IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Babich v. Urban Land Holdings Ltd.,  
2022 BCSC 1070  
Date: 20220627  
Docket: S228426  
Registry: New Westminster  
Between:  
And  
Earl Steven Babich  
Plaintiff  
Urban Land Holdings Ltd, Adnan Habib,  
Baker Newby LLP All Partners and Managing Partners, Terry Sidhu,  
Sidhu and Associates Real Estate and Notory Services,  
Terry Sidhu National Services Inc., David Tsen,  
David Tsen Personal Real Estate Corporation,  
Sutton West Coast Realty Corporation, Sunny Alhua,  
Her Majesty the Queen in the Right of the Province of British Columbia,  
Her Majesty the Queen in the Right of Canada,  
Land Title and Survey Authority of Bitish Columbia (LTSA), Allen Ralph Sello,  
Monique Jacqueline Babich aka Monique Jacqueline Sello,  
Janneke Lewis, North Shore Law Group LLP,  
Canadian Imperial Bank of Commerce, Phuoc Hon Vo, Viet Phuoc Vo,  
Sutton Group Alliance R.E.S., Jag Sidhu,  
Jag Sidhu Personal Real Estate Corporation, Sandeep S. Gill,  
Keystone Law Group, Nicholas T. Hooge, Farris LLP, Cinthya Nunez  
Defendants  
Before: The Honourable Madam Justice Hardwick  
Reasons for Judgment  
For the plaintiff:  
No appearance  
Babich v. Urban Land Holdings Ltd.  
Page 2  
Counsel for the defendants Urban Land  
Holdings Ltd., T. Sidhu, Sidhu and  
Associates Real Estate and Notary  
Services, and Terry Sidhu National Services  
Inc.:  
B. Grootendrost  
Counsel for the defendants A. Habib, Baker  
Newby LLP All Partners and Managing  
Partners, Janneke Lewis, North Shore Law  
Group LLP, S.S. Gill, Keystone Law Group,  
N.T. Hooge, Farris LLP and C. Nunez:  
C.N. Wong  
Counsel for the defendants D. Tsen, Sutton  
West Coast Realty Corporation, and  
S. Alhua:  
S.J. Gladders  
T. Bant  
Counsel for the defendant Her Majesty the  
Queen in the Right of the Province of British  
Columbia:  
Counsel for the defendant Land Title and  
Survey Authority of British Columbia  
(LTSA):  
J. Harman  
Appearing on his own behalf:  
Appearing on her own behalf:  
A.R. Sello  
M.J. Babich a.k.a. M.J. Sello  
J. Uswak  
Counsel for the defendants Canadian  
Imperial Bank of Commerce:  
Counsel for the defendants Sutton Group  
Alliance R.E.S., J. Sidhu, and Jag Sidhu  
Personal Real Estate Corporation:  
A.J. Peck  
Place and Date of Trial/Hearing:  
Place and Date of Judgment:  
Kelowna, B.C.  
April 28, 2022  
Kelowna, B.C.  
June 27, 2022  
Babich v. Urban Land Holdings Ltd.  
Page 3  
Table of Contents  
THE GENERAL FACTUAL BACKGROUND ............................................................ 4  
THE NOTICE OF CIVIL CLAIM................................................................................. 5  
THE INVOLVEMENT OF THE DEFENDANTS AS DETAILED IN THE PLEADINGS  
................................................................................................................................... 6  
PROCEDURAL STATUS .......................................................................................... 9  
SERVICE OF THE APPLICATION MATERIALS.................................................... 10  
SUMMARY OF THE APPLICATIONS..................................................................... 11  
THE COURT OF APPEAL PROCEEDINGS ........................................................... 13  
RULES 9-5(1) AND 9-6 OF THE SUPREME COURT CIVIL RULES...................... 16  
THE LAW CONSIDERING RULE 9-5(1) OF THE SUPREME COURT CIVIL RULES  
................................................................................................................................. 17  
ADDITIONAL LAW RELEVANT TO THE APPLICATIONS.................................... 19  
THE LAW CONSIDERING RULE 9-6(5) OF THE SUPREME COURT CIVIL RULES  
................................................................................................................................. 20  
ANALYSIS REGARDING THE APPLICATIONS .................................................... 21  
THE CLAIMS AGAINST THE REMAINING DEFENDANTS................................... 26  
COSTS .................................................................................................................... 26  
Babich v. Urban Land Holdings Ltd.  
Page 4  
[1]  
Nine separate applications were before the Court on April 28, 2022, brought  
by substantially all of the multiple defendants in this multi-party proceeding.  
[2]  
As indicated to counsel at the conclusion of the applications, given the  
number of applications before the Court and the slight nuances between the  
positions of some of the defendants, I reserved my decision. I have also, as set out  
below, specifically considered the issues of service in light of the fact the plaintiff,  
Earl Steven Babich (the “plaintiff”) elected not to appear at the hearing.  
The General Factual Background  
[3]  
This action has its genesis in two separate but related proceedings in this  
Court involving the plaintiff, his former spouse, Monique Jacqueline Sello (formerly  
Babich), who is also a respondent in this proceeding, and the former family home  
located at 10990 Sylvester Road in Mission, British Columbia (the “Property”). Those  
two prior proceedings are:  
a) British Columbia Supreme Court, Vancouver Registry, Action E170043,  
commenced January 6, 2017 (the “Family Action”); and  
b) British Columbia Supreme Court, Chilliwack Registry, Action S33745,  
commenced January 9, 2018 with the style of cause Urban Land Holdings  
Ltd. v. Babich (the “Foreclosure Petition”).  
[4]  
The claims in the Family Action were settled by consent. The terms of the  
settlement were set forth in a final order made September 6, 2019 by Mr. Justice  
Basran (the “Final Order”).  
[5]  
The Foreclosure Petition has a protracted litigation history, including  
proceedings before the Court of Appeal. Ultimately, after the appeal was dismissed,  
the Property was sold by court ordered sale to Phuoc Hon Vo and Viet Phuoc Vo.  
