1.4 How do I respond to an appeal?
Two types of appeals
In British Columbia, a right of appeal is not guaranteed in every case. Three different things can happen:
- The appellant has no right of appeal at all.
- The appellant must ask the court for permission to appeal the case (called “leave to appeal”).
- The appellant has an automatic right of appeal.
If leave to appeal is required, the appellant will serve you with a notice of application, which involves an initial application before the Court for permission to appeal the case.
If leave to appeal is not required (i.e. there is an automatic right of appeal), then application is required. The question of what right the appellant has to appeal is discussed in Section 1.2 Do you have the right to appeal? 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), if you intend to participate in the appeal or application, you must file a notice of appearance (Form 2) not more than 10 days after the appellant served you. If you do not file a notice of appearance within that time, you are presumed, until you do file a notice of appearance, to take no position on the appeal. In other words, the court will assume you do not 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 (see Rule 7).
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 in British Columbia, a fax number, or email address (see Rule 80).
Notice of appearance
Follow these steps if you intend to dispute the appellant’s appeal or application for leave to appeal:
- Prepare and file a notice of appearance (Form 2).
- You must file your notice of appearance with the Court of Appeal registry not more than 10 days after receiving the notice of appeal. If that date falls on a weekend, you must file your document on the next business day.
- 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):
- The appeal record, which contains documents from your previous hearing (see Rule 23).
- Book of transcripts from the previous proceeding (see Rule 24).
If the appellant missed the deadline for filing a notice of appeal
The appellant may apply for an extension of time if they 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, take the following steps:
- Prepare your own application response documents at least 2 business days before the hearing of the application. Follow the paper or e-filing completion instructions for preparing your response book.
- Serve your response book on the appellant(s).
You will have an opportunity to appear at the hearing and argue that the court should not give the appellant an extension of time.
In deciding whether to give the appellant more time, the court will consider certain factors:
- Did the appellant have a bona fide (genuine) intention to appeal?
- When were the respondents informed of the appellant’s intention to appeal?
- Would an extension of time prejudice the respondents, or would an extension disadvantage the respondents very much?
- Does the appeal have merit (is there some chance the appeal will succeed)?
- Considering all the above, 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 to file their appeal.