Rana v Rana, 2021 ABQB 154

Court of Queen’s Bench of Alberta Citation: Rana v Rana, 2021 ABQB 154 Date: 20210226 Docket: 1501 02369 Registry: Calgary Between: Salim Rana Applicant - and - Zahir Rana, Attorney for Gulzar Rana Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice N.E. Devlin _______________________________________________________ I. Introduction [ 1 ] This matter is the latest salvo in an ongoing battle between brothers. The Respondent, Zahir Rana, acts as attorney for the parties’ mother, Gulzar Rana, pursuant to a power of attorney. Mrs.

Rana’s assets include a condominium in Calgary against which the Applicant, Salim Rana, has filed a caveat. [ 2 ] The litigation over that caveat and over the power to attorney itself has been ongoing for a number of years. There have been several decisions, many of which the Applicant has appealed, though some of those appeals were abandoned. Earlier this month, the Applicant was denied an extension of time to seek leave to appeal to the Supreme Court of Canada. I was appointed as Case Management Justice in late 2019. [ 3 ] The applications presently before me are three-fold.

First, the Applicant seeks to have me recuse myself from this case on the grounds of bias. Second, the Applicant seeks production of additional records. Third, each party seeks an order for security for costs against the other. II. Recusal [ 4 ] I will deal first with the application for recusal since that request, if granted, would preclude me from addressing the other matters. [ 5 ] The parties are substantially in agreement as to the law on recusal and cite several of the same cases. It is clear from the case

law that there is a strong presumption in favour of judicial impartiality and that judges must guard against unnecessary recusals; see, for example, Al-Ghamdi v Alberta , 2016 ABQB 424 at para 67 . [ 6 ] Recusal will be appropriate only if there is cogent evidence demonstrating a reasonable apprehension of bias.

A bare allegation of bias is not sufficient: McElheran v Canada , 2006 ABCA 161 . [ 7 ] The test for reasonable apprehension of bias is as articulated by the Court of Appeal in Point on the Bow Development Ltd v William Kelly and Sons Plumbing Contractors Ltd , 2005 ABCA 310 at para 5 : “...if a reasonable person, properly informed, viewing the matter realistically and practically, and having thought the matter through, would think it more likely than not that the decision maker, whether consciously or unconsciously, would not decide fairly.” [ 8 ] It is common ground that this test applies equally to trial judges and to case management judges. [ 9 ] In his brief on this issue, the Applicant asserts that I have demonstrated a “notable pattern of bias” and that my “impartiality may reasonably be questioned”.

The focus of his concern appears to be on two matters: correspondence I sent in December 2019 and a decision I made in November 2020. [ 10 ] On December 12, 2019, counsel for the Respondent wrote to me requesting to

schedule a case management meeting on February 3, 2020. Counsel indicated that she had exchanged several emails with the Applicant and had proposed the February 3, 2020 date, but had not yet received a response. [ 11 ] In his brief on the recusal application, the Respondent summarized my response as follows: On December 16, 2019, Justice Devlin responded to the Applicant and Respondent indicating that, among other things: (

a) He had reviewed the sequence of correspondence between the Parties regarding the scheduling of a Case Management Meeting; (

b) He was disappointed that the Applicant misunderstood the purpose and direction [of] his appointment as Case Management Justice by Associate Chief Justice Rooke; (

c) Associate Chief Justice Rooke did not intend that merely conversations regarding scheduling of a Case Management Meeting would occur no later than 90 days after his letter but that a Case Management Meeting be convened no later than that time period; (

d) The fact that the Action is in Case Management reflects that it has been poorly managed by the Parties; (

e) If the Applicant does not wish to pursue the litigation in a timely fashion, he may suggest a discontinuance on terms; and (

f) He was ordering that a Case Management Meeting be held before him on February 3, 2020. [ 12 ] The Applicant takes umbrage at this letter. He states in his brief that my “...tone and false reading of The Associate Chief Justice are both demeaning and intimidating.” He also states that I have “...a mindset that the Applicant did not want to continue this case” and that I am “...not entitled to have these assumptions as an impartial judge.” [ 13 ] My task as Case Management Justice is to assist the parties in moving the litigation toward resolution.

