1st Session, 42nd Parliament (2020–2021)
THIRD READING
Certified correct as passed Third Reading on the 17th day of March, 2021
Kate Ryan-Lloyd, Clerk of the Legislative Assembly
HONOURABLE D. EBY
ATTORNEY GENERAL AND MINISTER
RESPONSIBLE FOR HOUSING
BILL 11 – 2021
COURT OF APPEAL ACT
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
Interpretation
1 (1) In this Act:
"appellant" means a person who was a party to the proceedings in the court appealed from and is
(a) bringing an appeal, or
(b) applying for leave to appeal;
"chief justice" means the Chief Justice of British Columbia;
"court" means the Court of Appeal for British Columbia;
"court appealed from" means the court, or tribunal, from which an appeal is brought;
"justice" means a Justice of Appeal of the court;
"leave to appeal" means permission from the court or a justice to appeal an order;
"limited appeal order" means an order, prescribed in the rules as a limited appeal order, that requires leave to 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;
"party", in relation to an appeal, means
(a) the appellant, or
(b) a respondent who, in accordance with the rules, is a participant in the appeal;
"registrar" means a person appointed under section 10 (1) as
(a) the registrar,
(b) the associate registrar, or
(c) a deputy registrar;
"respondent" means either of the following:
(a) a person, other than the appellant,
(i) who was a party to the proceedings in the court appealed from, and
(ii) whose interests are affected by the relief requested by the appellant in an appeal;
(b) a person who is added, under the rules, as a respondent to an appeal;
"rules" means rules made under the Court Rules Act governing practice or procedure of the court;
"tribunal" includes a commission, board or panel.
(2) Section 5 of the Offence Act does not apply to this Act.
Continuation of court
2 (1) The court is continued as a superior court of record having civil and criminal jurisdiction.
(2) The seal of the court must be of a design approved by the Lieutenant Governor in Council.
Constitution of court
3 (1) The court consists of
(a) the chief justice, and
(b) 14 other justices.
(2) An additional office of supernumerary justice of the court is established for each office of justice established under subsection (1) (a) or (b).
(3) Each of the persons holding an office under this section is a justice.
Quorum and divisions of court
4 (1) The court may sit in one or more divisions, each composed of not fewer than 3 justices.
(2) Three justices constitute a quorum of the court.
(3) The court must not hear an appeal with an even number of justices sitting.
(4) The judgment of the court is the judgment given by the majority of a division.
(5) Despite subsections (1) to (3), if a justice in a division becomes unable to act after the division commences the hearing of an appeal, the remaining justices in the division may continue to hear the appeal.
(6) On the conclusion of the hearing of an appeal under subsection (5),
(a) the remaining justices may give a judgment on the appeal if justices constituting a majority of the division, as it was composed when the hearing commenced, agree on what the judgment should be, or
(b) if it appears that no majority judgment is possible, the remaining justices must order a new hearing.
Location of court
5 The court may sit or conduct its business at any place directed by the chief justice.
Chief justice
6 (1) The chief justice is the presiding justice and administrative head of the court.
(2) The chief justice has all the powers, rights and responsibilities of a justice.
(3) The powers of the chief justice must be exercised by the next senior justice holding office under section 3 (1) (b) who is able to act in place of the chief justice if the chief justice
(a) is absent from British Columbia,
(b) is unable to act for any reason, or
(c) requests it.
(4) With the approval of the chief justice, a justice may attend in the capacity of a justice at any meeting, conference or seminar outside of court that is held for a purpose relating to the administration of justice.
Judicial rank
7 (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.
(3) The Associate Chief Justice of the Supreme Court has rank and precedence over all other judges of the courts of British Columbia, other than
(a) the chief justice, and
(b) the Chief Justice of the Supreme Court.
(4) The justices holding office under section 3 (1) (b) and (2) have rank and precedence
(a) over all other judges of the courts of British Columbia other than
(i) the chief justice,
(ii) the Chief Justice of the Supreme Court, and
(iii) the Associate Chief Justice of the Supreme Court, and
(b) among themselves according to the seniority of their appointment to the court.
