2.2 What to do if leave to appeal is required
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Do you need leave to appeal?
In British Columbia, you are not guaranteed a right of appeal from every case. Three things can happen:
- Your case is one where you have no right of appeal.
- Your case is one where you must ask the court for permission to appeal the case (this is called “leave to appeal”).
- Your case is one where you have an automatic right of appeal.
Leave to appeal and automatic rights of appeal are discussed in Section 1.2 – Do you have the right to appeal?
If you do not have an automatic right to appeal (usually because the type of order you want to appeal is listed in Rule 11 and is called a “limited appeal order”), you must make an application to the court to obtain leave (permission) to appeal your case.
If you are unsure if you need leave to appeal, you must make an application for leave to appeal. A single judge in chambers will hear your application and let you know if it turns out that you do not require leave to appeal.
The time limit to apply for leave to appeal is not more than 30 days after the date you filed your notice of appeal.
How to apply for leave to appeal
The process for making an application for leave to appeal is set out in Part 3, Division 3 of the Rules. Follow these steps:
- File a notice of appeal as discussed in section 2.1 and indicate on the notice of appeal that leave to appeal is required. Remember that the notice of appeal must be filed not more than 30 days after the date the order you are appealing was made.
- Obtain a hearing date from the registry for your application for leave to appeal. It is a good idea to communicate with the other parties first to find a date that works for everyone.
- Prepare a notice of application (Form 4) and indicate on the application that you are seeking leave to appeal.
- Prepare a leave to appeal application book by following the paper or e-filing completion instructions.
- File the notice of application and application book not more than 30 days after the date that you filed the notice of appeal.
- Serve one copy of the filed notice of application on each respondent within the same 30-day period for filing the notice application or at least 10 business days before your hearing date, whichever is earlier.
If the respondent(s) intend to argue against your application, they must file and serve you with a response book at least 5 business days before your hearing date (see Rule 14).
Your application will be scheduled for a hearing in chambers with one judge. You will need to state the reasons you believe you should be given permission to appeal your case. The factors the chambers judge will consider are described in the paper or e-filing completion instruction for leave to appeal application books. They include:
- The importance of the proposed appeal to the practice (e.g. would the appeal help settle an unsettled area of the law?).
- The importance of the proposed appeal to the action (including the significance of the appeal to the parties).
- The merits of the proposed appeal.
- Whether the proposed appeal would unduly slow or prevent progress in the underlying action.
You may be given permission to appeal your case when you are appealing an important point of law and your appeal has merit (a chance of success). You will not be given permission to appeal if your appeal is frivolous (not serious) or is brought to delay enforcement of the trial decision.
Note that you may only amend (change) your notice of application for leave to appeal if you have permission from a court of appeal judge.
You may ask the judge who hears your application for permission to use your application book as the factum and appeal book in your appeal. These are documents that you are normally required to file in an appeal. They are discussed in sections 2.6 Put together your appeal book and 2.7 Write your argument. Getting permission to use your application book as the factum and appeal book will reduce the number of documents that you are required to file later.