The history of the Foreclosure Petition is laid out very succinctly in the reasons for  
judgment of the Court of Appeal, which I will return to later.  
 
Babich v. Urban Land Holdings Ltd.  
Page 5  
The Notice of Civil Claim  
[6]  
The notice of civil claim (the “NOCC”) was filed by the plaintiff on June 24,  
2020. There are 28 named Defendants.  
[7]  
Paragraph 5 of Part 1 of the NOCC sets out the material facts, which  
allegedly support a cause of action entitling relief against all of the defendants.  
Paragraph 5 provides as follows:  
All parties named in this as defendants in this action have directly acted in a  
manner of negligence, professional negligence and/or have taken action or  
non action causing damage to the plaintiff the specifics of the actions shall be  
listed in Schedule A. As pronounced n [sic] Affidavit #12 File No S33745 I am  
being smothered and suffocated by the legal actions and I Cant Breathe”  
[8]  
The relief sought by the plaintiff in the NOCC is expansive in nature. It firstly  
seeks the return of title to the Property to the plaintiff and revision of all court orders  
alleged to have caused financial and emotional damages to the plaintiff. In the  
alternative, damages of in excess of $3,000,000 are sought.  
[9]  
For the benefit of clarity, the specific relief sought by the plaintiff, as plead in  
Part 2 of the NOCC, is as follows:  
1.  
2.  
Return the plaintiff to be the rightful title holder of the matrimonial  
property landsat 10990 Sylvester Road Mission, BC PID 010-813-  
080  
Revise all court orders causing financial and emotional damages to  
the plaintiff including reversing all court costs awarded to Urban Land  
Holdings Ltd caused by Master Keighley and Justice Ross and all  
other costs against Earl Babich in the Supreme Court of British  
Columbia and BC Court of Appeal.  
Further and in the alternative the relief below:  
3.  
4.  
$398,500 in direct compensation being the actual value of the  
difference between the value of the property of $1,600,000 for the  
period of December 2, 2019 to March 2, 2020 pursuant to Appraisal  
Report and the price of $1,201,500 of the Contract Of Purchase and  
Sale of December 15, 2019 presented by the Vo brothers.  
Pecuniary losses, non-pecuniary damages, monetary damages,  
punitive damages to return the plaintiff to the position he would have  
been in prior to May 2018 and or before the criminal action and  
compounding actions not been committed.  
 
Babich v. Urban Land Holdings Ltd.  
Page 6  
5.  
6.  
Compensation for future negative affects on the plaintiff, and  
damages to reputation and credit.  
Opportunity costs of $1,000,000 for the plan completing the approved  
subdivision of the lands pursuant to the Ministry of Transportation and  
Infrastructure Subdivision Approval dated July 31, 2019.  
7.  
Opportunity costs of $2,000,000 for the future proposed subdivision  
into 6 lots of 2.5 acres supported by the geotechnical report on file  
with the Ministry of Transportation and Infrastructure and discussed  
with the officers of the Ministry which includes a 15% margin on the  
construction and sale of the additional homes to the property over the  
next few years.  
8.  
9.  
Direct moving costs if plaintiff is forced to vacate the lands.  
Loss of income from the loss of business activities operating on the  
landsand the loss of income for the period of time of flux if the  
plaintiff is forced to vacate the lands”.  
10.  
Costs of this proceeding.  
The Involvement of the Defendants as Detailed in the Pleadings  
[10] As indicated above, the material facts supporting the alleged connection  
between the multiple defendants and the cause of action are asserted in paragraph  
5 of the NOCC and the relief sought is set forth in Schedule A of that document.  
Schedule A of the NOCC is attached as Appendix A to these reasons for judgment.  
[11] As it relates to the defendants who have brought applications before this  
Court, their involvement can be very briefly summarized as follows:  
a) Urban Land Holdings Ltd. - held a second mortgage registered against the  
Property and was the petitioner in the Foreclosure Petition;  
b) Adnan Habib - a lawyer with Baker Newby LLP who acted for Urban Land  
Holdings Ltd. at the material times in the Foreclosure Petition;  
c) Baker Newby LLP All Partners and Managing Partners - the law firm  
where Adnan Habib practiced at the material times;  
d) Terry Sidhu - executive with Urban Land Holdings Ltd.;  
 
Babich v. Urban Land Holdings Ltd.  
Page 7  
e) Sidhu and Associates Real Estate and Notary Services - although  
improperly named as no such entity exists, it is surmised that this refers to  
a real estate and notarial business of which Terry Sidhu is the operating  
mind. The only connection between this entity and the plaintiff is the  
common link of Terry Sidhu as this defendant was not involved directly  
with the Property in any way;  
f) Terry Sidhu National Services Inc. - although improperly named as no  
such entity exists, it is again surmised that this refers to a corporation of  
which Terry Sidhu is the operating mind. The only connection between this  
entity and the plaintiff is the common link of Terry Sidhu as this defendant  
was also not involved directly with the Property in any way;  
g) David Tsen - one of the real estate agents who marketed the Property  
after an order for conduct of sale was granted in the Foreclosure Petition;  
h) David Tsen Personal Real Estate Corporation - the personal real estate  
corporation controlled by David Tsen;  
i) Sutton West Coast Realty Corporation - entered into a Multiple Listing  
Contract with Urban Land Holdings Ltd. for the Property on or about  
March 8, 2019, after Urban Land Holdings Ltd. obtained conduct of sale in  
the Foreclosure Petition;  
j) Sunny Ahuja - one of the real estate agents who marketed the Property  
after an order for conduct of sale was granted in the Foreclosure Petition;  
k) Her Majesty the Queen in the Right of the Province of British Columbia  
(HMTQ (BC)) - involved in the operation of the British Columbia Supreme  
Court and the British Columbia Court of Appeal, which operation resulted  
in, inter alia, the closure of the courts in the early months of the COVID-19  
pandemic;  
Babich v. Urban Land Holdings Ltd.  
