Rana v Rana, 2023 ABKB 324

Court of King’s Bench of Alberta Citation: Rana v Rana, 2023 ABKB 324 Date: 20230530 Docket: 1501 02369 Registry: Calgary Between: Salim Rana Proposed Applicant - and - Zahir Rana, Attorney for Gulzar Rana Proposed Respondent _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ I. Introduction [ 1 ] Salim Rana (Mr. S.

Rana), was made subject to indefinite and global court access restriction gatekeeping pursuant to Judicature Act , RSA 2000, c J-2 ss 23-23.1 in a Memorandum of Decision reported as Rana v Rana , 2022 ABQB 139 , that has been confirmed by the Court of Appeal of Alberta: Rana v Rana , 2022 ABCA 172 , leave to appeal to SCC refused, 40231 (9 March 2023); Rana v Rana , 2022 ABCA 378 , leave to appeal to SCC refused, 40580 (30 March 2023). The effect of those court access restrictions is that Mr. S. Rana must seek permission – “leave” – prior to initiating litigation and litigation steps.

[ 2 ] Mr. S. Rana is in a dispute with his brother, Zahir Rana (Mr. Z. Rana) over Mr. Z. Rana’s conduct of his mother Gulzar’s affairs: Rana v Rana , 2022 ABQB 455 ( Rana Setting Trial Decision ). Mr. S. Rana is a self-represented litigant, while Mr. Z. Rana has been represented by counsel throughout this litigation. After many years of pre-trial applications and decisions, and two and half years of case management, on June 20, 2022 Devlin J issued Reasons and an Order to Set Trial of the inter-sibling dispute: Rana Setting Trial Decision . The Rana v Rana trial is now scheduled for February 5-9, 2024.

Throughout the protracted process that led to the June 20, 2022 Reasons, Mr. S. Rana engaged in numerous unsuccessful applications and collateral proceedings to the central dispute. That abusive conduct led to the court access restrictions now in force against Mr. S. Rana. Mr. S. Rana has been consistently both persistent and aggressive in his conduct of this litigation. For example, Mr. S. Rana has sought leave from the Supreme Court of Canada on no less than 23 occasions. In each instance, Mr. S. Rana’s leave application was dismissed. [ 3 ] During this process, Mr. S.

Rana also sought that the Court of King’s Bench of Alberta direct that Mr. S. Rana is authorized to visit with his mother, despite that step being rejected by Mr. Z. Rana. In a written decision reported as Rana v Rana , 2022 ABQB 440 ( Rana Visit Decision ), Devlin J, who was then the Case Management Justice, reviewed evidence from both parties, and concluded that despite the conflict between the two siblings, that Mr. S. Rana should be permitted to visit his mother within 90 days of the Memorandum of Decision: Rana Visit Decision , para 90 .

The Rana Visit Decision also put in place a detailed structure for how that visit would occur: Rana Visit Decision , paras 36-38 . [ 4 ] However, no visit happened. Instead, Mr. S. Rana chose to appeal the Rana Visit Decision . That appeal was denied leave by Wakeling JA on August 16, 2022: Rana v Rana , 2022 ABCA 270 ( Rana Visit Appeal ). Those Reasons for Decision appear to indicate that Mr. S. Rana rejected him not having a permanent and ongoing right to visit his mother as a “constitutional right.” Mr. S.

Rana then sought leave to appeal the Rana Visit Appeal , which was denied on March 30, 2023: Rana v Rana (30 March 2023), Ottawa 40474 (SCC). [ 5 ] On April 26, 2023, Mr. S. Rana submitted to my office a request for leave to file a new application that would permit Mr. S. Rana to visit his mother. The conditions for the proposed visit are the same as those authorized in the Rana Visit Decision at paras 36- 38 . The proposed Application for Visitation was accompanied by a written Application for Leave to File, and two Affidavits of Mr. S.

Rana, sworn on April 22, 2023. [ 6 ] I conclude that leave should be granted in part for Mr. S. Rana to file the proposed Application for Visitation. However, with Mr. S. Rana’s litigation record, certain pre-conditions should also apply. II.

