Court File and Parties
COURT FILE NO.: CV-19-00000615-0000 and CV-00000627-0000 DATE: 20220329
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Syed Hussaini, Plaintiff AND: Jessica Hano and Daniel Hano, Defendants
BEFORE: The Honourable Justice Van Melle
COUNSEL: C. Madison, for the Naimark Law Firm Mr. Syed on his own behalf and on behalf of Ms. Fatima No one appearing for the defendants
HEARD: March 29, 2022
E N D O R S E M E N T
[1] Plaintiff’s counsel moves for an order removing Naimark Law Firm from the record and for a charging order in this file and in a companion action CV-19-000000627-0000 between Mr. Syed’s wife Tahniya Fatima and son Rayan Syed and the same defendants. This endorsement relates to both matters.
[2] Mr. Syed appears today resisting the motion. He does not consent to Naimark Law Firm being removed from the record and wishes Mr. Naimark to continue to act on his behalf, and he resists the request for a charging order.
[3] Much of the material relied upon for this motion is sealed to protect Mr. Syed. Having reviewed the detailed affidavit from Mr. Naimark and Michael Greco, I am satisfied that the solicitor client relationship has broken down.
[4] Mr. Syed attempted to present his side of things orally at the motion. When advised that his evidence had to be presented by way of affidavit, he asked for an adjournment. Normally I would have permitted an adjournment for the purposes of filing materials. However, this motion was originally returnable September 24, 2021. A lawyer purporting to act on behalf of Mr. Syed requested an adjournment to October 20, 2021, which was granted on consent. Subsequently the motion was adjourned to January 14, 2022.
[5] On January 14, 2022 Justice Dennison wrote in part:
This morning the Plaintiff, Mr. Hussaini emailed counsel a notice of intention to represent himself. There is not a similar email for Ms. Fatima.
In addition, Mr. Hussaini emailed a notice of objection either later yesterday or this morning to the trial office and Counsel. In this notice of objection, Mr. Hussani states that he is medically incapable of proceeding nor does he have the financial means to proceed via Zoom and he asks to proceed in person due to his mental heath.
At 10:26 a.m., Mr. Hussaini sent counsel another email saying that he tried to log onto Zoom numerous times without success. The registrar confirmed for the court that no one was logged on that was not admitted.
Ms. Fatima, the Plaintiff in the companion action has an email of ttfatima9786@gmail.com.
This morning an email was sent to counsel stating that Ms. Fatima she is illiterate and doesn’t know technology and only understands Urdo. She cannot express all her torture resulting from the law firm. She did not attend the motion either.
I strongly believe that Mr. Hussaini and Ms. Fatima are playing games this is yet another delay tactic by the Plaintiffs to delay the motion. The Plaintiffs never raised any concern about proceeding by Zoom on the prior Motion date in September 2021 or any other time aside from this morning. I was also advised by counsel that the Plaintiffs had tribunal hearings scheduled via Zoom for June 23 and June 28, 2021. Although those proceedings were adjourned, there was no issue ever raised that the Plaintiffs could not appear via Zoom. These hearings were rescheduled to proceed via Zoom in the summer of 2022.
The Plaintiff, Mr. Hussaini, has communicated almost exclusively with Counsel regarding this motion via email. Admittedly Mr. Hussaini often communicates on behalf of his wife, Ms. Fatima.
Numerous emails were sent this morning showing that both Plaintiffs have some technological experience. It is also clear that the Plaintiffs either has access to a cell phone or a computer. There is no cost associated with the use of the Zoom platform and no indication that Plaintiff does not have access to WIFI given the numerous communications online.
[6] Today Mr. Syed again asks for this matter to be delayed so that he can prepare and file affidavit evidence. In light of the history of this matter, I find that Mr. Syed has had plenty of opportunity to file responding materials if he wished to do so.
[7] He actually signed a Notice of Intention to Act in Person and agreed that it be filed with the court. He has no basis now upon which to insist that Mr. Naimark continue to act for him.
[8] I find that Mr. Naimark is entitled to a charging order. The basis for the charging order is not challenged. Mr. Syed’s only comment in that regard is that he feels the account is too high. He says he would be prepared to pay a “reasonable” amount.
[9] In reviewing the retainer signed by Mr. Syed, it clearly sets out that the client is entitled to assess the accounts rendered. There is nothing to stop Mr. Syed from having the account assessed if he wishes to do so.
[10] I find that Mr. Naimark is entitled to costs. A costs’ outline has been provided. He seeks costs on a substantial indemnity basis in the amount of $12,000.00. In court I opined that $8,000 would be more appropriate, however, given that the account appears to relate to the two files and given the plaintiff’s behaviour, I award costs of $10,000 all inclusive, payable $5,000 on this file and $5,000 on CV-19-00000627-0000.