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Appeal Court Dicta

Contempt - Right to Silence

. Caplan v. Atas [see the main link for numbered case cites]

In Caplan v. Atas (Sup Ct, 2021) the Superior Court finds a new tort, that of 'internet harassment'.

In these quotes the court considers whether the alleged harasser is prejudiced with respect to her right to silence (here in contempt proceedings) by being compelling to participate in the related defamation proceedings:
(i) The Right to Remain Silent

[183] Atas took the position that the Defamation Proceedings should be stayed until the contempt proceedings are tried. She argued that either her defence of the Defamation Proceedings would be prejudiced by her exercise of her right to silence in the contempt proceedings, or her right to silence would be infringed by the requirement in the Defamation Proceedings that she “put her best foot forward” on the motions for summary judgment.

[184] This issue was raised by Atas on May 31, 2019 during a case management conference. This court recognized that the issue raised by Atas had sufficient merit to warrant a motion, and the court set terms by which Atas could move for a stay or other relief in the alternative. Atas failed to bring the motion in accordance with the court’s case management directions, or at all. By the return date of the motions for summary judgment in November 2019, Atas had still not brought this motion. When argument was not completed as scheduled, and argument was adjourned to be completed eventually on December 11, 2019, Atas had still not brought a motion for a stay on this basis.

[185] While this court is aware of the ongoing contempt proceedings, it has no evidence before it of the state of those proceedings, the prejudice that could be caused to Atas’ defence of those proceedings if she is required to defend the Defamation Proceedings, the practical effect of Atas’ defence of the Defamation Proceedings on her right to remain silent in the Contempt Proceedings, or the extent to which any prejudice to her right to remain silent could be ameliorated by a protective order in the Defamation Proceedings. This court has no record on which it could review the extraordinary delays in the Contempt Proceedings and the extent to which Atas has used the delay in those legal proceedings to continue to publish defamatory and harassing publications on the internet. In short, this court has no record upon which it can adjudicate a motion for a stay – a motion that was never brought in any event, despite the court giving directions so that the motion could be brought.

[186] In all the circumstances, whatever merit there may have been to Atas’ request for a stay or other relief to protect her right to silence, she is foreclosed from raising that issue on these motions because of her failure to bring the required motion.


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