Test for Leave to Initiate Litigation [ 7 ] “... [A] person subject to court access control is presumed to engage in illegitimate litigation unless the Court is satisfied otherwise. ...”: Re Thompson , 2018 ABQB 87 at para 19 , aff’d 2018 ABCA 111 , leave to appeal to SCC refused, 38204 (14 February 2019). [ 8 ] Permission to initiate litigation or continue stayed litigation both test the merit of Court activities on the same standard.

A person subject to court access restrictions must: 1) establish reasonable grounds for the litigation; and 2) depose fully and completely as to the facts and circumstances surrounding the proposed claim or proceeding. ( Re Thompson , 2018 ABQB 87 at paras 19 , 27; VWW v Wasylyshen , 2013 ABQB 327 at para 42 , aff’d 2014 ABCA 121 .) [ 9 ] This threshold, that must be established on a balance of probabilities, is not a high one, and, in many ways, parallels the test for

Summary Judgment: Re Thompson , 2018 ABQB 87 at paras 19 , 26.

The person subject to Court access leave restrictions is expected to put his or her “best foot forward” to establish the basis to initiate or continue an Action: Re Thompson , 2018 ABQB 87 at paras 26-27. [ 10 ] The documents necessary to seek leave are an affidavit to provide evidence, and, in the case of a new Action, Application, Appeal, or other litigation step, a copy of the proposed initiating filing: e.g., Re Moore , 2018 ABQB 261 ; Latham (Re) , 2018 ABQB 906 . [ 11 ] Leave may be granted in part: Latham (Re) , 2018 ABQB 906 ; Belway v Lalande-Weber , 2017 ABCA 108 at para 10 , leave to appeal to SCC refused, 37708 (21 December 2017). [ 12 ] Leave submissions to initiate or continue litigation may also be rejected: 1) where the materials do not satisfy the criteria set out in the Court Access Restriction Order ( Re Gauthier , 2018 ABQB 99 ; Re Botar , 2018 ABQB 193 ; Thompson v Alberta Labour Relations Board , 2018 ABQB 220 , leave to appeal to SCC refused, 38267 (31 January 2019); Re Thompson , 2018 ABQB 355 , leave to appeal to SCC refused, 38266 (31 January 2019); Association of Professional Engineers and Geoscientists of Alberta v Drover , 2021 ABQB 511 ; Richardson v MacDonald , 2022 ABQB 274 ); 2) if the submissions exhibit indicia of abusive litigation ( ET v Calgary Catholic School District No 1 , 2017 ABCA 349 at para 12 , leave to appeal to SCC refused, 38081 (8 November 2018); Alberta Treasury Branches v Hok , 2018 ABQB 316 ; Thompson v Alberta Labour Relations Board , 2018 ABQB 220 ; Re Botar , 2018 ABQB 193 ; Trinity Place Foundation of Alberta v Templanza , 2019 ABQB 45 ; Onischuk (Re) , 2019 ABQB 229 ; Fletcher v Davidson & Williams LLP , 2019 ABQB 396 ; Ubah v Canadian Natural Resources Limited , 2021 ABQB 208 ; Knutson (Re) , 2021 ABQB 367 ; McMunn v Hok , 2021 ABQB 550 ; Canadian Imperial Bank of Commerce v Hayden , 2021 ABQB 985 , leave to appeal to SCC refused, 40284 (4 May 2023); Rana v Rana , 2022 ABQB 79 ; Canadian Imperial Bank of Commerce v Hayden , 2022 ABQB 97 , leave to appeal to SCC refused, 40284 (4 May 2023); Rana v Rana , 2022 ABQB 111 ;

