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1.4 How do I respond to an appeal?

Two types of appeals

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

  1. the appellant has no right of appeal at all;
  2. the appellant must ask the court for permission to appeal the case (called “leave to appeal”);  or
  3. the appellant has an automatic right of appeal.  

If the appeal is one where leave to appeal is required, the appellant will serve you with a notice of application for leave to appeal, which involves an initial application before the Court for permission to appeal the case.  

If the appeal is one where leave to appeal is not required (i.e. there is an automatic right of appeal), then no such application is required. The question of what right the appellant has to appeal is discussed in Section 1.3 of the Guidebook for Appellants.

You must respond to an appeal

After the appellant has served you with the notice of appeal (or application for leave to appeal), you must file a notice of appearance within 10 days if you intend to participate in the appeal or application. If you do not file a notice of appearance, you are presumed to take no position on the appeal. In other words, the court will assume you don’t care what happens in the appeal and the appellant does not have to serve you with any further documents or notify you of any further court hearings. Judgment may be taken against you without you having had an opportunity to present your case to the court. (Rule 14.)

The appearance contains your address of service, which the appellant will use in the future to deliver documents to you. It may be a house address, a fax number, or email address. (See Rule 39.)

Notice of appearance

Follow these steps if you intend to dispute the appellant’s appeal or application for leave to appeal:

  1. Prepare and file a notice of appearance (Form  2).
  2. You must file your notice of appearance at the Court of Appeal registry within 10 days of receiving the notice of appeal or application for leave to appeal.  If that date falls on a weekend, you must file your document on the next business day.
  3. Serve a filed copy of the notice of appearance on the appellant(s) within the same 10-day period.

The appellant must serve you with two documents within 60 days of filing the notice of appeal or being granted the right to appeal (if the appellant had to apply for leave to appeal):

  1. The appeal record, which contains documents from your previous hearing (see Rule 19).
  2. The transcript from the previous proceeding.

Refer to the checklist attached to this guidebook. It sets out steps and timelines.

If the appellant missed the deadline for filing a notice of appeal or notice of application for leave to appeal

The appellant may apply for an extension of time if he or she missed the 30-day deadline for filing a notice of appeal. The appellant will file and serve you with the application documents at least 5 business days before a hearing by a single judge in chambers. If you intend to oppose the appellant’s application, you must respond by filing your own motion book at least 2 business days before the application.

You will have an opportunity to appear at the hearing and argue that the appellant should not be given an extension of time.

In deciding whether to give the appellant more time, the court will consider certain factors:

  1. Was there a bona fide (genuine) intention to appeal? 
  2. When were the respondents informed of the appellant’s intention to appeal? 
  3. Would the respondents be overly prejudiced by an extension of time? 
  4. Does the appeal have merit? 
  5. Is it in the interests of justice that an extension be granted?”

You can use these factors to organize the facts for your affidavit and your argument about why the court should not give the appellant more time.