Page 8  
l) Land Title and Survey Authority of British Columbia (LTSA) - alleged to  
be the party that received and processed the vesting order made by  
Master Keighley in the Foreclosure Petition which resulted, pursuant to  
s. 312 of the Land Title Act, R.S.B.C. 1996, c. 250, in the transfer of the  
Property;  
m) Allen Ralph Sello - father of Monique Jaqueline Babich also known as  
Monique Jacqueline Sello and former father-in-law of the plaintiff;  
n) Monique Jaqueline Babich aka Monique Jacqueline Sello - the former  
spouse of the plaintiff. Formerly a co-owner of the Property prior to the  
Final Order made September 6, 2019 by Mr. Justice Basran;  
o) Janneke Lewis - lawyer with North Shore Law Group who acted for  
Monique Jaqueline Babich aka Monique Jacqueline Sello in the Family  
Action at the material times;  
p) North Shore Law Group LLP - the law firm where Janneke Lewis practised  
at the material times;  
q) Canadian Imperial Bank of Commerce (CIBC) - financial institution which  
employed a mortgage broker who the plaintiff consulted with during the  
course of the Foreclosure Petition;  
r) Sutton Group Alliance R.E.S. - managing brokerage for buyers agent for  
Phuoc Hon Vo and Viet Phuoc Vo in relation to the Property in the  
Foreclosure Petition;  
s) Jag Sidhu buyers agent for Phuoc Hon Vo and Viet Phuoc Vo in relation  
to the purchase of the Property in the Foreclosure Petition;  
t) Jag Sidhu Personal Real Estate Corporation buyers agent for Phuoc  
Hon Vo and Viet Phuoc Vo in relation to the purchase of the Property in  
the Foreclosure Petition;  
Babich v. Urban Land Holdings Ltd.  
Page 9  
u) Sandeep S. Gill - acted as the solicitor for Phuoc Hon Vo and Viet Phuoc  
Vo in relation to the purchase of the Property;  
v) Keystone Law Group - law firm where Sandeep S. Gill practiced at the  
material time;  
w) Nicholas T. Hooge - acted as counsel for Phuoc Hon Vo and Viet Phuoc  
Vo in relation to an application to court obtain vacant possession of the  
Property;  
x) Farris LLP - law firm where Nicholas T. Hooge practiced at the material  
time; and  
y) Cinthya Nunez - a former paralegal with Farris LLP who, in the course of  
her employment, swore an affidavit in relation to matters related to the  
application for vacant possession of the Property.  
[12] In addition to those defendants with the aforementioned applications before  
the Court there are three additional defendants, specifically:  
a) Her Majesty the Queen in the Right of Canada (HMTQ (Canada)) -  
although counsel appeared at the hearing on behalf of HMTQ Canada,  
they did so only on the basis of it being a watching brief and did not make  
submissions; and  
b) Phuoc Hon Vo and Viet Phuoc Vo (the Vo Defendants) - as indicated,  
these were the purchasers of the Property through the formal court  
ordered sale process in the Foreclosure Petition.  
Procedural Status  
[13] Since filing the NOCC on June 24, 2020, the plaintiff has taken no substantive  
steps to advance the action. Specifically, he has not delivered a list of documents,  
he has made no effort to arrange examinations for discovery of any of the  
defendants or their representatives, and no trial date has been set.  
 
Babich v. Urban Land Holdings Ltd.  
Page 10  
[14] On behalf of the defendants, some but not all of the defendants have served  
lists of documents. No demands for documents or particularized document requests  
have apparently been made by the plaintiff. None of the defendants have conducted  
an examination for discovery of the plaintiff.  
[15] The final point of significance procedurally that I will return to is that the  
plaintiff filed this proceeding with an address for service located at the Property.  
Despite the sale of the Property, the plaintiff has never taken steps to provide a  
notice of change of address which provided an alternate address for service.  
Service of the Application Materials  
[16] The plaintiff did not appear at the hearing on April 28, 2022, which was  
conducted via MS Teams. At the outset of the hearing of the applications, it was  
confirmed with Supreme Court Scheduling, via the clerk of the court, that the plaintiff  
had been provided with the MS Teams link for the hearing. Out of an abundance of  
caution, the plaintiff was also paged to determine whether he had attended at the  
New Westminster Courthouse in person for the applications. There was no response  
to the page.  
[17] In addition, as indicated above, I also asked each counsel or self-represented  
party to advise what steps had been taken to serve the plaintiff before commencing  
their substantive submissions as some but not all of the defendants had provided  
affidavits of service.  
[18] Many of the parties served the plaintiff at his address for service in the  
proceeding; namely, the Property. Having regard to the fact that the Property has  
been sold to the Vo Defendants and an order for vacant possession made, this  
might give rise for some concern even though the positive obligation is on the  
plaintiff under the Supreme Court Civil Rules (the “Rules”), namely R. 4-1(3), to  
provide an updated address for service.  
[19] Any such concern, however, was fully alleviated by the specific steps taken  
by some of the defendants to ensure the plaintiff had notice of the hearing scheduled  
 
Babich v. Urban Land Holdings Ltd.  
Page 11  
for April 28, 2022. Specifically, I was advised in response to inquiries made of  
counsel and the self-represented parties that:  
a) Counsel for whom will below be defined as the Lawyer Defendantssent  
a copy of their application materials to the plaintiff via email, followed up  
regarding the application with the plaintiff via email, and forwarded the MS  
Teams link via email to the plaintiff. All with no response.  
b) Allen Sello, in addition to serving his materials in the normal course  
permitted by the Rules, emailed and texted the plaintiff on April 13, 2022.  
Mr. Sello again emailed the plaintiff on April 15, 2022 and repeated, in  
general terms, that there was a court hearing scheduled for April 28 and  
29, 2022. Mr. Sello then telephoned the plaintiff on or about April 22, 2022  
and informed him that there were multiple applications scheduled for the  
above dates. Mr. Sello also forwarded the plaintiff the MS Teams link on  
the morning of the hearing.  
[20] In these circumstances, I am satisfied that the plaintiff had notice of the fact  
that this matter was before the Court, and his obligation to appear in court to make  
submissions or, alternatively, seek an adjournment of the various applications. I will  
thus be dealing with the various applications on their merits.  
