2011 BCCA 86 Dima v. Dima The Court of Appeal for British Columbia CHIASSON, J.A.: Mr. Dima appeals the dismissal by a Supreme Court Judge (the "Chambers judge") of his appeal from the order of a Provincial Court judge prohibiting him from bringing applications in a family law proceeding in that court and from accessing his court file without the permission of a judge of the Provincial Court. The order was made on the judge's own motion and in Mr. Dina's absence. Before turning to the merits of the appeal, I provide some background and analysis. This is the second time the parties have been to this Court as a result of their ongoing matrimonial proceedings in the Provincial Court. The first appeal in this Court was dismissed. Being cavalier with the rules and procedures of any court is not in Mr. Dima’s best interests. This very well may have led him into the present predicament in which he faces what usually is described as a “vexatious litigant” order. Frustrating the processes of a court and a litigation opponent often is counterproductive. It generally does not facilitate obtaining justice. I recognize that a litigant is entitled to bring proceedings which he or she considers to be appropriate and a court will be reluctant to constrain a litigant from doing so, but some judgment must be exercised by the litigant in cases where there are a large number of skirmishes. The order of the Provincial Court judge raises a number of issues. The first is a question whether the judge had the jurisdiction to make the order. Section 18 of the Supreme Court Act, R.S.B.C. 1996, c. 443 gives the Supreme Court the authority, on application, to make a vexatious litigant order if “the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court …”. Section 29 of the Court of Appeal Act, R.S.B.C. 1996, c. 77 is to like effect. There is no such provision in the Provincial Court Act, R.S.B.C. 1996, c. 379.  This Court has acted on the Court’s own motion to issue vexatious litigant orders on the basis of a power grounded in avoiding an abuse of process. Whether the Provincial Court has such power is an open question.  It was suggested that the Provincial Court (Family) Rules, particularly Rule 6(3)(k), provide a basis for the order made in this case. In my view, a rule cannot give jurisdiction. The second issue is the process by which the order was made. The respondent did not ask for it. The Provincial Court judge acted on his own motion and in the absence of Mr. Dima. The judge appears to have been frustrated by Mr. Dima’s withdrawal of a number of applications and his failure to attend the proceeding before the judge at which counsel for the respondent and an interpreter were in attendance, but it is questionable whether a vexatious litigant order should have been made without giving Mr. Dima an opportunity to be heard and, the matter having been dealt with in his absence (ex parte), at least, giving him a specific right to apply to have the order set aside on short notice. The third issue is the reach of the order, which prohibited Mr. Dima from accessing his court file. I now turn to the order under appeal in this Court. The vexatious litigant order was not an interim order under the FRA. Section 9 of the FRA deals with interim orders. A vexatious litigant order is not included. The order here is an interlocutory order made in a proceeding under the FRA. If the Abbotsford registry was a “designated registry” pursuant to s. 4 of the Provincial Court Act, there would be an appeal to the Supreme Court pursuant to s. 4(4), but it is not. Mr. Dima contends that the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 does not apply to the Provincial Court. I do not agree. In my view, the Chambers judge correctly dismissed Mr. Dima’s appeal. If he has any redress it must be by way of judicial review. During the course of the hearing in this Court, there was discussion concerning asking the Provincial Court judge to vacate the vexatious litigant order. If the order were vacated it would avoid requiring the parties to deal with the issues I have identified in a proceeding that might involve the Attorney General and which likely would examine the jurisdiction of the Provincial Court to issue a vexatious litigant order, the circumstances under which such an order should be granted and the reach of the jurisdiction if the Provincial Court has jurisdiction. If Mr. Dima’s future conduct appears to warrant such an order, an application could be made under s. 18 of the Supreme Court Act with no attendant concern with jurisdiction. I would dismiss this appeal. MACKENZIE J.A.: I agree. SAUNDERS J.A.: I agree. MACKENZIE J.A.:The appeal is dismissed.