Court of Appeal Act-1996 British Columbia

COURT OF APPEAL ACT

Definitions

1  In this Act:

“appellant” means the party bringing an appeal;

“chief justice” means the Chief Justice of British Columbia;

“court” means the Court of Appeal;

“justice” means a Justice of Appeal;

“order” includes

(a)a judgment,

(b)a decree, and

(c)an opinion, advice, direction, determination, decision or declaration that is specifically authorized or required under an enactment to be given or made;

“registrar” means the officer of the court appointed under the Public Service Act as registrar, associate registrar or deputy registrar of the court;

“registry” means any office of the court;

“respondent” means a person, other than the appellant, who was a party to the proceedings in the court or tribunal from which appeal to the Court of Appeal is brought, other than a party whose interests are not affected by the relief requested by the appellant in the appeal;

“rules” means rules, made under this Act or the Court Rules Act, governing practice or procedure in the court.

Constitution of the Court of Appeal

2   (1)The Court of Appeal is continued as a superior court of record having civil and criminal jurisdiction and consisting of the Chief Justice of British Columbia and 14 other justices.

(2)There is established for each office of justice established under subsection (1) an additional office of supernumerary judge of the court.

(3)Each of the persons holding an office under this section is a Justice of Appeal.

Oath of office

3  Before entering on the duties of the office, the chief justice and every justice must swear an oath as follows:

I,……….., do swear that I will truly and faithfully, according to my skill and knowledge, execute the duties, powers and trusts placed in me as a justice of the Court of Appeal for British Columbia [or as the Chief Justice of British Columbia] and that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors.

Judicial rank

4   (1)The chief justice has rank and precedence over all other judges of the courts of British Columbia.

(2)The Chief Justice of the Supreme Court has rank and precedence over all other judges of the courts of British Columbia other than the Chief Justice of British Columbia.

(3)The other justices of appeal have rank and precedence, after the Chief Justice of British Columbia, the Chief Justice of the Supreme Court and the Associate Chief Justice of the Supreme Court, over all other judges of the courts of British Columbia and have rank and precedence among themselves according to the seniority of their appointment.

Powers after leaving office

4.1   (1)A justice who resigns his or her office, is appointed to another court or ceases to hold office under section 99 (2) of the Constitution Act, 1867, may, within 6 months after the resignation, appointment or ceasing to hold office, give judgment in a proceeding he or she heard while holding office, and the judgment is effective as though he or she still held office.

(2)A justice who is appointed to another court may continue with the hearing of any proceeding of which he or she was seized, and the jurisdiction to hear the proceeding and give judgment is effective as though he or she still held office.

Seal

5  The seal of the court must be of a design approved by the Lieutenant Governor in Council.

Appellate jurisdiction

6   (1)An appeal lies to the court

(a)from an order of the Supreme Court or an order of a judge of that court, and

(b)in any matter where jurisdiction is given to it under an enactment of British Columbia or Canada.

(2)If another enactment of British Columbia or Canada provides that there is no appeal, or a limited right of appeal, from an order referred to in subsection (1), that enactment prevails.

Leave to appeal

7   (1)In this section, “limited appeal order” means an order prescribed under the rules as a limited appeal order.

(2)Despite section 6 (1) of this Act, an appeal does not lie to the court from a limited appeal order without leave being granted by a justice.

(3)In an order granting leave to appeal under this or any other Act, a justice may limit the grounds of appeal.

Appeals from tribunals

8  If an appeal is from an order of a commission, board, panel or other tribunal, the secretary of the tribunal, or if there is no secretary, the chair of the tribunal, must exercise the powers and perform the duties in relation to the appeal that the Registrar of the Supreme Court would exercise and perform in relation to an appeal from the Supreme Court, and this Act and the rules apply as though the tribunal was a court.

Powers of Court of Appeal

9   (1)On an appeal, the court may

(a)make or give any order that could have been made or given by the court or tribunal appealed from,

(b)impose reasonable terms and conditions in an order, and

(c)make or give any additional order that it considers just.

(2)The court or a justice may draw inferences of fact.

(3)The court may exercise any original jurisdiction that may be necessary or incidental to the hearing and determination of an appeal.

