Vexatious litigant's application for permission to appeal fails legal test: Alberta Court of Appeal

The Alberta Court of Appeal has outlined the test applicable to an application for permission to appeal filed by a vexatious litigant.

In Rana v. Rana, 2022 ABCA 270, Associate Chief Justice John Rooke declared Salim Rana a vexatious litigant in the case of Rana v. Rana, 2022 ABQB 139. In June 2022, the case management judge granted an order under the Personal Directives Act, RSA 2000, c P-6 allowing Salim to visit his mother under specific conditions.

The judge added that the decision in no way determined whether any future visits should be permitted, which remained in Zahir Rana’s purview.

Salim sought permission to appeal the visitation order.

Since Salim was a vexatious litigant, the appellate court was required to determine the norms governing permission to appeal made by vexatious litigants. The court considered three possible solutions: the first test was under the Alberta Rules of Court, Alta Reg 124/2010, the second under the Judicature Act, RSA 2000, c J-2, and the third test contained conditions set under both statutes.

Test combined statute and jurisprudence

The test in the Rules of Court dealt with appeals of the vexatious litigant order, but not on permission to appeal, said the court. According to Thompson v. Procrane Inc. (Sterling Crane), 2016 ABCA 71, the test for permission to appeal is generally that there is an important question of law, there is a reasonable chance of success on appeal, and that delay will not unduly hinder progress of the action, said the court.

Permission to appeal was considered a proceeding under the test outlined in the Judicature Act, said the court.

The appellate court ruled that the third test captured the appropriate norm. It required the applicant to pass five tests: whether the application for permission to appeal is an abuse of process, whether the applicant had reasonable grounds for applying, whether the proposed appeal presents a question of law, whether there is reasonable chance of success on appeal, and whether the appeal will unduly burden the progress of the action.

In applying this test, the appellate court found that Salim failed to identify an important question of law in challenging the order. Not only did Salim not have a constitutional right to see his mother if she did not wish to see him, her agent also decided that it was not in the mother’s best interests to see him, said the court.

Having failed to satisfy the court, the application for permission to appeal was dismissed.