R v Tican, 2023 ABKB 422

Court of King’s Bench of Alberta Citation: R v Tican, 2023 ABKB 422 Date: 20230714 Docket: 2301 09301 Registry: Calgary Between: Adrian Tican Proposed Appellant - and - His Majesty the King also known as His Majesty the King in Right of Alberta Proposed Respondent _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ [ 1 ] Adrian Tican (Mr. Tican) is a highly active and problematic litigant who operates in Alberta Courts. Mr.

Tican’s litigation activity has led to him being subject to strict steps to manage Mr. Tican’s interactions with the Court, and that Mr. Tican is subject to interim court access restrictions: Tican v Alamgir , 2022 ABKB 626 ( Tican #1 ), leave to appeal denied 2023 ABCA 115 ; Tican v Alamgir , 2022 ABKB 843 , leave to appeal denied 2023 ABCA 115. The interim court access restrictions imposed on Mr. Tican in Tican #1 mean that Mr. Tican must seek permission – “leave” – prior to initiating or continuing litigation before the Court of King’s Bench of Alberta. [ 2 ] Recently this Court has concluded that Mr.

Tican’s pattern of litigation misconduct is such that the Court has requested that

the Minister initiate a Judicature Act , RSA 2000, c J-2 ss 23-23.1 application that would impose global and indefinite court access restrictions on Mr. Tican in the Court of King’s Bench of Alberta: Tican v Alamgir , 2023 ABKB 325 ( Tican #4 ). On June 20, 2023, the Minister advised that he did not intent to initiate a Judicature Act Application with respect to Mr. Tican. [ 3 ] On April 28, 2023, my office received by email a package of materials from Jorge Alas (Mr. Alas) of the Shield Law Office. This email indicates that Mr. Alas is sending certain materials “... as agent on behalf of Mr. Adrian Tican ...”.

I interpret that to mean that Mr. Alas is operating as a conduit for Mr. Tican’s materials, rather than having been retained to act as Mr. Tican’s representative. I note that Mr. Alas’ name does not appear in other materials that were received on April 28, 2023. [ 4 ] Attached to Mr. Alas’ correspondence were: 1) an “Application by Adrian Tican/Appellant” seeking “leave to file a

summary conviction appeal”; 2) a six-page Affidavit of Adrian Tican sworn on April 25, 2023 that attaches:

a) a three-page Form CC8 “Notice of Appeal” that indicates Mr. Tican seeks to appeal Alberta Court of Justice decisions dated March 30 and April 4, 2023, which appears to be a traffic conviction for $500;

b) certain docket records;

c) a letter requesting Transcript Management Services prepare transcripts; and

d) the Tican #1 “Interim Litigation and Litigant Management Steps” order; and 3) a letter from Mr. Tican dated April 25, 2023 that states in part: Please find attached, a proposed notice of appeal, with supporting affidavit ... The purpose of the filing and/or communication is to seek permission so as to have this attached proposed notice of appeal filed ... [ 5 ] A second package of materials from Mr. Tican was subsequently forwarded to my office. These materials were addressed to the Calgary Clerks Manager, and appear to have been received by the Court around May 9, 2023.

