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CIVIL PROCEDURE - Proceedings taken in wrong court or wrong procedure used - Vexatious litigants

Tuesday, December 08, 2020 @ 6:43 AM  


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Appeal by Holland from the dismissal of her application for leave to file a petition to challenge the stay of her private prosecution. The appellant was subject to vexatious litigant orders pronounced pursuant to provincial legislation. The appellant swore a private information. The Crown assumed conduct of the proceedings and directed a stay of proceedings. The application judge found the vexatious litigant order applied to all proceedings in the Supreme Court, whether civil or criminal in nature.

HELD: Appeal allowed. The application to challenge the stay of a prosecution was criminal in nature and was regulated by the Criminal Code and the Criminal Rules of the Supreme Court of British Columbia. The Legislature, in passing vexatious litigant legislation, did not intend to regulate criminal procedure. The vexatious litigant orders only applied to civil matters. To the extent the general language of s. 18 of the Supreme Court Act and s. 29 of the Court of Appeal Act left the provisions open to an interpretation that would permit the regulation of criminal procedure, they were read down to only authorize orders that applied to matters within provincial legislative authority. The appellant ought to have brought an application for certiorari rather than a petition for judicial review. The petition was quashed without prejudice to the appellant’s right to bring a proper application under the Criminal Rules to challenge the direction to stay.

Holland (Re), [2020] B.C.J. No. 1737, British Columbia Court of Appeal, R.J. Bauman C.J.B.C., D.C. Harris and G.B. Butler JJ.A., November 6, 2020. Digest No. TLD-December72020003