Oath of office
8 Each justice must take the following oath before entering on the duties of the office:
I, ......................................., do swear [or solemnly affirm] 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 the Crown.
Continuing jurisdiction after leaving office
9 (1) Subsection (2) applies to a justice who ceases to hold office as a result of
(a) resigning,
(b) being appointed to another court, or
(c) section 99 (2) [termination at age 75] of the Constitution Act, 1867.
(2) Within 6 months of ceasing to hold office, a justice referred to in subsection (1) may give judgment in respect of a matter that the justice heard while holding office, and the judgment is effective as though the justice still held office.
(3) A justice referred to in subsection (1) (b) may continue the hearing of any matter of which the justice was seized, and the jurisdiction to hear the matter and give judgment is effective as though the justice still held office.
Division 3 – Court Administration
Registrar
10 (1) The following persons may be appointed under the Public Service Act:
(a) a registrar;
(b) an associate registrar;
(c) one or more deputy registrars.
(2) If a person appointed under subsection (1) is temporarily absent because of illness or another reason, the chief justice may appoint another person to act in that person's place during the period of absence.
(3) Each person appointed under this section is an officer of the court.
Administrators of court services
11 (1) The following persons may be appointed under the Public Service Act:
(a) a chief administrator of court services for the court;
(b) a deputy chief administrator of court services for the court;
(c) an administrator of court services for each registry of the court;
(d) other persons necessary to carry out the purposes of this Act and the rules.
(2) The chief administrator of court services must direct and supervise facilities, registries and administrative services for the court, subject to the direction of
(a) the chief justice for matters of judicial administration, and
(b) the Attorney General for other matters.
Registries
12 After consulting with the chief justice, the Attorney General may establish registries of the court at any place in British Columbia.
Appellate jurisdiction
13 (1) An appeal may be brought to the court
(a) from an order of
(i) the Supreme Court, or
(ii) a judge of the Supreme Court, or
(b) in any matter for which jurisdiction is given to the court under an enactment of British Columbia or Canada.
(2) Despite subsection (1), an appeal may not be brought to the court
(a) from a limited appeal order, unless leave to appeal is granted by a justice, or
(b) from an order of a master of the Supreme Court.
(3) If another enactment of British Columbia or Canada provides that there is no appeal or a limited right of appeal from an order or matter referred to in subsection (1), that enactment prevails.
(4) If leave to appeal is granted for a limited appeal order under subsection (2) (a), the appeal is deemed, for all purposes, to have been brought on the date that leave is granted.
Cross appeal
14 (1) A respondent may bring a cross appeal to request that the court vary any part of an order being appealed.
(2) Subject to the rules, a cross appeal must be treated as an appeal for all purposes of this Act.
Time limit for commencing appeal or application for leave to appeal
15 A person must commence an appeal or application for leave to appeal within the following time limit:
(a) unless paragraph (b) applies, within the time limit specified in the rules;
(b) if another enactment specifies a time limit in relation to the appeal, within the time limit specified in that other enactment.
Appeals from tribunals
16 If an appeal is from an order of a tribunal,
(a) this Act and the rules apply as though the tribunal were the Supreme Court, and
(b) the tribunal must ensure that an official of the tribunal exercises the powers and performs 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.
Division 1 – General Conduct of Appeals
Proceedings related to appeal must be in court
17 Subject to any other enactment, if an appeal or application for leave to appeal is brought, all proceedings in respect of matters relating to the appeal must be in the court.
Appeals must be conducted in accordance with Act and rules
18 (1) An appeal or application for leave to appeal must be brought and conducted in accordance with this Act and the rules.
(2) If a matter of practice or procedure is not addressed in this Act or the rules, the practice and procedure of the court is to be regulated by analogy
(a) to this Act and the rules, or
(b) if there is no appropriate analogy to this Act or the rules, to the Supreme Court Act and the Rules of Court governing civil or family practice or procedure in the Supreme Court.
