2.1 How to start an appeal if leave to appeal is required

In British Columbia, you are not always guaranteed a right of appeal from every case - three things can happen: 

  1. either your case is of a type where you have no right of appeal at all,
  2. your case is one where you have to ask the court for permission to appeal the case (called “leave to appeal”);  or
  3. your case is one where you have an automatic right of appeal.  

You need to think about these questions first to know which documents to prepare.   Leave to appeal and automatic rights of appeal are discussed in Section 1.2

How do you  prepare if you need leave to appeal?

Do you need leave to appeal? 

If you do not have an automatic right to appeal, you must make an application to the court to obtain leave (permission) to appeal your case. A discussion on whether you need leave to appeal or not can be found in Section 1.2.

How to apply for leave to appeal

You can find details about making an application for leave to appeal in Part 2 of the Court of Appeal Rules. Follow these steps:

  1. Prepare a notice of application for leave to appeal (Form 1).
  2. The time limit for filing and serving a notice of application for leave to appeal is 30 days, commencing on the day after the order appealed from is pronounced (i.e., from the date that the decision-maker stated who won the case). If that date falls on a weekend, you must file your document on the next business day.
  3. File at least 3 copies of the notice of application for leave to appeal –one for use by the court, one for your own use, plus as many other copies that you need to serve on the respondent(s).
  4. Pay your court filing fee when you file your notice of application for leave to appeal.
  5. Serve a copy of the notice of application on each respondent within the same 30-day period.
  6. Within 10 days from service on the respondent, file an affidavit of service in the Court of Appeal registry as proof that you served the application for leave to appeal on every respondent. Alternatively, you can file an acknowledgement of receipt of the document by the other party.

If the respondent intends to argue against your application, he or she must file and serve a notice of appearance on you within 10 days after being served. If the respondent does not file an appearance, he or she is presumed to take no position on the application, and you do not have to serve any further documents related to the application on the respondent. (See Rules 5 and 6.)

The respondent has 10 days after service to file a notice of appearance

  1. File and serve a notice of motion (Form 3) and motion book (Form 4) within 30 days of filing your notice of application for leave to appeal. It must be served on each respondent at least 10 business days before the date of the application.

At least 5 business days before the hearing, the respondent must prepare, file and serve you with a reply book (Rule 8).

  1. Your application will be set down for a hearing in chambers and is usually heard by one judge, sitting alone. You will have to state your reasons why you believe you should be given permission to appeal your case.

The factors considered by the Chambers judge are outlined in Form 4. They are:

  1. The importance of the proposed appeal generally and to the parties;
  2. The utility of the proposed appeal in the circumstances of the parties;
  3. The prospects of success of the appeal; and
  4. If applicable, any statutory provision granting a right to appeal with leave.

You may be given permission to appeal your case when you are appealing a significant point of law and your appeal has merit. You will not be given permission to appeal if your appeal is frivolous or is brought to delay enforcement of the trial decision.

You may amend your notice of application for leave to appeal before filing your motion book (or later if you have leave (permission) from a court of appeal judge).