Despite being British Columbia’s highest level of court, the BC Court of Appeal has been criticized by both lawyers and self-represented litigants alike for its complicated rules of procedure. Fortunately, on May 24, 2022, the Lieutenant Governor in Council ordered an overhaul to the Court of Appeal’s statutory regime, including its rules of procedure, in response to public consultations made over the past years.
Effective July 18, 2022, an amended Court of Appeal Act(the “Amended Act“) will come into force. Along with the Amended Act, the current Court of Appeal Rules (the “Old Rules“) will be replaced with a shorter and simplified version (the “New Rules“). The New Rules are intended to help both lawyers and self-represented litigants conduct appeal proceedings efficiently by making the procedures easier to understand and comply with.
Some of the more significant changes are summarized as follows:
1. While the Old Rules were organized by task, the New Rules are organized logically by stages in the appeal process. Most of the New Rules now contain helpful “how to” explanations that clearly identify the relevant procedures, applicable New Rules, and pertinent deadlines. In effect, the New Rules are intended to be an easier step-by-step outline for litigants to follow, with cross-references to other relevant Rules.
2. Many litigants found the Old Rules confusing with respect to the Rules around “leave to appeal” (or permission from the Court to appeal). The New Rules clarify the requirements for applying for leave to appeal. For example, a party bringing an appeal or cross appeal must apply for leave to appeal if any of the following apply:
(i) the order being appealed is a limited appeal order;
(ii) an enactment, other than the Court of Appeal Act, requires leave from the court or a justice to appeal or cross appeal the order being appealed; or
(iii) the party bringing the appeal or cross appeal does not know whether leave of the court is required to bring the appeal or cross appeal.
3. In addition, a party must file and serve a notice of appeal regardless of whether leave to appeal is, or may be, required. Upon being served with a notice to appeal, parties have 15 days to bring a cross-appeal pursuant to Rules 8 to 10 of the New Rules. This means you can no longer wait until the application for leave to appeal is heard before bringing a cross-appeal.
4. The Old Rules were also viewed as less clear on the specific rules and timelines for filing and serving documents. In addition to timing, the New Rules now set out and clarify the general requirements for filing and serving documents. Specifically, if a rule requires a person to file and serve a document, the person must file the document and serve a filed version of the document on each party to the appeal unless a contrary intention appears in the rule.
5. As a means to promote efficient hearings, the New Rules also clarify the procedure and expected timing for obtaining a hearing date. According to the New Rules at Rule 33(1), appellants must obtain hearing dates without delay once an appeal is ready for hearing.
6. With respect to Case Management in the Court of Appeal, the New Rules now define the process for obtaining a referral to case management and set out the specific types of orders or directions a justice may make for the purposes of managing the conduct of the appeal. This is intended to assist parties with understanding exactly what options are available to help manage an appeal, if necessary.
7. As part of mitigating backlog and inefficient proceedings, Rules 49 and 50 of the New Rules now clarify how the Registrar will manage the inactive appeals list. For example, the Rules will address how appeals are added and removed from the inactive appeals list, as well as what documents appellants are permitted to file while appeals are on the inactive appeals list.
8. Relatedly, the New Rules clarify when an appeal or application proceeding is deemed to be abandoned. For example, if an appeal or application for leave to appeal is on the inactive appeals list for 180 days, it will be automatically dismissed as abandoned and cannot be reinstated unless a Justice orders otherwise.
9. The New Rules also formalize the requirements and procedures for bringing an “urgent application” on short notice in the Court, as well as set out the orders a Justice may make during an urgent application.
10. The New Rules have also simplified calculating costs for proceedings in the Court of Appeal. Of particular note, the three scales in the Old Rules for calculating ordinary costs have been reduced to two in the New Rules and the New Rules have an adjustment to the tariff for costs.
11. Finally, Schedule 3 of the New Rules contains a suite of new simplified court forms compared to those in the Old Rules. Apart from having a modern design, the new court forms are intended to be more intuitive and user-friendly. Compared to the old forms, the appellant now always comes first.
In conclusion, the New Rules are vastly overhauled and intended to be more simple and easy to follow than the Old Rules. The changes are likely to be well received by lawyers and self-represented litigants alike, and will promote more efficient and streamlined appeal proceedings. It is apparent that the New Rules will certainly reduce confusion, increase access to justice, and have a positive impact on court resources when compared to the Old Rules, and implementing them seems to be a substantial step toward modernizing the court system in British Columbia. To the extent it is necessary, such a change will hopefully prompt further modernization to the rules of procedure within other levels of court in our province.
Please find a copy of the Lieutenant Governor’s Order in Council #271 and New Rules here: https://www.bclaws.gov.bc.ca/civix/document/id/oic/oic_cur/0271_2022
For more information on these new changes, or any of your other appeal related legal questions, please contact Patrick Sullivan, John Fiddick, Joseph Romanoski or Dennis Whincup.
 Court of Appeal Act, , S.B.C. 2021, c. 6
 Court of Appeal Rules, B.C. Reg. 297/2001
 the New Rules, at Rule 12.
 the New Rules, at Rule 3.
 the New Rules, at Rules 47 and 48.
 the New Rule, at Rule 51.
 the New Rule, at Rule 57.