No appeal to be defeated by irregularities
19 (1) An appeal is not defeated by an irregularity or procedural error in the conduct of the appeal.
(2) If an irregularity or procedural error has occurred in the conduct of an appeal, a justice may do one or more of the following:
(a) validate an act, matter or thing rendered or alleged to have been rendered invalid by or as a result of the irregularity or procedural error;
(b) impose terms and conditions, including the granting of an adjournment or the payment of costs;
(c) make any other order the justice considers appropriate to address the irregularity or procedural error.
Division 2 – Special Procedural Matters
Preliminary objections
20 (1) The court may, on application, make any order the court considers appropriate to give effect to a preliminary objection in relation to an appeal.
(2) A justice may, on application,
(a) quash an appeal on the basis that the court lacks jurisdiction, or
(b) make any order the justice considers appropriate to give effect to a preliminary objection in relation to an appeal, other than an order dismissing the appeal.
Referral to court for summary determination
21 (1) A justice or the registrar may refer an appeal to the court for summary determination if the justice or registrar considers that the appeal
(a) is frivolous or vexatious, or
(b) can otherwise be dismissed on a summary basis.
(2) On a referral under subsection (1), the court may dismiss all or part of the appeal if the court considers that the appeal meets the criteria set out in subsection (1) (a) or (b).
(3) Before dismissing all or part of an appeal under subsection (2), the court must give the appellant an opportunity to make written submissions or otherwise be heard.
Vexatious proceedings
22 (1) If the court or a justice is satisfied that a person has habitually, persistently and without reasonable cause commenced or continued vexatious proceedings in any of the courts of British Columbia, the court or justice may order that the person must not bring or continue an appeal or application for leave to appeal in the court without leave of the court or a justice.
(2) The court or a justice may make an order under subsection (1)
(a) on application by any person or on the court or justice's own initiative, and
(b) only if the person referred to in subsection (1) has been given an opportunity to make written submissions or otherwise be heard.
(3) In making an order under subsection (1), the court may dismiss an appeal or application for leave to appeal previously brought to the court by the person.
(4) If a justice makes an order under subsection (1),
(a) the justice may refer the matter to the court, and
(b) the court may, without receiving further written submissions or holding a further hearing, dismiss an appeal or application for leave to appeal previously brought to the court by the person.
(5) In dismissing an appeal or application for leave to appeal under subsection (3) or (4), the court may impose terms and conditions, including the payment of costs.
Appeals or applications for leave to appeal dismissed as abandoned
23 (1) An appeal or application for leave to appeal is dismissed as abandoned if it remains inactive under the circumstances and to the extent set out in the rules.
(2) An appeal or application for leave to appeal that has been dismissed as abandoned under subsection (1) may be reinstated in accordance with the rules.
General powers of court
24 (1) On an appeal, the court may
(a) make any order that the court appealed from could have made,
(b) impose reasonable terms and conditions in an order, and
(c) make any additional order that it considers just.
(2) The court may
(a) draw inferences of fact,
(b) exercise the powers of the Supreme Court in relation to matters of contempt of court, and
(c) exercise any original jurisdiction that may be necessary or incidental to the hearing and determination of an appeal.
(3) The court may exercise its powers
(a) even though only part of an order is being appealed, and
(b) in favour of any person, whether or not the person is a party to the appeal.
Court has power of court appealed from
25 The court has the power, authority and jurisdiction vested in the court appealed from
(a) for all purposes of and incidental to
(i) the hearing and determination of any matter, and
(ii) the amendment, execution and enforcement of any order, and
(b) for the purpose of every other authority expressly or impliedly given to the court.
Limiting hearings and requiring preparation of written arguments
26 (1) Before or during the hearing of a matter that is to be decided by the court, the court may do one or more of the following, either generally or in relation to a particular issue:
(a) order that the hearing be conducted
(i) in writing, or
(ii) by telephone, video conference or other means of telecommunication;
(b) order that the matter be decided without a hearing;
(c) limit the time for the hearing;
(d) limit the time for the hearing of an argument by any person.