Summary of the Applications  
[21] The following is a summary of the applications before the Court and the  
respective provisions of the Rules relied upon for the relief sought, as expressly  
confirmed in the course of the hearing before me on April 28, 2022:  
a) Application #1 filed by the CIBC on March 8, 2022 seeks the following  
orders: that the claims against the CIBC be struck pursuant to R. 9-5(1)(a)  
or alternatively R. 9-5(1)(b), and that the claims against CIBC be  
dismissed;  
 
Babich v. Urban Land Holdings Ltd.  
Page 12  
b) Application #2 filed by Sutton Group Alliance R.E.S., Jag Sidhu, and Jag  
Sidhu Real Estate Corporation on March 21, 2022 seeks the following  
order: that the claims against these applicants be struck pursuant to  
R. 9-5(1)(a) and (b), and, or alternatively, R. 9-5(1)(d);  
c) Application #3 filed by HMTQ (BC) on March 24, 2022 seeks the following  
order: that the claim against HMTQ (BC) be struck pursuant to R. 9-5(1)(a)  
and (b), and/or alternatively R. 9-5(1)(d);  
d) Application #4 filed by LTSA on April 7, 2022 seeks the following orders:  
that the claims against the LTSA be struck and dismissed pursuant to  
R. 9-5(1), or alternatively R. 9-6(5);  
e) Application #5 filed by David Tsen, Sunny Ahuja, and Sutton Group - West  
Coast Realty Corporation on April 7, 2022 seeks the following order: that  
the claims against these applicants be dismissed pursuant to R. 9-6(4)  
and (5);  
f) Application #6 filed by Monique Jaqueline Babich aka Monique Jaqueline  
Sello on April 7, 2022 seeks the following order: that the claims against  
Ms. Sello be struck pursuant to R. 9-5(1)(a), (b), (c), and/or (d), or  
alternatively R. 9-6;  
g) Application #7 filed by Allen Ralph Sello on April 7, 2022 seeks the  
following order: that the claims against Mr. Sello be struck pursuant to  
R. 9-5(1)(a), (b), (c), and/or (d);  
h) Application #8 filed by Urban Land Holdings Ltd., Terry Sidhu, Sidhu and  
Associates Real Estate and Notary Services, and Terry Sidhu Notarial  
Services Inc. on April 13, 2022 seeks the following orders: that the claims  
against these applicants be struck pursuant to Rules 9-5(1)(a), (b), or,  
alternatively, dismissed pursuant to R. 9-6 or R. 9-7.  
Babich v. Urban Land Holdings Ltd.  
Page 13  
i) Application #9 filed by Adnan Habib, Baker Newby LLP All Partners and  
Managing Partners, Janneke Lewis, North Shore Law Group, Sandeep S.  
Gill, Keystone Law Group, Nicholas T. Hooge, Farris LLP, and Cinthya  
Nunez (collectively referred to as the "Lawyer Defendants") on April 14,  
2022 seeks the following orders: that the claim against the Lawyer  
Defendants be struck and the action dismissed pursuant to R. 9-5(1) and  
R. 9-6.  
[22] Finally, in articulating the relief sought by the defendants in the various  
applications before me, I have not specifically addressed the issue of costs. In  
summary, certain applications seek costs fixed summarily and certain applications  
seek costs in the ordinary course. I will address this issue at the conclusion of my  
reasons for judgment.  
The Court of Appeal Proceedings  
[23] As set forth above, the Foreclosure Petition came before the Court of Appeal  
in June 2020, shortly before these proceedings were commenced.  
[24] Two separate applications were before the Court of Appeal in June 2020.  
Firstly, the plaintiff appealed the order of Master Keighley approving the sale of the  
Property. The appeal of that order was dismissed by Mr. Justice Ross in March  
2020. A term of that order was that the plaintiff deliver vacant possession of the  
Property to the purchasers by 12:00 p.m., one day after completion of the sale. The  
plaintiff thus also sought leave to appeal Justice Rosss order dismissing his appeal  
of the order approving sale, and, if leave was granted, sought a stay of the vacant  
possession order pending determination of the appeal.  
[25] Both applications were dismissed by Madam Justice Dickson in Urban Land  
Holdings Ltd. v. Babich, 2020 BCCA 210.  
[26] Although the entirety of the reasons for judgment of Justice Dickson are  
relevant to the background of this proceeding and the specific applications before  
 
Babich v. Urban Land Holdings Ltd.  
Page 14  
the Court, I will highlight only the analysis section of the reasons which are found at  
paras. 46 to 54:  
Is the appeal of significance to the practice?  
[46]  
In my view, the appeal is of no significance to the practice. It is highly  
fact-specific and, although the factual context is unusual in some respects,  
there is no novel point of law raised on the record before me.  
Is the point raised of significance to the parties?  
[47]  
The sale has completed and, while Mr. Babich argues it may be  
possible to unwind it, that position is unsupported by any case authority.  
Although Mr. Babich clearly wishes to press on despite these realities, the  
real questions are whether the appeal is prima facie meritorious and whether  
it would be in the interests of justice to grant leave to appeal.  
Is the appeal prima facie meritorious? Would it be in the interests of  
justice to grant leave to appeal?  
[48]  
In my view, Mr. Babich's proposed appeal lacks merit. I agree with  
counsel for Urban that, in substance, Mr. Babich is really seeking a hearing  
de novo. That is not the role of this Court.  
[49]  
Some of the questions raised by Mr. Babich are well-settled and do  
not raise arguable grounds of appeal based on the record. For example, the  
applicable standards of review are as Justice Ross described them and his  
responsibility procedurally was to conduct a hearing that was fair to all  
concerned. In my view, it is clear from the transcript and his reasons that is  
what occurred. In particular, Justice Ross provided Mr. Babich with ample  
opportunity to present and argue his case, appreciated the substance of the  
materials presented and made his decision based on a firm grasp of their  
import. While it may be arguable that he could have considered new  
evidence, it is also obvious, given his finding that there was no real prospect  
of Mr. Babich obtaining subdivision approval, that admission of Ms. Best's  
appraisal report would not have impacted his decision on whether the sale  
was provident or otherwise affected the outcome of the appeal.  