Rana v Rana , 2022 ABQB 114 ; Fiset v Feeney , 2022 ABQB 211 ; Hayden v Alberta Health Services , 2022 ABQB 335 ; Richardson v MacDonald , 2022 ABQB 274 ; Royal Bank of Canada v Anderson , 2022 ABQB 354 ; Canadian Imperial Bank of Commerce v Hayden , 2022 ABQB 498 ; Bissky v MacDonald , 2022 ABKB 774 ; Hayden v Canadian Imperial Bank of Commerce , 2023 ABKB 100 ; Ubah v Ubah , 2023 ABKB 111 ); 3) where the abusive litigant refuses to provide the proposed filing ( Re Thompson , 2018 ABQB 355 ; Onischuk (Re) , 2019 ABQB 229 ; Hayden v Alberta Health Services , 2022 ABQB 335 ); 4) where the abusive litigant provides false information or fails to provide necessary information ( Re Gauthier , 2018 ABQB 99 ; Rana v Rana , 2022 ABQB 114 ; Bissky v MacDonald , 2022 ABKB 774 ); 5) where the abusive litigant fails to provide materials that are required to evaluate the proposed litigation step, such as a transcript of a proceeding proposed for appeal ( Alberta Treasury Branches v Hok , 2018 ABQB 316 ; Canadian Imperial Bank of Commerce v Hayden , 2021 ABQB 985 , leave to appeal to SCC refused, 40284 (4 May 2023); Rana v Rana , 2022 ABQB 111 ; Hayden v Alberta Health Services , 2022 ABQB 335 ); and 6) where the Court has no jurisdiction over the matter ( Hayden v Alberta Health Services , 2022 ABQB 335 ; Ubah v Ubah , 2023 ABKB 111 ). [ 13 ] There is no appeal to the Court of Appeal of Alberta of a decision to deny leave to initiate or continue litigation: r 14.5(4) of the Alberta Rules of Court , Alta Reg 124/2010 ; Re Gauthier , 2018 ABCA 14 at para 8 .

A litigant who is denied leave to initiate or continue litigation by the Court of King’s Bench of Alberta may, however, seek leave from the Supreme Court of Canada. III. Analysis [ 14 ] Several factors are involved in evaluating Mr. S. Rana’s leave request. First, the issue of whether Mr. S. Rana should be permitted to visit his mother has already been considered by this Court, and, in the Rana Visit Decision , Devlin J made a number of important conclusions: 1) despite the mother’s current state, she would want to see her son Mr. S. Rana, and others in Mr. S. Rana’s family; 2) whatever else, Mr. S.

Rana’s affection for his mother is genuine; and 3) no matter the questionable, if not malicious, character of Mr. S. Rana’s other litigation, his application to see his mother had no bad intent component. [ 15 ] The Supreme Court of Canada has recently clarified the implications in which an issue re-emerged after another judge of the same Court has made a finding of fact and/or law, what the Court called “horizontal stare decisis”: R v Sullivan , 2022 SCC 19 ; R v Kirkpatrick , 2022 SCC 33 . Succinctly, I have a very restricted basis on which to reject Justice Devlin’s conclusions. In this context, where Mr. S.

Rana must establish a reasonable basis on a balance of probabilities for him to seek to visit his mother, the conclusions of Devlin J in the Rana Visit Decision satisfy that requirement. [ 16 ] I, therefore, conclude that Mr. S. Rana’s Application for Visitation should be granted leave to be filed with the Court of King’s Bench of Alberta. However, leave is only granted in part. While I have determined that Mr. S.

Rana’s Application for Visitation should proceed, I also conclude that his current leave request and his proposed Application for Visitation are an abuse of this Court. [ 17 ] I conclude that the text of Mr. S. Rana’s proposed Leave to Visit Application, and his written application for why he should be granted leave, are both prohibited attempts to re-litigate settled issues, and therefore an abuse of the Court. Mr. S. Rana advances a constitutional claim and argument in his materials, based in The Constitution Act , 1982,

Schedule B to the Canada Act 1982 (UK), 1982, c 11 ( Charter ) s 7, and international treaties, including the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights . As I understand Mr. S. Rana’s materials, he appears to claim these authorities trump or invalidate Canadian common law and legislation. [ 18 ] Mr. S. Rana before the Court of Appeal of Alberta claimed to have a “constitutional right” to access his mother, and that was rejected by the Court: Rana Visit Appeal at para 52 . More generally, Wakeling JA characterized Mr. S.