This second set of documents are not exact copies of the April 28, 2023 package. For example, handwriting differs. That said, as far as I can identify, the two packages otherwise appear to be the same. [ 6 ] This Memorandum of Decision evaluates whether Mr. Tican’s proposed appeal of a traffic ticket penalty imposed by the Alberta Court of Justice should receive leave to be filed. 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 ResourcesLimited, 2021 ABQB 208; Knutson (Re), 2021 ABQB 367; McMunn v Hok, 2021 ABQB 550; Canadian Imperial Bank of Commercev Hayden, 2021 ABQB 985, leave to appeal to SCC refused, 40284 (4 May 2023); Rana v Rana, 2022 ABQB 79; Canadian ImperialBank 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 vMacDonald, 2022 ABQB 274; Royal Bank of Canada v Anderson, 2022 ABQB 354; Canadian Imperial Bank of Commerce vHayden, 2022 ABQB 498; Bissky v MacDonald, 2022 ABKB 774; Hayden v Canadian Imperial Bank of Commerce, 2023 ABKB100; Ubah v Ubah, 2023 ABKB 111; Rana v Rana, 2023 ABKB 295); 3) where the abusive litigant refuses to provide the proposed filing (Re Thompson, 2018 ABQB 355; Onischuk (Re), 2019 ABQB229; 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 transcriptof a proceeding proposed for appeal (Alberta Treasury Branches v Hok, 2018 ABQB 316; Canadian Imperial Bank of Commerce vHayden, 2021 ABQB 985, leave to appeal to SCC refused, 40284 (4 May 2023); Rana v Rana, 2022 ABQB 111; Hayden v AlbertaHealth 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, 2023ABKB 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) ofthe Alberta Rules of Court, Alta Reg 124/2010; Re Gauthier, 2018 ABCA 14 at para 8.

A litigant who is denied leave to initiate orcontinue litigation by the Court of King’s Bench of Alberta may, however, seek leave from the Supreme Court of Canada. III. Analysis [14] I dismiss Mr. Tican’s leave application on multiple bases. A. No Transcript [15] First, Mr. Tican has not supplied a transcript of the proceedings he seeks to appeal. As Moreau CJ concluded in AlbertaTreasury Branches v Hok, 2018 ABQB 316 at paras 22-23, failure to provide a transcript of proceedings is fatal to a leave applicationwhere the proposed appellant challenges the lower court decision-maker’s conduct. For example, Mr.

Tican’s proposed Notice to Appealalleges, among other things, that the trial decision maker: 1) failed to grant an adjournment to obtain counsel; 2) improperly denied Mr. Tican arguing The Constitution Act, 1982,

Schedule B to the Canada Act 1982 (UK), 1982, c 11 (Charter)issue; and 3) gave inadequate oral reasons. [16] This Court cannot evaluate the potential merit of Mr. Tican’s complaints without the relevant transcript or transcripts. Mr.Tican has the onus to establish on a balance of probabilities that he has a reasonable basis for his proposed appeal. Instead, Mr. Tican hasargued, for example, that the oral reasons in the trial proceeding were inadequate, but Mr. Tican provides no evidence at all of whatthose oral reasons were. The failure to provide transcript(

s) is a first basis on which I refuse leave to Mr. Tican’s candidate appeal. B. Inadequate Pleadings [17] The purported grounds for appeal in the proposed Notice of Appeal and Mr. Tican’s Affidavit identify a number of issues,some of which are not explained in any substantive manner. For example, in his Affidavit Mr. Tican states: ...

The assessment of the credibility contest undertaken by the learned presiding traffic court sitting justice of the peace/commissioner didnot outline how such credibility contest between the evidence of the accused and that provided by the 'officer' or crown's witness wasproperly established and satisfied. [18] This claim does not establish the basis for Mr. Tican’s proposed appeal. What was the disputed evidence? Who gave thatevidence? Is this an allegation the decision-maker got the outcome wrong, gave inadequate reasons, or some kind of complaint aboutformalities? The onus in this process is on Mr.

Tican to explain why he has a viable appeal. This kind of complaint does not meet thatthreshold. [19] Similarly, Mr. Tican’s proposed Notice of Appeal states a ground of appeal is “... failed to permit the Appellant to raise acharter issue as a result of, inter alia, the officer having entered his vehicle without a warrant and content ...”.