(4)The court may exercise its powers

(a)even though only part of an order has been appealed from, and

(b)in favour of any person whether or not the person is a party to the appeal.

(5)If a power is given to a justice by this Act or the rules, the court may exercise the power.

(6)The court may discharge or vary any order made by a justice other than an order granting leave to appeal under section 7.

(7)The court and a justice have the same powers as the Supreme Court in relation to matters of contempt of court.

(8)For all purposes of and incidental to the hearing and determination of any matter and the amendment, execution and enforcement of any order and for the purpose of every other authority expressly or impliedly given to the Court of Appeal,

(a)the Court of Appeal has the power, authority and jurisdiction vested in the Supreme Court, and

(b)if the appeal is not from the Supreme Court, the Court of Appeal has the power, authority and jurisdiction vested in the court or tribunal from which the appeal was brought.

Powers of a justice

10   (1)A justice may extend or shorten the time within which an appeal to the court or application for leave to appeal may be brought.

(2)In an appeal or other matter before the court, a justice may do one or more of the following:

(a)make an order incidental to the appeal or matter not involving a decision of the appeal on the merits;

(b)make an interim order to prevent prejudice to any person;

(c)with the consent of all parties to the appeal, make any order;

(d)extend or shorten the time provided in this Act or the rules or in an order extending or shortening time, for the doing of an act or taking of a proceeding;

(e)dismiss an appeal as abandoned if the appellant has failed to comply with a provision of this Act or the rules or an order extending or shortening time;

(f)when making an order, impose terms and conditions and give any directions as the justice thinks just.

(3)A justice may review an order or direction of the registrar and, after reviewing it, may vary or cancel the order or direction.

(4)The power to extend time under this section may be exercised even though the application for the extension or the order granting the extension is made after the expiry of the period of time in respect of which the application to extend is made.

(5)A decision of a justice that has been reserved may be given by another justice.

(6)A decision of a justice may be given in a manner and at the time and place that the justice considers appropriate.

Chief justice

11   (1)The chief justice is the presiding justice and administrative head of the court.

(2)With the approval of the chief justice, a justice is authorized to attend in his or her capacity as a justice any meeting, conference or seminar that is held for a purpose relating to the administration of justice.

Exercise of powers of chief justice

12  In any of the following circumstances the powers of the chief justice must be exercised by the next senior justice holding office under section 2 (1) who is able to act in the place of the chief justice:

(a)if the chief justice is absent from British Columbia;

(b)if the chief justice is, for any reason, unable to act;

(c)if the chief justice requests it.

Quorum and divisions of the court

13   (1)Three justices constitute a quorum of the court.

(2)The court may sit in one or more divisions, each composed of not fewer than 3 justices.

(3)The court must not hear an appeal with an even number of justices sitting.

(4)The judgment of a majority of a division is the judgment of the court.

(5)Despite this section, if, after the commencement of a hearing by a division, a justice becomes unable to act, the remaining justices may continue to hear the appeal and, if justices constituting a majority of the division are in agreement on the judgment that should be given,

(a)they may give that judgment, and

(b)it is the judgment of the court.

(6)If, after a hearing continued under subsection (5), it appears that no majority judgment is possible, the remaining justices must order that a new hearing commence.

Bringing an appeal

14   (1)The time limit for bringing an appeal or an application for leave to appeal is

(a)30 days, commencing on the day after the order appealed from is pronounced, or

(b)if another enactment specifies a different period, that different period.

(2)An appeal or application for leave to appeal is brought

(a)by filing a notice of appeal or notice of an application for leave to appeal in a registry, and

(b)by serving a copy of the notice on every respondent, unless a justice orders that service on a respondent may be dispensed with.

(3)Within 10 days after serving all respondents required to be served, the appellant must file in a registry proof, in form satisfactory to the registrar, that a copy of the notice of appeal or application for leave to appeal has been served on every respondent required to be served.

(4)If leave to appeal is granted, the appeal is deemed, for all purposes, to have been brought.

Cross appeal

15   (1)By bringing a cross appeal, a respondent may request the court to vary any part of the order from which the appeal is brought.