Rana’s challenge to the Rana Visit Decision as “... a hopeless appeal.”: Rana Visit Appeal at para 55 . That did not end Mr. S. Rana’s pursuit of this claim, since the March 31, 2023 Supreme Court of Canada Bulletin

summary of the Rana v Rana , Docket 40474 action states that Mr. S. Rana’s issues for appeal included: “Does the applicant, and his descendants, have a fundamental right to visit his mother regularly and permanently?” [ 19 ] I, therefore, conclude that Mr. S. Rana now raises arguments that were rejected by two Courts that are superior to the Court of King’s Bench of Alberta. That makes this Leave Application and the proposed Application for Visitation a collateral attack on the Rana Visit Appeal and the Supreme Court of Canada Rana v Rana (30 March 2023), Ottawa 40474 (SCC) leave to appeal decision.

This conclusion is a first basis on which I reject parts of Mr. Rana’s Application. I also observe that Mr. Rana has done this exact thing before, in an earlier Leave to File Application that was rejected on May 15, 2023 in Rana v Rana , 2023 ABKB 295 . [ 20 ] Third, Mr. S. Rana’s Charter and treaty claim is not one that is suitable for a self-represented litigant.

Slatter JA in Ubah v Ubah , 2023 ABCA 158 at para 4 ruled that a precondition to grant leave is: ... constitutional arguments are presented by trained professionals. ... in any event any such challenge by a vexatious litigant should generally only proceed if the arguments are made by counsel. [ 21 ] Mr. S. Rana’s constitutional claims are also rejected on this basis. I, therefore, require that prior to filing his Application for Visitation and any supporting materials, Mr. S. Rana submit to me a revised Application for Visitation that removes these abusive and

prohibited arguments. [ 22 ] Mr. S. Rana has an extended problematic litigation record, including numerous findings that Mr. S. Rana intentionally uses Court processes out of malice and with bad intent, to inflict harm and cost, and that Mr. S. Rana is a “litigation terrorist”: Rana v Rana , 2022 ABQB 139 at paras 83-85 . Mr. S. Rana is known to refuse to pay costs awarded against him: Rana v Rana , 2022 ABCA 314 . More recently, the Court of Appeal of Alberta has ruled that Mr. S. Rana is prohibited from initiating proceedings in that Court, until Mr. S.

Rana pays all outstanding cost awards: Rana v Rana , 2023 ABCA 112 at paras 6-8 . [ 23 ] In this context, and taking into account Mr. S. Rana’s very problematic litigation record, and his refusal to pay costs, I impose certain preconditions that Mr. S. Rana must complete prior to filing the Application for Visitation. Mr. S.

Rana shall: 1) pay into court security for costs of $10,000, for the purpose of addressing any future unfavourable costs awards that result from the Application for Visitation; 2) pay a $2,500 r 10.49(1) of the Alberta Rules of Court penalty for engaging in abusive re-litigation during this leave process, that is to be paid to the Clerk of the Court forthwith; and 3) provide proof that Mr. S.

Rana has paid all outstanding r 10.49(1) of the Alberta Rules of Court penalties imposed by the Court of King’s Bench of Alberta, including the $2,500 amount above, and the $5,000 r 10.49(1) of the Alberta Rules of Court penalty imposed in Rana v Rana , 2023 ABKB 295 . [ 24 ] Once Mr. S. Rana completes these preconditions, and provides a satisfactory revised Application for Visitation, the Court will

schedule and structure the substantive Application for Visitation process. IV. Conclusion [ 25 ] Mr. S. Rana’s request for leave to file the Application for Visitation is granted in part and with conditions. Counsel for Mr. Z. Rana shall prepare the Order giving effect to this Memorandum of Decision. Mr. S. Rana’s approval of that Order is dispensed with pursuant to r 9.4(2)(

c) of the Alberta Rules of Court . [ 26 ] Mr. S. Rana shall be served this Memorandum of Decision and corresponding Order by email. I direct a copy of this Memorandum of Decision is provided to Counsel for Mr. Z. Rana. As indicated above, if Mr. S. Rana disagrees with the outcome of his leave Application, then Mr. S. Rana should seek leave from the Supreme Court of Canada. Dated at the City of Edmonton, Alberta this 30 th day of May, 2023. K.G. Nielsen A.C.J.C.K.B.A. Appearances by Written Submission: Salim Rana Self-represented Litigant Andrew Wilson and Erin Baker JSS Barristers No appearance