[50]  
Other questions raised by Mr. Babich in his arguments, written and  
oral, are simply frivolous. For example, this Court plainly has no power to  
order the Attorney General to co-sign a mortgage with Mr. Babich. Nor did the  
prime minister and government stay the orders in question by their response  
to the COVID-19 pandemic. In addition, the submissions of counsel are not  
evidence. Nor was Ms. Babich obliged to take the same position on the sale  
approval order before the Master and Justice Ross. On matters such as  
these, nothing more need be said.  
[51]  
Further, and importantly, even if an arguable ground of appeal could  
be discerned in my view it would not be in the interests of justice to grant  
leave to appeal given that the sale of the property has already completed.  
Although not identical to Genworth Financial Mortgage Insurance Company  
of Canada v. Doan, 2019 BCCA 350, in all respects, in my view this case is  
similar in significant ways. In Genworth, Justice Fenlon dismissed  
applications for leave to appeal and a stay of execution where a sale had  
Babich v. Urban Land Holdings Ltd.  
Page 15  
completed in a foreclosure context but the applicant remained in possession  
of the property. Although Justice Fenlon found the appeal was arguable, she  
dismissed both applications based on the interests of justice criterion:  
[21]  
Mr. Doan remains in possession of the property at this point,  
but a bona fide purchaser for value who is not a party to this  
proceeding is the registered owner of the property. The purchaser  
was entitled to rely on the completion of the sale approved by the  
court and unchallenged prior to the transfer: Bank of Montréal v. Pay,  
[1993] B.C.J. No. 2013 (C.A.). The fact that Mr. Doan has refused to  
vacate the property in accordance with a court order does not affect  
that analysis.  
[22]  
I conclude that it is not in the interests of justice to grant leave  
to appeal. I need not therefore address the third question as to  
whether a stay should be granted. However, I note that a stay of the  
order would in any event be moot, since the property has vested in  
the purchaser: Resmor Trust Company v. Laus Holdings Ltd., 2011  
BCCA 492 at para. 27.  
[Emphasis at para. 21 added.]  
[52]  
In this case, Mr. Babich filed his notice of application for leave to  
appeal the day before the sale closed, but it appears that he did not serve the  
Vo purchasers, who were not named as respondents to the application. They  
are bona fide purchasers who were entitled to rely on completion of a sale  
approved by the court, which was, from their perspective, apparently  
unchallenged when completion was achieved. They are now the registered  
owners of the property and they have obtained a significant mortgage in  
respect of it which obliges them to make substantial monthly payments, but  
nevertheless Mr. Babich retains possession of their property. For her part,  
Ms. Babich has an interest in a share of the sale proceeds, which are, for her,  
a bird in the handshe does not want to lose based on the hope that long-  
awaited subdivision approval might be forthcoming and a higher price thus  
achieved.  
[53]  
Like Mr. Doan in Genworth, Mr. Babich has not repaid the sums due  
under the terms of his mortgage and, although he has had many  
opportunities to redeem it, he has been unable to do so. He has also been  
unable to persuade two levels of court that there is a reasonable prospect he  
will be able do so within a reasonable time or that the subdivision approval as  
he has long sought will soon become a reality.  
[54]  
Taking into account all of the foregoing, I conclude it is not in the  
interests of justice to grant leave to appeal Justice Rosss order. Although I  
need not address the question of whether a stay should be granted, like  
Justice Fenlon in Genworth, I note that, based on the analysis in Resmor,  
such an order would be moot in any event.  
Babich v. Urban Land Holdings Ltd.  
Page 16  
Rules 9-5(1) and 9-6 of the Supreme Court Civil Rules  
[27] Rules 9-5(1) and 9-6(5)(a) provide the court with the ability to strike out or  
dismiss a pleading in certain circumstances. Those Rules provide as follows:  
Scandalous, frivolous or vexatious matters  
9-5 (1) At any stage of a proceeding, the court may order to be struck out or  
amended the whole or any part of a pleading, petition or other document on  
the ground that  
(a) it discloses no reasonable claim or defence, as the case may be,  
(b) it is unnecessary, scandalous, frivolous or vexatious,  
(c) it may prejudice, embarrass or delay the fair trial or hearing of the  
proceeding, or  
(d) it is otherwise an abuse of the process of the court,  
and the court may pronounce judgment or order the proceeding to be  
stayed or dismissed and may order the costs of the application to be  
paid as special costs.  
Power of court  
9-6 (5) On hearing an application under subrule (2) or (4), the court,  
(a) if satisfied that there is no genuine issue for trial with respect to a  
claim or defence, must pronounce judgment or dismiss the claim  
accordingly,  
[28] In summary:  
a) Rule 9-1(5)(a): provides the court with the power to strike in whole or in  
part a pleading that discloses no reasonable claim or defence;  
b) Rule 9-1(5)(b): provides the court with the power to strike in whole or in  
part a pleading that is unnecessary, scandalous, frivolous, or vexatious;  
c) Rule 9-1(5)(c): provides the court with the power to strike in whole or in  
part a pleading that may prejudice, embarrass, or delay the fair trial or  
hearing of the proceeding;  
d) Rule 9-1(5)(d): provides the court with the power to strike in whole or in  
part a pleading on the basis that the proceeding constitutes an abuse of  
process; and  
 
Babich v. Urban Land Holdings Ltd.  
Page 17  
e) Rule 9-6(5)(a): provides the Court with the power to dismiss a claim or  
defence where it is satisfied there is no genuine issue for trial.  
The Law Considering Rule 9-5(1) of the Supreme Court Civil Rules  
[29] In a notice of civil claim, a plaintiff must plead facts that are material to ground  
a viable cause of action. Although pleadings may be general, they must be specific  
enough to show on what grounds the proposed defendants are being sued: Forde v.  
Interior Health Authority, 2007 BCSC 1706 at para. 15.  