Contrary to what the Applicant suggests, I had neither assumed nor concluded that he did not wish to continue the litigation. I merely proposed that, in the event he did not wish to continue, he had the option to discontinue.

In my view, a reasonable person would not consider that evidence of bias, in particular given the age and pace of the litigation. [ 14 ] The Applicant’s second objection is that I refused to allow him to question the Respondent on his February 26, 2020 Affidavit. [ 15 ] Certainly, questioning on affidavit is an ordinary step in litigation and my refusal to permit it in this case was somewhat unusual.

In the particular circumstances of this case, however, I considered it an appropriate exercise of my discretion as Case Management Justice. [ 16 ] I previously had given a direction that questioning on the Respondent’s Affidavit was to be completed by April 10, 2020. At the Case Management Meeting on November 5, 2020, counsel for the Respondent provided me with correspondence between the parties indicating that the Respondent had provided the Applicant with at least ten examination dates prior to April 10, 2020 and several thereafter.

Despite these opportunities, the Applicant still had not made arrangements to conduct the questioning and offered no satisfactory explanation for this failure. [ 17 ] At that point, the litigation had been ongoing for approximately five years and I had been Case Management Justice for about one year, with little progress toward trial or even resolution of the pre-trial motions. In 2019, the Court of Appeal commented in a related application that, “ the pattern of delay exhibited by Mr. Rana over the course of these proceedings is unacceptable...”: Rana v Rana , 2019 ABCA 278 at para 22 .

Further judicial comment regarding Mr. Rana’s failure to take required steps in related litigation can also be found at Rana v Rana , 2020 ABCA 295 . [ 18 ] Therefore, in furtherance of my role and of the litigation itself, I exercised my discretion to refuse to allow the Applicant to question the Respondent on the Affidavit. However, I permitted the Applicant to make submissions as to how the questioning would affect the outcome of the litigation and to seek a further order if necessary.

Parenthetically, no such further relief was sought, and no submission as to what would have changed or been proven by questioning was advanced. [ 19 ] I am not persuaded that a reasonable person acquainted with these facts would conclude that I am biased against the Applicant. A case management judge, almost by definition, has been tasked to advance litigation which has proven unmanageable in the hands of the parties in the ordinary course. Decisions designed to move the matter forward in this context are both necessary and almost

inevitably displeasing to at least one of the parties. This is far from synonymous with bias. [ 20 ] While I appreciate that he was dissatisfied with my ruling, his remedy lay with the Court of Appeal. Taking all of the foregoing into account, I am not satisfied that it is appropriate for me to recuse myself from this case and I decline to do so. Therefore, I will proceed to deal with the other matters. III. Records [ 21 ] This portion of the application is somewhat difficult to follow.

The Applicant sought various financial and health records, styling some of the requests as fulfillment of undertakings, some as “discovery” and some as requests for orders for access to bank records.

The Respondent opposes all of these requests on various grounds, including that some of the requests are res judicata , that some of the records no longer exist, and that the requested records are not relevant. [ 22 ] At the hearing before me, the Applicant took inconsistent positions, saying that he was “just asking for the undertaking to be completed” while stating earlier that it was “clear that they did the undertaking but this is something else”. [ 23 ] Notwithstanding this lack of clarity, I will attempt to address each part of the Applicant’s request for records. [ 24 ] First, the Applicant seeks certain banking records for his parents’ account in 2004-5.

The Respondent argues that this request is res judicata and was struck by a direction I gave on March 4, 2020. Moreover, the Respondent asserts that all bank records already have been provided. The Respondent provided evidence of correspondence with First Calgary Financial indicating that no further information is available from that time period. [ 25 ] The crux of this request appears to be the Applicant’s claim that he made a loan of $125,000 to his parents at that time to permit them to pay off their mortgage.