(2) Before, during or after the hearing of a matter that is to be decided by the court, the court may order a party to prepare written arguments on any issue, whether or not the issue has been previously addressed by the party.
Ordering new trial or hearing
27 (1) On the hearing of an appeal, if the court determines that a matter under appeal should have a new trial or hearing, the court may
(a) set aside a verdict, finding or order, and
(b) direct a new trial or hearing.
(2) If the court considers that a new trial or hearing should be limited, the court may
(a) give final judgment as to only part of the matter under appeal or as to only some of the parties, and
(b) direct a new trial or hearing for the remaining part or parties.
Power of a justice exercised by court
28 The court may exercise a power given to a justice by this Act or the rules.
Varying orders of a justice
29 (1) On application, the court may vary or cancel any order made by a justice.
(2) Subsection (1) does not apply to
(a) an order under section 31 granting leave to appeal, or
(b) an order prescribed by the rules as an order that may not be varied.
Division 2 – Powers of a Justice
General powers of a justice
30 In an appeal or other matter before the court, a justice may do one or more of the following:
(a) make orders incidental to the appeal or matter not involving a decision of the appeal on the merits;
(b) make orders or give directions for the purposes of managing the conduct of the appeal or other matter;
(c) make interim orders to prevent prejudice to any person;
(d) exercise the powers referred to in the following sections for the purposes of a matter that is to be decided by a justice:
(i) section 24 (2) (a) and (b) [general powers of court];
(ii) section 26 [limiting hearings and requiring preparation of written arguments];
(e) exercise the powers given to the registrar by this Act or the rules;
(f) grant leave to intervene;
(g) refer any application to the court;
(h) make any order with the consent of all parties to the appeal;
(i) in making any order, impose terms and conditions and give directions that the justice considers just.
Leave to appeal
31 (1) A justice may grant or refuse leave to appeal.
(2) In granting leave to appeal under this Act or any other enactment, a justice may limit the grounds of appeal.
Dispensing with rules and varying time limits
32 (1) A justice may dispense with a requirement of the rules.
(2) A justice may extend or shorten a time limit, provided in this Act or the rules, for doing an act, including the time limit for commencing an appeal or application for leave to appeal.
(3) Subsection (2) applies to an extension of a time limit even if the time limit for doing an act expires before
(a) a person applies for the extension, or
(b) the justice orders the extension.
Stays of proceedings
33 (1) After an appeal or application for leave to appeal is brought, a justice may, on terms and conditions the justice considers appropriate, order a stay of all or part of proceedings, including execution, in the cause or matter from which the appeal is brought.
(2) After an appeal has been decided, a justice may, on terms and conditions the justice considers appropriate, do one or both of the following:
(a) make an order under subsection (1);
(b) 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 specified by the justice;
(d) that an instrument be executed;
(e) that perishable property be sold and the proceeds paid into the court 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 a sheriff under an execution;
(h) that security be given for any purpose in a form and manner directed by the justice.
Payment of security
34 (1) A justice may order an appellant to pay into court security for one or more of the following:
(a) costs of the appeal;
(b) costs of proceedings in the court appealed from, in relation to the order being appealed;
(c) an amount under the order being appealed.
(2) A payment under subsection (1) must be in the amount and form determined by the justice.
(3) This section does not apply to an appeal brought by or on behalf of the government.
Varying orders of a justice or registrar
35 (1) A justice may vary the following orders of a justice:
(a) an order made without notice;
(b) an order made under section 32 (2) [varying time limits], other than an order extending or shortening the time limit for commencing an appeal or application for leave to appeal;
(c) if there has been a material change in circumstances, an order made under
(i) section 33 [stays of proceedings] to stay execution, or
(ii) section 34 [payment of security].
(2) A justice may vary or cancel an order or direction of the registrar.
Failure to comply
36 A justice may do one or more of the following if a party fails to comply with this Act or the rules or an order or direction of the court, a justice or the registrar:
(a) refuse to hear the party;
(b) impose terms and conditions, including the payment or disallowance of costs;
(c) if the party is an appellant, dismiss the appeal as abandoned.