[30] The test under R. 9-5(1)(a) is whether it is plain and obvious that the plaintiffs  
claim discloses no reasonable cause of action. The pleadings are taken to be true  
for the purpose of an application to strike. Pleadings will be struck where they do not  
establish a cause of action, do not advance a claim known in law, or are groundless  
and fanciful: Olenga v. British Columbia, 2015 BCSC 1050 at para. 17.  
[31] As set forth in Willow v. Chong, 2013 BCSC 1083 at para. 20, a claim is  
unnecessary or vexatious if it does not go to establishing the plaintiffs cause of  
action, if it does not advance any claim known in law, where it is obvious that an  
action cannot succeed, or where it would serve no useful purpose and would be a  
waste of the courts time and the publics resources: …”  
[32] Willow was referred to in the helpful summary of the law related to striking  
pleadings by Mr. Justice Voith in Sahyoun v. Ho, 2015 BCSC 392 at paras. 57-63,  
appeal dismissed as abandoned 2017 BCCA 96:  
[57]  
The test on an application to strike an action under R. 9-5(1)(a), on  
the basis the pleadings do not disclose a cause of action, is whether it is plain  
and obvious the claim cannot succeed. It requires a conclusion that,  
assuming that the facts as stated are true, those facts disclose no cause of  
action and the pleadings disclose no arguable issue. If there is a chance that  
the action may succeed, then the action should be allowed to proceed; Hunt  
v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 980; Thompson v. Webber,  
2010 BCCA 308 at para. 11; Canadian Bar Assn. v. British Columbia, 2008  
BCCA 92 at para. 37.  
[58]  
The test for striking a pleading under R. 9-5(1)(b), on the basis that it  
is unnecessary, scandalous, frivolous or vexatious, was recently summarized  
in Willow v. Chong, 2013 BCSC 1083, where Fisher J. said:  
 
Babich v. Urban Land Holdings Ltd.  
Page 18  
[20]  
Under Rule 9-5(1)(b), a pleading is unnecessary or vexatious if  
it does not go to establishing the plaintiff's cause of action, if it does  
not advance any claim known in law, where it is obvious that an action  
cannot succeed, or where it would serve no useful purpose and would  
be a waste of the court's time and public resources: Citizens for  
Foreign Aid Reform Inc. v Canadian Jewish Congress, [1999] B.C.J.  
No. 2160 (SC); Skender v Farley, 2007 BCCA 629. If a pleading is so  
confusing that it is difficult to understand what is pleaded, it may also  
be unnecessary, frivolous or vexatious.  
[59]  
An embarrassingpleading, as contemplated by R. 9-5(1)(c), is one  
that is so irrelevant that to allow it to stand would involve useless expense  
and would also prejudice the trial of the action by involving the parties in a  
dispute apart from the issues; Keddie v. Dumas Hotels Ltd. (1985), 62  
B.C.L.R. 145 at 147 (C.A.).  
[60]  
The abuse of process standard under R. 9-5(1)(d) derives from a  
flexible doctrine. It allows the court to prevent a claim from proceeding where  
to do so would violate principles of judicial economy, consistency, finality and  
the integrity of the administration of justice; Toronto (City) v. C.U.P.E., Local  
79, 2003 SCC 63 at paras. 35-37.  
[61]  
Though subsections (a)-(d) of R. 9-5(1) address different concerns  
and different wrongs, there is also some overlap between these subsections.  
Thus, for example, a pleading that discloses no cause of action, contrary to  
R. 9-5(1)(a), can also be unnecessary, frivolous or vexatious within the  
meaning of R. 9-5(1)(b); see e.g. Virk v. Brar, 2012 BCSC 1004 at  
paras. 69-70.  
[62]  
A pleading can be embarrassing if it does not state the real issue in  
an intelligible form. It can also be embarrassing if it is prolix, includes  
irrelevant facts, argument or evidence. It can be prejudicial if it is designed to  
or has the effect of confusing the defendant, making it difficult, if not  
impossible, to answer; Virk at para. 75.  
[63]  
These same concerns can constitute an abuse of the court if a litigant  
has been expressly told that there are aspects of its pleadings that are  
deficient or defective, and if that litigant persists, in its amended claim, to  
advance the same claims or issues in the same way.  
[33] Willow was also recently followed by this Court in Gaucher v. British Columbia  
Institute of Technology, 2021 BCSC 289 at para. 58.  
[34] Willow, Sahyoun, and Gaucher make clear this Court's jurisdiction to strike  
and dismiss meritless claims, where doing so serves the objective of the British  
Columbia Supreme Court Civil Rules - namely to secure the just, speedy and  
inexpensive determination of every proceeding on its merits.  
Babich v. Urban Land Holdings Ltd.  
Page 19  
[35] In the similar vain, a vexatious action can also include an action brought for  
an improper purpose: Simon v. Canada (Attorney General), 2015 BCSC 924 at  
para. 97, affd 2016 BCCA 52.  
[36] Finally, when determining whether proceedings constitute an abuse of  
process, the court may consider whether the court process is being used dishonestly  
or unfairly, or for some ulterior or improper purpose: Young v. Borzoni, 2007 BCCA  
16 at paras. 64-66.  
Additional Law Relevant to the Applications  
[37] Lawyers do not owe a duty of care to an opposing party. This proposition is  
confirmed in Pearlman v. Critchley, 2012 BCSC 1830 at para. 44; Gateway Building  
Management Limited v. Manjit Singh Randhawa, 2013 BCSC 350 at paras. 23-26;  
Singh v. Nielsen, 2016 BCSC 2420 at para. 20; and Awad v. Salna, 2017 BCSC 429  
at paras. 22-23.  
[38] In discharging the responsibility for court administration, the Attorney General  
of British Columbia owes a general duty to the public as a whole that precludes a  
private law duty of care to any individual litigant: Eliopoulos Estate v. Ontario  
(Minister of Health and Long-Term Care), (2006) 217 O.A.C. 69 (CA) at para. 17.  
[39] The doctrine of res judicata provides that once a matter has been decided, it  
shall not be litigated again in a subsequent or repetitive litigation. Such a claim is  
unnecessary, scandalous, frivolous or vexatiousor otherwise an abuse of process  
of the court: Hoessmann Estate v. Aldergrove Credit Union, 2018 BCSC 256 at  
para. 76.  