The Respondent acknowledges that his parents received $85,000 from the Applicant but takes the position that it was a gift. [ 26 ] The Applicant argues that he requires the banking records to establish both the fact and the quantum of the loan. At the hearing, I asked him why he could not obtain records of the transfer from his own bank from which they were sourced. I pointed out that, at most, his parents’ banking records would show that they received the funds, but not that the funds came from him. The Applicant’s response was vague.

He indicated that he had some 49 bank accounts at the time and that the funds could have come in the form of drafts from a few different banks. He also stated that some money came from a “person in Vancouver” but he offered no other details. [ 27 ] The Applicant has not satisfied me that there is any reason for me to revisit my March 4, 2020 direction dismissing his application for these records and his current application for them is denied. [ 28 ] Next, the Applicant continues to seek financial records relating to the check cashing business his parents once operated.

The Respondent argues that since their parents ceased operating that business in 2011, such records do not exist. The Respondent also takes the position that such records are not relevant to the discharge of his role as attorney for his mother. Finally, the Respondent notes that my March 4, 2020 direction was that any issues in respect of these records would have to be addressed at trial. The Respondent states it has fulfilled the undertaking to best of its ability. The Applicant does not believe him.

That is not a dispute amenable to resolution in the pre-trial process. [ 29 ] Nothing in the Applicant’s written or oral submissions persuades me that I should depart from my previous direction. Accordingly, this part of the application is dismissed. [ 30 ] Finally, the Applicant seeks an “independent report” respecting his mother’s health condition in 2012-2014. The Respondent notes that on March 4, 2020, I directed the Applicant to retain an expert to conduct a review of his mother’s medical records and to prepare a report on capacity.

That report was to be completed by May 7, 2020. [ 31 ] When I asked the Applicant at the hearing about the status of this endeavour, he stated that he had not been able to meet this timeline because of the Covid-19 pandemic. He indicated that he could “let it go for now” and, accordingly, I need not consider this portion of the application further. IV. Security for Costs [ 32 ] Each party sought to have the other post security for costs.

These applications are guided by Rule 4.22, which provides as follows: 4.22 The Court may order a party to provide security for payment of a costs award if the Court considers it just and reasonable to do so, taking into account all of the following: (

a) whether it is likely the applicant for the order will be able to enforce an order or judgment against assets in Alberta; (

b) the ability of the respondent to the application to pay the costs award; (

c) the merits of the action in which the application is filed; (

d) whether an order to give security for payment of a costs award would unduly prejudice the respondent’s ability to continue the action;

(

e) any other matter the Court considers appropriate. [ 33 ] The Respondent notes that this application requires a two-stage inquiry. First, the Court reviews the factors enumerated in Rule 4.22. If those factors weigh in favour of granting security, the Court must then consider whether granting security is just and reasonable in the circumstances. [ 34 ] The inquiry also involves a shifting of onus. The onus is first on the applicant for security to demonstrate that the respondent is unlikely to pay a costs award.

If the applicant satisfies this onus, the burden then shifts to the respondent to persuade the Court that it should not exercise its discretion to order security. [ 35 ] I will deal first with the Applicant’s application. As the Respondent notes, it is unclear whether he continues to seek an order for security as he made no arguments about it in either his written or oral submissions. [ 36 ] Assuming the Applicant still wants security for costs ordered against the Respondent, the onus is on him to show that the Respondent is unlikely to pay a costs award. This he has failed to do.

The Respondent is resident in Alberta and I have been provided with no evidence to suggest that he does not have assets against which a costs award could be enforced. It is also significant that the Respondent is acting in this litigation in his capacity as attorney for his mother under a power of attorney. Therefore, it is possible, even likely, that a costs award could be satisfied against Mrs.