Division 3 – Powers of Registrar
General powers of registrar
37 (1) The registrar may exercise the powers conferred on the registrar
(a) by the rules, or
(b) by the chief justice, under this section.
(2) The chief justice may
(a) authorize the registrar to exercise powers in relation to the management of the conduct of an appeal or other matter before the court, and
(b) impose limits or conditions on the exercise of a power authorized under paragraph (a).
(3) If there is an inconsistency between an authorization under subsection (2) and the rules, the rules prevail to the extent of the inconsistency.
(4) An authorization under subsection (2) that authorizes the registrar to exercise powers in addition to those conferred by the rules is not, for that reason alone, inconsistent with the rules.
Directives in relation to filing
38 (1) Subject to the rules, the registrar may issue directives respecting the filing of documents in the court's registries, including directives that specify
(a) the form and manner in which documents must be filed,
(b) the number of copies of a document that must be filed, and
(c) instructions for the completion of documents.
(2) The registrar may refuse to accept a document for filing if it is filed contrary to a directive issued under subsection (1).
(3) The registrar must make accessible to the public any directive issued under subsection (1).
Pronouncement of judgments and orders
39 (1) The chief justice may establish practices and procedures for the court respecting the pronouncement of judgments.
(2) An order takes effect on the date that the order is pronounced, unless otherwise specified in the order.
Delivery of judgment
40 (1) A judgment of the court must be pronounced
(a) by a justice in open court, or
(b) in a manner established by the chief justice under section 39 (1).
(2) If a division's judgment on appeal has been reserved and any of the following apply, the division must give a judgment:
(a) all the justices who heard the appeal have reached an opinion on the appeal;
(b) the justices constituting a majority of the division, as it was composed when the hearing commenced,
(i) agree that delivery of the judgment should no longer be delayed, and
(ii) agree on what the judgment should be;
(c) a justice in the division is incapacitated from giving an opinion on the appeal, and the remaining justices
(i) constitute a majority of the division, as it was composed when the hearing commenced, and
(ii) agree on what the judgment should be.
(3) The registrar must give reasonable notice to all parties of the time and place at which a judgment that has been reserved will be pronounced.
(4) If the court chooses to give written reasons for judgment respecting the outcome of an appeal, the written reasons must be provided to the registrar by
(a) each justice who heard the appeal, or
(b) if subsection (2) (c) applies, the remaining justices referred to in that subsection.
(5) The written reasons for judgment of a justice are effective even if the justice ceases to hold office after the written reasons are provided to the registrar under subsection (4).
Proceedings on a judgment
41 (1) After a judgment of the court has been entered in a registry of the court, a certified copy of the judgment may be filed in the court appealed from.
(2) A judgment filed under this section has the same force and effect, and all proceedings may be taken on it, as though it were an order of the court appealed from.
Decision of a justice
42 (1) Unless the chief justice directs otherwise, a decision of a justice may be pronounced in the manner, and at the time and place, determined by the justice.
(2) A decision of a justice that has been reserved may be pronounced by another justice.
Amendments to orders
43 (1) A division of the court may, on application or on the division's own initiative, amend an order made by the division to provide for any matter that should have been but was not adjudicated by the division.
(2) A justice may, on application or on the justice's own initiative, amend an order made by the justice to provide for any matter that should have been but was not adjudicated by the justice.
(3) A justice or the registrar may, on application or on the justice's or registrar's own initiative, correct an error in an order that arose from
(a) a clerical or typographical error, or
(b) an accidental or inadvertent error, omission or other similar mistake.
Costs
44 (1) Unless the court or a justice orders otherwise, a party who is successful on an appeal is entitled to costs of the appeal, including the costs of all applications made in the appeal.
(2) Costs must be assessed
(a) in accordance with the rules, or
(b) in the manner directed by the court or a justice.