(2)A cross appeal must be brought within 15 days after the respondent is served with the notice of appeal or order granting leave to appeal, whichever is later, and section 14 (2) and (3) applies as though the respondent bringing the cross appeal was an appellant.

(3)Subject to a rule under section 1 (5) (b) of the Court Rules Act, a cross appeal must for all other purposes of this Act be treated as an appeal.

Appeal book and transcript

16  In accordance with the rules, the appellant must file an appeal book and transcript in a registry.

Proceedings to be in Court of Appeal

17  Subject to any other enactment, if an appeal or application for leave to appeal has been brought, all proceedings relating to the appeal must be in the Court of Appeal.

Stay of proceeding

18   (1)After an appeal or application for leave to appeal is brought, a justice may, on terms the justice considers appropriate, order that all or part of the proceedings, including execution, in the cause or matter from which the appeal has been taken are stayed in whole or in part.

(2)After an appeal has been decided, a justice may, on terms the justice considers appropriate, order that all or part of the proceedings, including execution, in the cause or matter from which the appeal was taken are stayed and the justice may make any other order to preserve the rights of the parties pending further proceedings.

(3)Without limiting subsection (1) or (2), a justice may order one or more of the following:

(a)that documents be delivered;

(b)that possession of land or personal property be given;

(c)that property be placed in the custody of a person designated by the justice;

(d)that an instrument be executed;

(e)that perishable property be sold and the proceeds paid into the Court of Appeal or the court appealed from;

(f)that a direction be given to a sheriff or poundage be disallowed;

(g)that a person be paid money received by the sheriff under an execution;

(h)that security be given for any purpose in a form and manner directed by the justice.

(4)A justice may dismiss as abandoned the appeal of an appellant who fails to comply with an order made under subsection (1).

No appeal to be defeated by irregularities

19   (1)An appeal is not defeated by an irregularity or preliminary procedural objection.

(2)If an irregularity or procedural error has occurred, the court may order that the appeal be heard and may impose conditions, including the granting of an adjournment and the payment of costs, that the court considers appropriate.

Preliminary objection

20  A respondent must not be heard

(a)on an application to quash an appeal, or

(b)to raise a preliminary objection to the appeal being heard

unless the respondent has filed and served on the appellant a notice, specifying the ground of the application or objection, at least 7 clear days before the day that has been set for hearing the appeal.

Delivery of judgment

21   (1)All judgments of the court must be delivered in open court.

(2)If the court chooses to give written opinions respecting the outcome of the appeal, each justice who heard the appeal must give a signed opinion to the registrar, who must give the opinions to a justice.

(3)After receiving the opinions, the justice must pronounce judgment in accordance with the opinions of the majority and that judgment constitutes the delivery of the judgment of the court.

(4)If judgment has been reserved at the hearing, the registrar must give reasonable notice to all parties of the time and place where judgment will be delivered.

(5)If judgment on an appeal has been reserved and

(a)a justice who heard the appeal is incapacitated from giving the justice’s opinion on the appeal, or

(b)a majority of justices who heard the appeal are of the opinion that delivery of the judgment should no longer be delayed,

the remaining justices or majority, as applicable, must, if they are agreed on what the judgment should be, pronounce judgment and that judgment constitutes the judgment of the court.

(6)If a justice who heard an appeal ceases to hold office after the justice has handed his or her opinion to the registrar, the opinion has effect as though the justice had not ceased to hold office.

Proceedings on judgment

22   (1)After judgment of the court has been entered in a registry, a certified copy of it may be filed in the court or tribunal having original jurisdiction.

(2)After filing, proceedings may be taken on the judgment as though it were a judgment of the court or tribunal that had original jurisdiction.

Costs

23  Unless the court or a justice otherwise orders, the party who is successful on an appeal is entitled to costs of the appeal including the costs of all applications made in the appeal.

Security for costs

24   (1)A justice may order that an appellant pay to or deposit with the registrar security for costs in an amount and in a form determined by the justice.

(2)A justice may dismiss as abandoned the appeal of an appellant who fails to comply with an order made under subsection (1).

(3)This section does not apply to appeals by or on behalf of the government.

