHELL ROSE, GARTH DINGWALL,
and RALPH STEINBERG, J. DAVID
SLOAN, PEOPLES TRUST COMPANY,
DEREK PEDDLESDEN, FRANK RENOU,
MARTIN MALLACH and SHARON
SMALL
Plaintiffs
- and -
NADIRE ATAS
Nadire Atas self-represented
Defendant
COURT FILE NO.: CV-18-594948
B E T W E E N:
DR JOSEPH CAPLAN, DEREK LUTH,
Gary Michael Caplan and Rebecca Longpré
YAHEL NOV, JONATHAN MICHAEL
for the Plaintiffs
STANCER, CHARLES ADAM STANCER,
RAYMOND STANCER, TOM PIRES and
NELLA PIRES
Plaintiffs
- and -
NADIRE ATAS
Nadire Atas self-represented
Defendant
COURT FILE NO.: CV-18-608448
B E T W E E N:
GUY BABCOCK, LUC GROLEAU, JULIA
Gary Michael Caplan and Rebecca Longpré
GROLEAU, MARC GROLEAU, SHU
for the Plaintiffs
GUANG SHEN, REBECCA HAUFE,
ANDREW HAUFE, KATHERINE BRNJAC,
TOM BABCOCK, RAMONA HELM, JOHN
BABCOCK, MILA BAIER, SHAWN
MURRAY AND AGNIESZKA MURRAY,
PRESTON SCHMIDT, BRANDON
SCHMIDT, RALPH SCHMIDT, SARA
BASARA, JOHN BAIER, TONY LOCANE,
ALEXANDRA BORONDY, ALFONSO
COSENTINO and STEVE PROC[1]
Plaintiffs
- and -
NADIRE ATAS
Nadire Atas self-represented
Defendant
ALL HEARD: at Toronto April 16, 2021
CASE MANAGEMENT ENDORSEMENT
D.L. Corbett J.:
[1] This decision follows a judgment dated January 28, 2021 (2021 ONSC 670) and further endorsements from this court dated April 16, 2021 and April 23, 2021 (2021 ONSC 3085). The judgment was limited to defamatory publications known to the plaintiffs as of the time that the motions for judgment were argued before me (November 2019). In the wake of the decision, the plaintiffs provided the court with evidence of further publications allegedly coming to their attention and/or published after completion of argument in November 2019. The plaintiffs sought to have the formal judgment reflecting my decision dated January 28, 2021 include publications that were not in evidence at the time of the motions for summary judgment.
[2] I declined to proceed in this fashion. I concluded that relief in respect to additional publications should be addressed on motion pursuant to the judgment, to accord Atas an opportunity to respond to the further allegations. The plaintiffs served this motion on Atas. By May 28, 2021, Atas had not responded to the motion. In my endorsement dated May 28, 2021, I directed that Atas would have until June 11, 2021 to provide any responding materials.
[3] Atas did not provide responding materials by the deadline. However, her criminal counsel, Mr Slansky, contacted the court on June 25, 2021, with the following message to which was attached a document from Ms Atas:
I just received this indirectly from Ms. Atas. It appears to be directed to me on June 11. However, I did not receive it until today at 6:20 pm.
I do not know what this is about. However, Ms. Atas has asked me to forward it to you so that it can be provided to Justice Corbett.
It is not clear why Ms Atas would feel it necessary to send her materials to the court through the good offices of her criminal defence counsel, since she apparently transmitted the materials to her counsel by email. Be all of that as it may be, the court has received Atas’ submissions and will treat them as her response to the plaintiffs’ motion.
Overview
[4] The plaintiffs have presented evidence of ongoing harassment and defamation of them, and others, from the time the motions for summary judgment were heard to and after the date this court delivered judgment on January 28, 2021.
[5] Atas has not contested the central allegations in her response to the motion. She has not contested that the impugned publications were published on the internet. She has not contested that they are “of and about” the plaintiffs and other persons protected by the Judgment. She has not contested that the publications are defamatory and constitute internet harassment (as that term is used in the Judgment). She has not raised any argument as to why the plaintiffs and other persons protected by the Judgment should not be entitled to have these publications removed from the internet.
[6] As I explained in my prior endorsements referenced above in paragraph 1, the plaintiffs and others protected by the Judgment should not be required to engage in a years-long process to seek redress in respect to these publications. They have the benefit of the Judgment, and the publications they now seek to suppress are clearly an extension of the campaign of harassment and defamation that gave rise to the Judgment.
[7] In the Judgment I lamented the result of our legal process in the context of this case, which has seen Atas engage in a years-long campaign of malicious harassment using the internet. No reasonable person could possibly justify the conduct at issue here, as described fully in the Judgment, and as further illustrated in the mass of publications that are the subject-matter of the current motion.
[8] Atas did, however, make arguments opposing the plaintiffs’ motion. I shall deal with each briefly in the order in which they are presented in her submission.
1. The Court is functus officio
[9] Atas is correct that this court is functus officio respecting the claims decided in the Judgment. Those issues have been finally decided and this court will not reconsider them now. This court is not functus officio respecting enforcement of the Judgment.
[10] This point has been made to Atas before. I make it again in the current context. Atas was subject to interlocutory and interim injunctions up to the time of Judgment. Those orders were replaced with permanent injunctions. The court made ancillary orders in connection with the injunctive relief to enable persons entitled to the benefit of the orders to obtain relief if it appeared that the injunctions had been breached.