Powers of court or a justice in relation to costs
45 (1) Subject to the rules, the court or a justice may make any order or give any direction that the court or justice considers appropriate in relation to costs.
(2) An order or direction under subsection (1) may be limited to any part of an appeal or application for leave to appeal.
Powers of registrar in relation to costs
46 (1) The registrar may
(a) assess costs, and
(b) in accordance with the rules, if any, issue a certificate specifying the amount of costs payable by a party.
(2) The registrar must issue a certificate under subsection (1) (b) if required to do so by the rules.
(3) A certificate of costs issued by the registrar under subsection (1) (b) may be filed in the Supreme Court, and proceedings may be taken on the filed certificate as though it were a judgment of the Supreme Court for the recovery of debt.
Part 8 – Transitional Provisions, Repeal and Consequential Amendments
Transition – definitions
47 In this section and sections 48 to 51:
"effective date" means the date on which this section comes into force;
"former Act" means the Court of Appeal Act, R.S.B.C. 1996, c. 77;
"former rules" means the Court of Appeal Rules, B.C. Reg. 297/2001.
Transition – continuation of previous orders, directions and judgments
48 An order, direction or judgment of the court, a justice or the registrar that was made or given under the former Act or former rules and was in force immediately before the effective date
(a) is deemed to have been made or given under this Act and the rules made in relation to this Act, and
(b) has the same effect under this Act and the rules made in relation to this Act as it had under the former Act and former rules.
Transition – continuation of inactive appeal list
49 (1) Subject to subsection (2) and despite the repeal of the former Act, section 25 of the former Act, as it read immediately before the effective date, continues to apply to an appeal or application for leave to appeal that was on the inactive appeal list under that section immediately before the effective date.
(2) The Lieutenant Governor in Council may, under section 1 of the Court Rules Act, make rules that the Lieutenant Governor in Council considers necessary or advisable for the orderly transition of the inactive appeal list under section 25 of the former Act to this Act and the rules made in relation to this Act.
Transition – orders and directions
50 A justice may make any order or give any direction the justice considers appropriate to address any matter that arises as a result of the transition of an appeal or application for leave to appeal from the former Act and former rules to this Act and the rules made in relation to this Act.
Transition – regulations
51 (1) The Lieutenant Governor in Council may, under section 1 of the Court Rules Act, make rules that the Lieutenant Governor in Council considers necessary or advisable for the orderly transition of an appeal or application for leave to appeal from the former Act and former rules to this Act and the rules made in relation to this Act.
(2) The Lieutenant Governor in Council may provide, in a rule made in relation to this Act, that the rule applies to an appeal or application for leave to appeal even though the rule affects a right of a party under the former rules that is acquired, accrued or accruing before the date on which the rule is made.
(3) The authority to make a rule under this section ends one year after the effective date.
Repeal
Repeal
52 The Court of Appeal Act, R.S.B.C. 1996, c. 77, is repealed.
Consequential Amendments
Class Proceedings Act
53 Section 36 (2) of the Class Proceedings Act, R.S.B.C. 1996, c. 50, is amended by striking out "section 14 (1) (a) of the Court of Appeal Act" and substituting "section 15 (a) of the Court of Appeal Act".
Health Care Costs Recovery Act
54 Section 19 of the Health Care Costs Recovery Act, S.B.C. 2008, c. 27, is amended by striking out "section 14 of the Court of Appeal Act" and substituting "section 15 of the Court of Appeal Act".
Interjurisdictional Support Orders Act
55 Section 36 (5) of the Interjurisdictional Support Orders Act, S.B.C. 2002, c. 29, is amended by striking out "Despite section 14 of the Court of Appeal Act" and substituting "Despite section 15 of the Court of Appeal Act".
Supreme Court Act
56 Section 4 (1) of the Supreme Court Act, R.S.B.C. 1996, c. 443, is amended by striking out "section 4 of the Court of Appeal Act" and substituting "section 7 of the Court of Appeal Act".
Commencement
57 This Act comes into force by regulation of the Lieutenant Governor in Council.