Executive Summary: Key Legal and Evidentiary Issues

• The application turned on whether Anwar Ul Haq Abid could obtain leave to file a Proposed Counterclaim years after the standard filing deadline had passed.
   
• Justice Taylor considered whether a prior Notice of Discontinuance against the Realtor Respondents should be set aside to prevent an injustice.
   
• Evidence of a settlement agreement negotiated between counsel bore directly on whether the discontinuance had been properly authorized.
   
• Affidavits from Abid and his former lawyer, Affan Bajwa, conflicted over whether instructions were given to discontinue the third party claims.
   
• Expired limitation periods and an unexplained near two-year delay weighed against permitting the counterclaim against the Realtor Respondents.
   
• Whether an unproven suggestion that a lawyer gave false evidence justified an award of special costs was also in dispute.
   

Facts of the case

The plaintiffs, John Harold Enns and Lorna Mae Enns, commenced this action on March 6, 2024, alleging that the defendant, Anwar Ul Haq Abid, breached a contract of purchase and sale dated January 11, 2022 for a residential property in Surrey, BC. The plaintiffs alleged the purchase price was $1,850,000, that Abid was required to pay a $100,000 deposit, and that completion (originally set for June 30, 2022) was extended by addendum to August 8, 2022. According to the plaintiffs, Abid failed to complete on August 8, 2022, which they characterized as repudiation; they say they then relisted and sold the property on October 27, 2022 for $1,300,000, resulting in a loss and additional damages. On May 8, 2024, Abid filed a response to the claim and, at the same time, a Third Party Notice against Jinder Jhajj and Sunny Awais (the "Realtor Respondents"), the realtors originally retained by the plaintiffs. That notice, amended July 3, 2024, alleged an implied agency between Abid and the Realtor Respondents, misrepresentations about securing financing, and related claims for contribution or indemnity. The Realtor Respondents disputed these allegations in a July 11, 2024 reply. On August 7, 2024, Abid filed a Notice of Discontinuance withdrawing the Amended Third Party Notice; Abid later deposed that his then-lawyer, Affan Bajwa, filed it without his knowledge or consent. On September 16, 2025, Abid filed an Amended Response to the claim repeating similar allegations against the Realtor Respondents. Abid then applied for leave to file a Proposed Counterclaim naming both the plaintiffs and the Realtor Respondents, advancing claims essentially identical to those in the discontinued Third Party Notice, and for an order setting aside the Notice of Discontinuance. The Realtor Respondents opposed the application; the plaintiffs took no position.

Policy terms or contractual clauses at issue

No insurance policy was involved. The relevant instrument was the January 11, 2022 contract of purchase and sale, under which Abid was to pay a $100,000 deposit and complete the purchase by the extended date of August 8, 2022. Beyond the underlying contract, the application turned on several procedural rules under the Supreme Court Civil Rules. Rules 6-1(1)(b) and 22-4(2) permit pleadings to be amended with leave and allow the court to extend or abridge time limits. Rule 3-4(1) sets a 21-day deadline, running from the filing of the notice of civil claim, for filing a counterclaim; here, that deadline had expired almost two years before the application. Rule 9-8 governs discontinuance and withdrawal, including its application to third party proceedings, and informed the court's assessment of whether the earlier discontinuance could be undone.

Reasoning and analysis

Justice Taylor applied the established test that amendments should be refused only if it is "plain and obvious" they are bound to fail, and considered the further factors from prior authority governing extensions of time to file a counterclaim, including the length of and reasons for delay, the connection to the existing claim, and prejudice to each side. Three considerations led the court to conclude the Proposed Counterclaim against the Realtor Respondents was bound to fail. First, on the discontinuance issue, the court found that Abid's lawyer, Bajwa, had negotiated a binding settlement agreement with counsel for the Realtor Respondents in June and July 2024, under which Abid would discontinue the third party claims in exchange for a waiver of costs; correspondence between counsel confirmed this exchange was accepted. Applying the principle that a solicitor's settlement authority binds the client absent a communicated limitation, the court held Abid was bound by this agreement. Bajwa's affidavits, supported by contemporaneous time entries from his firm's billing system, showed he met with Abid on July 22, 2024 and received instructions to discontinue, undermining Abid's bare denial of authorization. Second, the court noted Abid had not explained the near two-year delay in advancing the claims against the Realtor Respondents, and that the applicable limitation periods for those claims had expired by August 2024 or earlier. Third, the court found no prejudice to Abid in refusing the amendment, since any fault of the Realtor Respondents (as agents of the plaintiffs) could still be raised as a full defence to the plaintiffs' claim, making a separate counterclaim against them unnecessary. By contrast, the court found it was not plain and obvious that the Proposed Counterclaim against the plaintiffs was bound to fail, and noted the absence of the same delay problem, since Abid's Amended Response had raised similar facts back in 2024. On costs, the court declined to award special costs against Abid despite his suggestion that Bajwa's affidavit evidence was inaccurate, reasoning that an unproven allegation directed at a witness's evidence, rather than an accusation of dishonesty against a lawyer acting in that capacity, did not meet the threshold for special costs.

Ruling and overall outcome

Abid's application was dismissed as against the Realtor Respondents but allowed as against the plaintiffs: he was denied leave to set aside the Notice of Discontinuance or pursue the counterclaim against the Realtor Respondents, but was granted leave to file and serve the Proposed Counterclaim against the plaintiffs. The Realtor Respondents, having been substantially successful, were awarded costs of the application to be assessed at Scale B — the decision does not specify a dollar amount, so the monetary component of this ruling is Not Specified. The Realtor Respondents' request for special costs was refused.