[11] The doctrine of functus officio does not operate personally. It is not a disability on the part of an individual judge. Rather, it is a disability in respect to the entire court: once the case has been decided and formal judgment has been rendered, the case is over. The court – writ large – may not re-enter into the dispute to adjudicate it anew. The court may, however, enforce court orders. And that is what is happening now. The Ontario Superior Court of Justice is not precluded by the doctrine of functus officio from deciding this motion, which is grounded in enforcement of the Judgment. I, as the trial judge, am under no greater disability enforcing the Judgment than is any other judge of this court.
2. Supplementary Judgment Not Available in Law after Judgment is Issued and Entered
[12] This argument is an alternate way of expressing the doctrine of functus officio. I explain why this argument does not succeed in the prior section of this endorsement.
3. Atas Has the Right to Remain Silent
[13] Atas is facing criminal prosecution for her conduct towards the moving parties. She does have a right to remain silent and, in particular, the right not to be compelled to self-incriminate. Mindful of this issue, the court directed that the motion not seek a finding that Atas is the author of the impugned publications. No such finding is sought and none shall be granted in this decision. Second, Atas purported to raise this issue during the main action and was told that, if she wished the proceedings stayed pending completion of her prosecutions for contempt of court, she would have to bring a motion seeking that relief. Atas knows that is what is required to obtain a stay – a motion, on proper materials, raising the issue. In that context, the court could consider devising protections for Atas while also protecting the legitimate interests of the moving parties. Atas did not bring such a motion and has not identified any basis on which her right to remain silent is prejudiced in light of the term imposed by this court that the issue of her authorship of the impugned materials not be decided in this motion.
4. The Purpose of the Orders Is to Imply that Atas is the Author of the Posts
[14] With respect, this argument lacks coherence. The issue of authorship is expressly not before this court, Atas has no need to respond to that issue, and so there can be no basis for anyone to say that the issue has been decided – either expressly or by implication.
[15] Could a reasonable person infer, from all the circumstances, that Atas is the author of the postings that are the subject-matter of the instant order? Of course. As a matter of common sense, such an inference could be drawn. That arises from the facts and circumstances, not from this court’s decision on this motion.
5. Court Lacks Jurisdiction in Respect to Non-Parties
[16] This argument is a restatement of Atas’ position that the court may not grant remedies respecting harassment and defamation of people who are not parties. This court decided that issue against Atas in the Judgment. Atas’ arguments to the contrary on this motion are a collateral attack on the Judgment and are improper.
6. Ulterior Purpose Is to Obtain Evidence Against Atas for the Criminal Proceedings
[17] I see no basis for this argument. The impugned publications are on the internet. For reasons explained in detail in the Judgment, the plaintiffs need orders from the court in order to have the publications removed from the internet. Justice demands that they be put in a position to have these posts removed. Whether information that comes to the attention of the moving parties or prosecutors as a result of this decision should be available against Atas in the criminal proceedings is a matter for a different court to decide on another day.
7. Counsel Has A Conflict of Interest
[18] Mr Caplan is a complainant in criminal proceedings against Atas. Atas argues that this puts Mr Caplan in a conflict of interest in pursuing the motion now before this court. For reasons given in the judgment and on prior occasions when Atas has challenged Mr Caplan’s role, Atas cannot get a lawyer removed from the record for an opponent through the expedient of attacking the lawyer tortiously, criminally, or by way of a professional discipline complaint to his regulator. To hold otherwise would reward the vexatious conduct that has been Atas’ hallmark throughout her litigation career.
8. Parties and Protected Parties Are Complainants in the Criminal Proceedings and thus have Conflicts of Interest
[19] This argument presupposes that someone who has been wronged profoundly may not seek civil and criminal justice at the same time. There is no conflict in doing both. The argument is without basis.
The “Kangaroo Court” Argument
[20] It is part of Atas’ modus operandi to heap abuse upon those with whom she disagrees. Her personal comments about this court as a “kangaroo court” (which she goes on to define and explain) – are naked abuse and not legal argument – and constitute contempt of court. Atas goes on to tar the Court of Appeal with the same brush (“only the court of appeal of Ontario would collude and uphold this judgment”).
[21] Atas has been cited for contempt several times by this court and has served a significant jail sentence for this reason. I go no further, in this instance, than to make the finding of contempt. If there is a repetition of this conduct before me – whether orally or in writing – Atas may expect to be cited for contempt again and required to show cause why she should not be committed to jail again.
Conclusion
[22] The moving parties have established a case for the requested order on a balance of probabilities. Atas has not contested the merits of the motion but instead has raised technical and procedural objections. Most of these objections are collateral attacks on the Judgment and prior endorsements. None of them provide a basis to oppose the requested order, which does no more than provide the moving parties with enforcement of the Judgment in respect to publications made or coming to their attention after the date on which the motions for judgment were argued back in 2019.
[23] Order to go in accordance with these reasons. The draft order provided by the moving parties does not reflect this decision – it is styled as a “Supplementary Judgment” (which this is not – it is an order following a motion to enforce terms of a Judgment and should simply be styled as an “Order”) and it makes findings of authorship which I have not made. Counsel may provide a draft order by email, in WORD format. A copy should be provided to Ms Atas by sending a copy by email to her criminal defence lawyer and mailing a copy to her at her address for service. Approval as to form and content is dispensed with.
D.L. Corbett J.
Released: August 5, 2021
COURT FILE NOS.: CV-10-400035, CV-16-544153, CV-18-594948, CV-18-608448
DATE: 20210805
ONTARIO
SUPERIOR COURT OF JUSTICE
D.L. Corbett J.
BETWEEN:
Dr Joseph Caplan et al.
Plaintiffs
- and –
Nadire Atas
Defendant
ENDORSEMENT
D.L. Corbett J.
Released: August 5, 2021