First, this purported groundfor appeal fails to satisfy the strict requirement for particulars set by the Supreme Court of Canada in Mackay v Manitoba, (SCC), [1989] 2 SCR 357, 61 DLR (4th) 485, that a factual foundation, or an alleged factual foundation, is an absolute requirementfor pleadings that seek potential relief pursuant to the Charter. Second, this Charter complaint is not in any way obviously related to Mr.Tican’s proposed appeal. How is an unidentified individual, perhaps a law enforcement officer, entering into Mr. Tican’s vehicle, underunknown circumstances, relevant to Mr.

Tican’s claim that he did not commit the wrongdoing that led to a traffic ticket?

[ 20 ] I conclude that Mr. Tican does not simply only fail to provide a reasonable basis for his proposed Notice of Appeal, but, instead, that his pleadings and arguments are so defective that the proposed respondent cannot defend itself, and the Court cannot control the proceedings, so that these inadequate pleadings are an abuse of the Court’s processes: GH v Alcock , 2013 ABCA 24 at para 58 ; Mancuso v Canada (National Health and Welfare) , 2015 FCA 227 at paras 16-20 ; Unrau v National Dental Examining Board , 2019 ABQB 283 at para 629 . That is a separate second basis on which I refuse Mr.

Tican’s request for leave to file his proposed appeal. C. Failure to Establish Reasonable Grounds for Appeal [ 21 ] On those occasions in which Mr. Tican provides some explanation of the basis for his proposed appeal, what Mr. Tican has submitted does not establish a reasonable ground for appeal. For example, Mr. Tican’s traffic conviction was, apparently, unlawful passing in a playground zone. Mr. Tican takes strong exception to this, and “expressly” and “vehemently” denies the illegal activity. However, Mr. Tican provides no basis at all to substantiate that claim, and why that is reasonable.

He instead says “evidence” (that is not provided in his leave application materials) established the ticketed vehicle is not his vehicle. [ 22 ] Another allegation in Mr. Tican’s Affidavit is: ...

For reasons unknown, I feel and verily believe that the learned Trial judge allowed or may have allowed hearsay to be relied upon, given that the person who testified on behalf of Crown, specifically admitted he had not prepared the amended information, and that his initial ticket was withdrawn, nor did such officer who attended and gave evidence under oath witness the preparation of the amended information. ... [ 23 ] How any of this is relevant is, at best, opaque. Amorphous claims of this kind do not satisfy the threshold to establish a reasonable basis for an appeal, particularly given Mr.

Tican has the onus to establish grounds for his proposed Notice of Appeal, and to “put his best foot forward” in presenting the basis for his proposed litigation. This deficiency is a third independent basis on which I refuse to grant Mr. Tican leave to file his proposed Notice of Appeal with the Court of King’s Bench of Alberta. IV. Conclusion [ 24 ] Mr. Tican’s proposed appeal is denied leave. That result is final; Mr. Tican is prohibited from any further attempt to challenge the traffic ticket conviction. If Mr.

Tican disagrees with this result, he should seek leave from the Supreme Court of Canada. [ 25 ] In Mr. Tican’s materials, Mr. Tican seeks to conceal the existence of his application, and the outcome of his leave request. The Court should “... provide a response to me with respect to this matter, only via letter and/or email ...” (emphasis in original). I have previously evaluated and commented upon Mr. Tican’s efforts to remove published court judgments and otherwise limit public knowledge of Mr. Tican’s abusive litigation and illegal activities: Tican #4 at paras 11-31 . I drew a negative inference from Mr.

Tican’s attempts to mask and hide his litigation activities in that Memorandum of Decision, and I make the same finding here as well. [ 26 ] I very strongly recommend that Mr. Tican retain counsel to assist Mr. Tican in his extensive litigation before this and other Courts. I also caution Mr. Tican that if he continues to abuse this Court’s leave to initiate and continue litigation processes, then Mr. Tican may be subject to r 10.49(1) of the Alberta Rules of Court penalties. Dated at the City of Edmonton, Alberta this 14 th day of July, 2023. K.G. Nielsen A.C.J.C.K.B.A.

Appearances by document: Adrian Tican Self-represented Litigant