[40] In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 25, the  
Supreme Court of Canada set forth the test for when issue estoppel will bar future  
proceedings. That three-part test is as follows:  
a) The same question has been decided;  
b) The judicial decision said to create the estoppel was final; and  
 
Babich v. Urban Land Holdings Ltd.  
Page 20  
c) The parties to the judicial decision or their privies were the same persons  
as the parties to the proceeding in which the estoppel was raised.  
[41] Lastly, in Erschbamer v. Wallster, 2013 BCCA 76 at para. 30, the Court of  
Appeal endorsed the proposition that the argument of abuse of process is available  
to prevent relitigation of an issue and stated that in applying abuse of process by  
relitigation, the courts have taken a stern view of raising in new proceedings issues  
that ought reasonably to have been raised in earlier proceedings.”  
The Law Considering Rule 9-6(5) of the Supreme Court Civil Rules  
[42] As set forth above, R. 9-6(5)(a) of the Rules is the summary judgment rule  
that provides the court with the power to dismiss a claim or defence where it is  
satisfied there is no genuine issue for trial.  
[43] The purpose of the summary judgment rule was described by the Supreme  
Court of Canada as follows in Canada (Attorney General) v. Lameman, 2008 SCC  
14 at para. 10:  
[10]  
The summary judgment rule serves an important purpose in the  
civil litigation system. It prevents claims or defences that have no chance of  
success from proceeding to trial. Trying unmeritorious claims imposes a  
heavy price in terms of time and cost on the parties to the litigation and on the  
justice system. It is essential to the proper operation of the justice system and  
beneficial to the parties that claims that have no chance of success be  
weeded out at an early stage. Conversely, it is essential to justice that claims  
disclosing real issues that may be successful proceed to trial.  
[44] Under R. 9-6(5) of the Rules, if a court is satisfied that there is no genuine  
issue for trial with respect to a claim or defence, the court must pronounce judgment  
or dismiss the claim accordingly.  
[45] On an application under R. 9-6(4) of the Rules, the onus is on the defendant  
to prove that there is no genuine issue of material fact requiring trial”: 4 Corners  
Properties Ltd. v. Boffo Developments (Smithe) Ltd., 2013 BCSC 1926 at para. 21.  
[46] An action may only be dismissed if the plaintiffs claim is bound to fail. Unlike  
a summary trial application, brought under R. 9-7 of the Rules, the court is not able  
 
Babich v. Urban Land Holdings Ltd.  
Page 21  
to weigh the evidence on a summary judgment application. It must be clear and  
beyond controversy that there is no merit to the plaintiffs claims: 4 Corners at  
para. 16.  
[47] That said, unlike the applications under R. 9-(5)(1), evidence is admissible on  
a summary judgment application: Edgar v. British Columbia Institute of Technology,  
2015 BCSC 710.  
[48] Finally, as articulated by this Court in 4 Corners at para. 24, where the state  
of the law is clear, and there is a straightforward answer to the issues that will allow  
the court to dispose of the claim and thus protect its processes from abuse by  
unmeritorious claims and defences, then the court may act under the Rule.”  
Analysis Regarding the Applications  
[49] Having regard to the applicable Rules and the caselaw as set forth above, I  
conclude that the claims as plead in the NOCC filed June 24, 2020, against all of the  
applying parties must be struck or otherwise dismissed. My reasons for reaching that  
conclusion and the resulting orders are summarized as follows:  
a) Application #1 filed by the CIBC on March 8, 2022:  
i. The plaintiff does not plead any material facts against CIBC which,  
even if true, would establish a viable cause of action against CIBC.  
ii. Accordingly, I order that claims against the CIBC in the NOCC filed  
June 24, 2020 are struck pursuant to R. 9-5(1)(a) of the Rules.  
b) Application #2 filed by Sutton Group Alliance R.E.S., Jag Sidhu, and Jag  
Sidhu Real Estate Corporation on March 21, 2022:  
i. These applicants do not owe any duty of care or any obligation to the  
plaintiff. These are not claims known at law. It is also clear that these  
claims cannot succeed.  
 
Babich v. Urban Land Holdings Ltd.  
Page 22  
ii. Accordingly, I order that the claims made against these applicants in  
the NOCC filed June 24, 2020, are struck pursuant to R. 9-5(1)(a) and  
9-5(1)(b) of the Rules.  
c) Application #3 filed by HMTQ (BC) on March 24, 2022:  
i. The plaintiffs claims against HMTQ (BC) do not disclose a reasonable  
cause of action known at law.  
ii. The claims to set aside previous orders of this Court which were either  
not appealed or unsuccessfully appealed are vexatious and an abuse  
of process.  
iii. Accordingly, I shall order that the claims made against HMTQ (BC) in  
the NOCC filed June 24, 2020, are struck pursuant to Rules 9-5(1)(a),  
9-5(1)(b) and 9-5(1)(d) of the Rules.  
d) Application #4 filed by LTSA on April 7, 2022:  
i. The LTSA is not the statutory decision-maker responsible for land  
transfer applications within the Province of British Columbia. That  
responsibility lies with the Registrar of Land Titles, who is not a party to  
this action.  
ii. The Land Title Act, R.S.B.C. 1996, c. 250 establishes a specific  
process for challenging the decisions of the registrar: see Part 19.1  
and/or Part 21 of the Act. This process was not invoked. Instead the  
plaintiff purports to make a claim in negligence.  
iii. The Land Title Act further precludes any claim brought against the  
registrar by a person who sustains loss or damages caused, solely or  
partially, as a result of an omission, mistake or misfeasance of the  
registrar in the execution of their respective duties under the Act,  
except in accordance with s. 294.22. That section was not plead by the  
plaintiff.  
Babich v. Urban Land Holdings Ltd.  
