Court File and Parties

COURT FILE NO.: CV-19-80261 DATE: 20190626 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SAMAD HOVEYDA, Plaintiff AND MARK ALBERT ROBERT KAIRALLAH HABIB, Defendant

BEFORE: Mr. Justice Robert N. Beaudoin

COUNSEL: Joseph Obagi, for the Defendant

HEARD: By Requisition

Endorsement

[1] This matter was referred to me by the Registrar pursuant to Rule 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 upon receipt of a requisition by counsel for the Defendant, Mark Habib (“Habib”). They seek an order under sub-rule 2.1.01(1) dismissing this action as the Statement of Claim appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court. They note a parallel request in action number CV-19-80260.

[2] I have reviewed the Statement of Claim in this matter. The Plaintiff, Samad Hoveyda (“Hoveyda”), seeks damages for shock and mental stress to his health as a result of a breach of an agreement of purchase and sale of Hoveyda’s property at 421 Nelson Street in Ottawa.

[3] Hoveyda purchased the property in 2004, and at that time, the property complied with the relevant zoning bylaws. Hoveyda decided to sell the property in 2016. He retained Sarazen Realty Ltd. (“Sarazen”) to list the property for sale. The Statement of claim goes on at some length to detail Hoveyda’s complaints against Sarazen, its owner, and the sales agent, Mohammed Sleiman. There is a reference to litigation involving those individuals and excerpts from the examinations for discovery in that proceeding are set out in the pleading.

[4] The first reference to Habib is at page 20, paragraph 83 of the Statement of Claim. It alleges that Habib acted for the prospective purchaser, Hamati. Hoveyda’s chief complaint against Habib is that Habib would have advised Hamati against proceeding with the agreement of purchase and sale because the property was not as described in the MLS listing.

[5] In the related action, another lawyer, Christopher A. Moore, is described as counsel for Hamati. It may be that Mr. Moore’s involvement is related solely to the litigation and not the sale transaction itself.

[6] At all times, Habib was Hamati’s lawyer. He owed no duty of care to the vendor, Hoveyda. Hoveyda may have a remedy against the purchaser or against Sarazen, but not against Habib.

[7] This action, on its face, appears to be frivolous, vexatious, and an abuse of the court’s process, and the attenuated procedure available under Rule 2.1 is appropriate.

[8] I therefore make the following orders:

• Pursuant to sub-rule 2.1.01(3)(1), the Registrar is directed to give notice to the Plaintiff in Form 2.1A that the Court is considering making an order under sub-rule 2.1.01 dismissing the action;
• Pending the outcome of the written hearing under Rule 2.1 or further order of the court, the Plaintiff’s action is stayed pursuant to section 106 of the Courts of Justice Act, R.S.O. 1990, c. C. 43;
• The Registrar shall accept no further filings in this action excepting only the Plaintiff’s written submissions if delivered in accordance with sub-rule 2.1.01(3);
• In addition to the service by mail required by sub-rule 2.1.01(4), the Registrar is to serve a copy of this Endorsement and a Form 2.1A notice on the Plaintiff and counsel for the Defendants by email if it has their email addresses.

Mr. Justice Robert N. Beaudoin Date: June 26, 2019

COURT FILE NO.: CV-19-80261 DATE: 20190626 ONTARIO SUPERIOR COURT OF JUSTICE RE: SAMAD HOVEYDA, Plaintiff AND MARK ALBERT ROBERT KAIRALLAH HABIB, Defendant BEFORE: Mr. Justice Robert N. Beaudoin HEARD: By requisition ENDORSEMENT Beaudoin J. Released: June 26, 2019