Court File and Parties

COURT FILE NO.: CV-20-645236 DATE: 20220505 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sadiqullah Kakar and Bilal Halal Chicken and Pizza, Plaintiffs AND: Ahmed Musa Popal and Mecca Halal Pizza, Defendants

BEFORE: W.D. Black J.

COUNSEL: Zaheed Moral, for the Plaintiffs Alamgir Hussain, for the Defendants

HEARD: May 3, 2022

Endorsement

[1] The plaintiffs move for summary judgment, seeking enforcement of a non-competition agreement between the parties, and compensation flowing from that agreement.

[2] Unfortunately, on the morning of the day on which the motion was scheduled to proceed in the afternoon (May 3, 2022), in response to an inquiry about why the defendants had uploaded no materials to Caselines, Mr. Hussain advised that his firm had made attempts to be removed from the record, and that he had no instructions to take a position on the motion.

[3] Prudently, Mr. Hussain attended at the time scheduled for the motion.

[4] He confirmed the information in paragraph 2 above, but also confirmed that he had experienced difficulty serving the individual defendant, his client, with any materials. It was apparent that there is no evidence to show that the individual defendant is aware of the motion proceeding today.

[5] In the circumstances, I advised counsel that, absent evidence that the defendants are aware of this motion, I have no choice but to adjourn the motion.

[6] I advised Mr. Hoque, who appeared from Mr. Moral’s office, that the motion can be brought back on, but that in the meantime:

(a) Mr. Hussain is to immediately bring a motion to remove his firm as lawyers of record for the defendants;

(b) Mr. Hussain is to ensure that his erstwhile client is aware of this pending motion, and of the need to engage new counsel to deal with this matter;

(c) Mr. Hoque and Mr. Moral are to revisit and reconsider the materials on this motion. Among other items, I pointed out to Mr. Hoque that in my view, the materials are deficient in the evidence concerning the similarities of the two businesses, which is an important factor arising from the non-competition agreement. While I did not purport to advise Mr. Hoque about how to draft the materials, I did convey that I would have been hesitant to grant the relief sought on the basis of the materials as they are, even if the motion had been unopposed.

[7] Matters were left on the basis that the steps contemplated above would be taken, all with a view to ensuring that there is a proper motion before this Court, and that the defendants are aware of the motion and have an opportunity to engage and instruct new counsel if they wish to do so.

[8] At that point, at the end of the proceedings, Mr. Hoque advised the Court that there had been a previous endorsement of Justice Myers in this matter in January of this year, containing quite similar directions.

[9] That endorsement had not been included in the materials uploaded by the plaintiffs for the motion, so Mr. Hoque volunteered to upload the endorsement.

[10] In reviewing the endorsement (once it was uploaded, following the motion), it is clear that at the time of the attendance before Justice Myers (in Civil Practice Court), Mr. Hussain had an appointment on March 25, 2022 for a motion to be removed as counsel of record. While not addressing the matter as specifically as that, Mr. Hussain advised during the attendance before me that the removal motion had been booked by his former associate, who had then left the country such that, perhaps, nobody had attended at the appointed time.

[11] This kind of half-baked approach to Justice Myers’ direction is not acceptable. Mr. Hussain was or ought to have been aware of the date booked for the removal motion. As set out above, Mr. Hussain is to take immediate steps to deal with that motion, and I expect that this Court will not look favourably on any further failures or excuses relative to that motion. If Mr. Hussain is getting off the record he needs to do so forthwith, and every effort must be made to notify the defendants of that step and of the plaintiffs’ motion (which I have adjourned today).

W.D Black J. Date: May 5, 2022