Rana’s assets, including her condominium in Calgary that is the subject of this litigation. [ 37 ] Thus, I find that an order for security for costs against the Respondent is not justified in these circumstances and the Applicant’s application for security, to the extent that it is still a live issue, is dismissed. [ 38 ] The Respondent’s application for security for costs against the Applicant is on quite a different footing. [ 39 ] The Applicant is not resident in Alberta.

Indeed, he stated at the hearing that he has been “homeless” since 2002, though my understanding is that he has been not so much homeless as nomadic. His most recent filed documents list as his address for service a postal box in Nairobi, Kenya. [ 40 ] The Respondent asserts that the Applicant also has no assets in Alberta. At the hearing, the Applicant acknowledged that he has no assets in Alberta, but in his brief, he argues that he has a “registered property in Alberta”. The property to which he refers, however, is the caveat he has registered against his mother’s condominium.

He argues that the Respondent “will be able to enforce an order or judgment against assets in Alberta if he is the prevailing party in this action.” [ 41 ] This argument is circular. If the Respondent ultimately is successful in this litigation, the result will be the discharge of the Applicant’s caveat, leaving the Applicant without the “registered property in Alberta” upon which he relies.

Thus, if the Respondent succeeds and is awarded costs, the Applicant will have no remaining assets in Alberta against which that costs award could be enforced. [ 42 ] The Applicant stated at the hearing that he intends to deal with any debts, but this assertion is insufficient to assuage the concern that he will not pay a costs award against him. In addition to the evidence as the Applicant’s want of exigible assets in Alberta, this litigation is the product of a profound animus between siblings, over a subject matter which is the source of considerable emotion distress to the Applicant.

If he were to be unsuccessful, it seems unlikely that he would pay costs to the brother he believes has defalcated their mother’s funds. I find that the Respondent has met his burden. [ 43 ] The onus then shifts to the Applicant to persuade me that I should not exercise my discretion to make an award of security for costs against him. The Applicant made a number of arguments in this regard. [ 44 ] First, he made reference to an order granted by Labrenz J of this Court in October 2019.

The thrust of this argument was not entirely clear to me, but I have examined the order and I find that it has no bearing on the issue of security for costs presently before me. Justice Labrenz gave the Respondent leave to apply for security pursuant to the Land Titles Act . This, however, was prior to my appointment as Case Management Justice and I find that the Respondent properly brought this application pursuant to Rule 4.22. [ 45 ] Next, the Applicant says, with not inconsiderable understatement, that he is not a stranger to this Court.

Given his history of filing and then abandoning appeals, this is hardly propitious for him in respect of the security for costs analysis. [ 46 ] Finally, the Applicant stated at the hearing that he “would not mind” posting security, but that it should be payable 60 days prior to trial, rather than forthwith.

He asserts that it would be unfair to leave the money sitting in Court when the trial is likely to be so far in the future. [ 47 ] In respect of the merits, it is clear that this lawsuit is not really about the claimed debt upon which it is premised, but rather the Applicant’s wish to have someone other than his brother manage his disabled mother’s affairs. He told the Court this in our first case management meeting, where the following exchange took place: MR. S.

RANA: The advance was 125,000 that I recall, and that 17 all funds that had been given to my family when I ran into a lot of money were loans to my 18 brothers and to my mother -- and my parents, and my -- because to me it’s -- the amount, 19 and that it was a loan, and I wanted that loan to be put into a trustee’s hands. If I win, I 20 don’t want that money. I want it to be there for my mother’s security. THE COURT: Okay. Isn’t your position that your mother is the principal -- or her estate as it now stands, is the principal debtor to you? MR. S. RANA: Yes. THE COURT: Okay.

So, I’m trying to understand what it is you just said, that you want that money for what purpose?

MR. S. RANA: I want that money so that it’s not managed by Zahir and his wife Allisun Rana. I want that money to be managed by a trustee, and I want that money to be there for my mother’s security so that she -- that money is secure, and it’s there for her security. That’s what I want. I don’t want the money in my pocket like a (INDISCERNIBLE). THE COURT: Well, sorry, if she owes you that money -- if she owes you that money, then any money you would get is -- would come from her. Then I’m very confused as to what it is you’re asking for here. MR. S.