Page 23  
iv. Accordingly, I order that the claims made against the LTSA in the  
NOCC filed June 24, 2020, are struck pursuant to R. 9-5(1)(a) of the  
Rules.  
e) Application #5 filed by David Tsen, Sunny Ahuja and Sutton Group - West  
Coast Realty Corporation dated April 7, 2022:  
i. The issue of improper marketing of the Property was expressly raised  
by the plaintiff in the Foreclosure Petition. Further, the same facts  
underlying the complaints about exposure to the market and a failure  
to obtain fair market value for the Property were also expressly before  
the Court at the time that the order for approval of sale of the Property  
was made.  
ii. The allegations against these defendants are thus all derived from the  
Foreclosure Petition and were considered and disposed of by this  
Court in those proceedings.  
iii. Accordingly, I order that the claims made against these applicants in  
the NOCC filed June 24, 2020, are dismissed pursuant to Rules 9-6(4)  
and 9-6(5) of the Rules.  
f) Application #6 filed by Monique Jaqueline Babich aka Monique Jaqueline  
Sello dated April 7, 2022:  
i. Ms. Sello and the plaintiff resolved the issues as between them in the  
Family Action. There are no particulars provided of Ms. Sellos failure  
to honour the terms of the Final Order in that action. If there was a  
failure to comply with the terms of the Final Order, of which there are  
no material facts plead, the proper forum for those issues to be  
addressed was in the Family Action through, for example, an  
application for contempt of court.  
Babich v. Urban Land Holdings Ltd.  
Page 24  
ii. Further, Ms. Sello did not owe a duty of care to the plaintiff, her former  
spouse, which can properly ground an omnibus negligence claim.  
iii. Accordingly, I shall order that the claims made against Ms. Sello in the  
NOCC filed June 24, 2020, are struck pursuant to Rules 9-5(1)(a),  
9-5(1)(b) and 9-5(1)(d) of the Rules.  
g) Application #7 filed by Allen Ralph Sello dated April 7, 2022:  
i. The claims that Mr. Sello delayed and interfered with the settlement  
achieved in the Family Action are arguably inconsistent with the claim  
that Mr. Sello directly negotiated said settlement. More importantly,  
these claims, along with the claim that Mr. Sello failed to honour the  
terms of the Final Order, which he was not a party to, cannot  
reasonably found a cause of action.  
ii. The allegation that Mr. Sello was abusive to the plaintiffs children  
cannot succeed on the basis that any such cause of action belongs to  
said children, whether in their own capacity or as represented by a  
litigation guardian depending on their ages.  
iii. Accordingly, I shall order that the claims made against Mr. Sello in the  
NOCC filed June 24, 2020, are struck pursuant to Rules 9-5(1)(a),  
9-5(1)(b) and 9-5(1)(d) of the Rules.  
h) Application #8 filed by Urban Land Holdings Ltd., Terry Sidhu, Sidhu and  
Associates Real Estate and Notary Services, and Terry Sidhu Notarial  
Services:  
i. Urban Land Holdings Ltd. was the successful party in the Foreclosure  
Petition. The claims against Urban Land Holdings Ltd. arise directly out  
of the identical factual matrix and represent an improper attempt to  
relitigate. It is further plain and obvious that the claims cannot succeed.  
Babich v. Urban Land Holdings Ltd.  
Page 25  
ii. Similarly, there are material facts plead which disclose a reasonable  
cause of action against Terry Sidhu, Sidhu and Associates Real Estate  
and Notary Services, and Terry Sidhu Notarial Services. Rather, these  
claims are frivolous and vexatious.  
iii. Accordingly, I shall order that the claims made against Urban Land  
Holdings Ltd., Terry Sidhu, Sidhu and Associates Real Estate and  
Notary Services, and Terry Sidhu Notarial Services in the NOCC filed  
June 24, 2020, are struck pursuant to Rules 9-5(1)(a), 9-5(1)(b) and  
9-5(1)(d) of the Rules.  
i) Application #9 filed by the Lawyer Defendants on April 14, 2022:  
i. As set forth above, the law is clear that lawyers do not owe a duty of  
care to an opposing party. Therefore, any allegations that counsel for  
the opposing party has misled or intentionally deceived the court,  
resulting in decisions or orders that are unfavourable to the plaintiff do  
not found any actionable breaches of any private duty owed to the  
plaintiff by any of the Lawyer Defendants.  
ii. Further, much of relief sought against the Lawyer Defendants  
predominately seeks to reverse or set aside the court orders that the  
Lawyer Defendants obtained on behalf of their respective clients in the  
prior proceedings referenced. This is an inappropriate attempt to  
relitigate.  
iii. Accordingly, I shall order that the claims made against the Lawyer  
Defendants in the NOCC filed June 24, 2020, are struck pursuant to  
Rules 9-5(1)(a), 9-5(1)(b) and 9-5(1)(d) of the Rules.  
Babich v. Urban Land Holdings Ltd.  
Page 26  
The Claims Against the Remaining Defendants  
[50] As I do not have an application before me by either HTMQ (Canada) or the  
Vo Defendants, I am not in a position to formally dismiss the claims against them at  
this juncture.  
[51] However, I will state, in obiter, that the claims against these parties are  
equally, if not more, flawed than the claims against the defendants who have  
successfully applied to strike the pleadings in the applications before the Court.  
Costs  
[52] All of the applying parties have sought costs. As indicated, some of the  
parties have sought fixed costs and certain parties have sought costs generally in  
accordance with the Rules.  
[53] In light of the fact that all of the parties were successful in their applications,  
they are all entitled to their costs of this action and I shall make that order. For  
clarity, I will expressly state that for those parties that shared a common counsel,  
they will be entitled to their costs collectively and not individually.  
[54] The fixed costs sought by certain of the defendants in their applications seem  
entirely reasonable in the circumstances. However, upon consideration I am not  
prepared to fix the costs summarily at this time given the possibility of prejudice to  
those parties who simply sought costs in the normal course and did not make  
specific submissions as to quantification of costs.  
[55] Accordingly, costs, to the extent they cannot be agreed, will need to be  
assessed by the registrar at Scale B in accordance with the usual process provided  
for in the British Columbia Supreme Court Civil Rules.  
Hardwick J.”  
   
Babich v. Urban Land Holdings Ltd.  
Page 27