Inactive appeals or applications for leave to appeal

25   (1)If a certificate of readiness is not filed in accordance with the rules within one year after the filing of the applicable notice of appeal or notice of application for leave to appeal, or if a certificate of readiness has been filed within that period but a notice of hearing has not been filed within 2 months after the filing of the certificate of readiness, the registrar must

(a)place the appeal or application for leave to appeal on the inactive appeal list maintained in the registry, and

(b)mail notice of the action taken by the registrar under paragraph (a) to the following persons at their respective addresses for delivery:

(i)each counsel of record;

(ii)each unrepresented appellant or respondent who has provided the registry with an address for delivery.

(2)An appeal or application for leave to appeal referred to in subsection (1) must be removed from the inactive appeal list when a justice grants leave to the appellant or the applicant to proceed with the appeal or application for leave to appeal.

(3)A justice may, in an order under subsection (2), impose terms and conditions and give directions that the justice considers appropriate.

(4)The registrar must return the appeal or application for leave to appeal to the inactive appeal list and must mail notice of that action in accordance with subsection (1) (b) if

(a)a justice makes an order under subsection (2) that requires terms, conditions or directions to be complied with by a specified date and the appellant or applicant fails to comply with those terms, conditions or directions by that date, or

(b)in any other case, a certificate of readiness is not filed in accordance with the rules within 180 days after the making of an order under subsection (2) in respect of the appeal or application for leave to appeal.

(5)If an appeal or application for leave to appeal has remained on the inactive appeal list for 180 consecutive days, on the 181st day it stands dismissed as abandoned.

(6)An appeal or application for leave to appeal that stands dismissed as abandoned under subsection (5) must not be reinstated unless a justice orders otherwise.

Limiting argument

26   (1)Before the hearing of an appeal or application, the court or a justice may

(a)limit the time for the hearing of the appeal or for the hearing of argument by any party, or

(b)direct that argument be submitted in writing.

(2)During the hearing of an appeal or application, the court or a justice may

(a)limit the time for argument by any party,

(b)decline to hear further argument by a party either generally or on a particular issue, or

(c)direct that argument be submitted in writing.

New trial or hearing

27   (1) If on the hearing of an appeal it appears to the court that there should be a new trial or hearing, the court may set aside the verdict, finding or order and direct a new trial or hearing.

(2) If the court considers that the new trial or hearing should be limited, the court may give final judgment as to part or parts only of the matter in controversy or as to some or one only of the parties and direct a new trial or hearing as to the remaining part or party.

Non-compliance

28  If a party fails to comply with this Act or the rules, the court or a justice may

(a)dismiss the appeal as abandoned if the party is the appellant,

(b)refuse to hear the party, or

(c)impose terms including terms respecting the payment or disallowance of costs or disbursements.

Vexatious appeals

29  If, on the application of any person, a justice is satisfied that a person has habitually, persistently and without reasonable cause commenced vexatious proceedings in the court, the justice may, after hearing that person or giving that person an opportunity to be heard, order that proceedings must not be brought or commenced in the court without leave of a justice.

If no provision in this Act or the rules

30  If no special provision is contained in this Act or the rules, the procedure and practice of the court is to be regulated by analogy to this Act and the rules or, if there is no appropriate analogy, by analogy to the Supreme Court Act and the Supreme Court Rules.

Registries

31   (1)After consulting with the chief justice, the Attorney General may establish registries of the court at any place in British Columbia.

(2)If a registry has been established, the court may sit and act at that place to transact any of its civil or criminal business or to discharge any of its duties.

Administrators of court services and registrars

32   (1)The following persons may be appointed under the Public Service Act:

(a)a chief administrator of court services for the Court of Appeal;

(b)a deputy chief administrator of court services for the Court of Appeal;

(c)an administrator of court services for each registry of the Court of Appeal;

(d)other persons necessary to carry out the purposes of this Act and the duties assigned to a registry by the rules.

(2)Subject to the direction of the chief justice in matters of judicial administration and to the direction of the Attorney General in other matters, the chief administrator of court services for the Court of Appeal must direct and supervise facilities, registries and administrative services for the Court of Appeal.

(3)A registrar and an associate registrar for the court and one or more deputy registrars may be appointed under the Public Service Act.

(4)A registrar, associate registrar or deputy registrar appointed under subsection (3) is an officer of the court.