RANA: Well, the money would come from the sale of the house, and instead of that money disappearing and going into Zahir’s and Ms. Baker’s pockets, for legal fees and et cetera, I want that money to go into a trustee’s hands, and I don’t want to touch it, and I want the trustee to go ahead and take care of my mother’s health needs, and whatever things that she requires. All her other money has disappeared. THE COURT: Nothing in this action determines that, sir. What happens with the money -- with your mother’s money? MR. S. RANA: I know.

But all I’m trying to tell you is -- all I’m -- THE COURT: So, what is the point of this action then? MR. S. RANA: Hold on. The point of the action – THE COURT: I’m -- now I’m very confused. You’re saying you -- MR. S. RANA: The point of the act -- go ahead, sorry. THE COURT: I think I -- I’m -- correct me if I’m wrong; I think I just heard you say that your mother owes you several hundred thousand dollars, but you don’t actually want that money back at all? MR. S. RANA: I said I want that money -- it’s my money, okay?

I want that money to go into the hands of an independent trustee for the benefit of my mother’s health. Did you hear that part? THE COURT: Okay. So, this is really -- are you actually telling me that this entire thing has nothing to do with who owns the money? It’s a battle for control over your mother’s assets? MR. S. RANA: It’s a battle of control over the money not disappearing, because my mother and father had lifelong savings that has all disappeared. Her cars have disappeared, things have disappeared, and I don’t want this to happen to the house.

The only reason why this is still intact is because of my lien. I want this money to go into a trustee’s hands. We can settle this thing right now. Okay? Very simple. Sell the house and put the money into the hands of a trustee and let them -- let it be there for my mother’s care. That’s it. There’s nothing else to it.

Why wouldn’t anybody want to do that? [ 48 ] While the fact that the litigation is being pursued for a collateral purpose does not preclude the existence of a valid underlying claim, the true character of this dispute – as a feud between brothers over the care and control of their aged and infirm mother’s estate – speaks both to the merits and the likelihood of costs being paid. [ 49 ] The Respondent, not surprisingly, takes the position that security for costs should be ordered now and argues that a great deal of preparatory work, with the associated costs, will be required before trial. [ 50 ] With respect to quantum, the Respondent proposed $25,000 and the Applicant raised no strenuous objection. [ 51 ] In these circumstances, I am satisfied that there are reasons to believe the Applicant will not pay costs, that any judgment for costs would be unenforceable for lack of assets in the jurisdiction, and that the suit is of tenuous merit.

Security for costs is appropriate and I order the Applicant to post security in the amount of $25,000. V. Conclusion [ 52 ] The recusal application is dismissed. Those portions of the Applicant’s application for further records that were not abandoned are dismissed. The Respondent’s application for security for costs is granted and the Applicant is ordered to post security in the amount of $25,000, with 45 days of the issuance of these reasons. [ 53 ] As the Respondent has be successful, he shall have his costs of these applications. VI.

Next steps [ 54 ] As all pre-trial motions are now concluded, I direct the parties each to prepare a draft Form 37, containing the information required by Rule 8.4(2). Within this draft form I also direct the parties to include a short description of the evidence each anticipated witness will give, together with how long they anticipate their evidence in chief will take.

These documents are to be exchanged, and provided to me, with 60 days of the release of these reasons. [ 55 ] Finally, as discussed at the hearing of these motions, if both parties wish to engage in a Court-assisted dispute resolution process, with a judge other than myself, I would be pleased to facilitate this. The parties should indicate their interest in this option as soon as possible.

Heard on the 15 th day of January, 2021. Dated at the City of Calgary, Alberta this 26 th day of February, 2021. N.E. Devlin J.C.Q.B.A. Appearances: Salim Rana, Self-Represented Litigant Applicant Erin J. Baker Jensen Shawa Solomon Duguid Hawkes LLP for the Respondent