Esfahani v Samimi, 2024 ABCA 16

In the Court of Appeal of Alberta Citation: Esfahani v Samimi, 2024 ABCA 16 Date: 20240118 Docket: 2301-0237AC Registry: Calgary Between: Haleh Rabbani Esfahani Respondent - and - Hadi Samimi Applicant _______________________________________________________ Reasons for Decision of The Honourable Justice Jo'Anne Strekaf _______________________________________________________ Application for Permission to Appeal _______________________________________________________ Reasons for Decision of The Honourable Justice Jo'Anne Strekaf _______________________________________________________

[ 1 ] The parties were married in 2007 and separated in 2018. There are two children of the marriage. Since January 2019, the parties have been involved in family litigation with a complex and acrimonious procedural history. A case management justice was appointed in October 2021. [ 2 ] On September 8, 2023, the respondent wrote to the case management justice asking for permission to

schedule an application in morning chambers to: (1) dispense with the applicant’s consent to apply for passports for the children, and (2) vary a May 2019 parenting order to add a police enforcement clause. By email dated September 8, the case management justice granted the respondent permission to bring her application in morning chambers, thereby allowing the parties to bypass family docket court. [ 3 ] The applicant seeks permission to appeal the case management justice’s September 8 email direction pursuant to Rule 14.5(1) (

b) of the Alberta Rules of Court , Alta Reg 124/2010 . He argues that the respondent’s method of obtaining permission to

schedule an application in morning chambers failed to adhere to the procedural rules governing the case management process. [ 4 ] To obtain permission to appeal under Rule 14.5(1) (b), an applicant must establish: (1) a serious question of general importance; (2) a reasonable chance of success on appeal; and (3) that an appeal will not unduly hinder the progress of the action or cause undue prejudice, without any proportionate benefit: Pander v Chopra , 2023 ABCA 249 at para 5 ; Kenneth John Braithwaite Professional Corporation v 1006868 Alberta Ltd , 2021 ABCA 425 at para 8 . [ 5 ] The applicant has not satisfied the test for permission to appeal for several reasons.

First, his principal objection is that the case management justice should not have directed that the application proceed in morning chambers in response to an email message from opposing counsel. This does not raise a serious question of general importance. Case management justices have broad discretion to manage an action to “promote and ensure the fair and efficient conduct and resolution of the action” (Rule 4.13) and may “make an order to facilitate an application, proceeding, questioning or pre-trial proceeding” (Rule 4.14(c)).

Second, the applicant has not demonstrated a reasonable chance of success on appeal. Scheduling decisions are discretionary and there is no good reason to question the reasonableness of the case management justice’s decision. Moreover, the issue raised, which is whether the matter should have proceeded in morning chambers, is moot as the application has already been heard. On November 23, 2023, the respondent was successful on her application to dispense with the applicant’s consent to apply for passports for her children and add a police enforcement clause to the May 2019 parenting order.

As a result, there is no reasonable prospect of success on appeal. [ 6 ] Finally, the applicant sought to file additional materials on the day prior to the scheduled hearing of this application, which included a three-page letter, three affidavits which he had sworn in the King’s Bench proceedings, an additional order granted in the King’s Bench proceedings and correspondence with opposing counsel. The respondent objected to the late filing of these materials.

I did not consider the materials as they were not filed 10 days in advance of the hearing as required by Rule 14.40(2) and the applicant’s advice that he did not know he needed to file materials from the King’s Bench proceedings was not a satisfactory explanation for failing to do so. The applicant filed other materials along with his application as required. Moreover, there was no indication that the materials were before the case management justice in relation to the decision from which permission to appeal was sought. [ 7 ] The application for permission to appeal is denied.

Application heard on January 11, 2024 Reasons filed at Calgary, Alberta this 18th day of January, 2024 Strekaf J.A. Appearances: A. Hayher, KC J. Lantz (no appearance) for the Respondent

Applicant H. Samimi