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B.C. Reg. 120/2022
O.C. 271/2022
Deposited May 24, 2022
effective July 18, 2022
This consolidation is current to August 9, 2022.
Link to consolidated regulation (PDF)

Court Rules Act and Court of Appeal Act

Court of Appeal Rules

Contents
Part 1 — Interpretation
1Definitions and interpretation
2Interpretation — timing
Part 2 — How to File and Serve Documents
3General requirements for filing and serving documents
4Permitted methods of service
5Registrar directives — manner of filing documents
Part 3 — Steps at the Start of an Appeal
Division 1 — Bringing and Responding to an Appeal
6How to appeal
7How to respond to a notice of appeal
Division 2 — Bringing and Responding to a Cross Appeal
8When to bring a cross appeal
9How to bring a cross appeal
10How to respond to a notice of cross appeal
Division 3 — Bringing and Responding to Applications for Leave to Appeal
11Limited appeal orders
12When an application for leave to appeal is required
13How to apply for leave to appeal
14How to respond to an application for leave to appeal
15Applications for leave that must be heard concurrently
16Use of application book for leave to appeal in remainder of appeal
Division 4 — Appealing Subsequent Related Orders
17How to appeal a subsequent related order after an appeal is brought
Division 5 — Adding Additional Respondents to an Appeal
18Justice may add respondents to an appeal
Division 6 — Stays of Proceedings or Execution
19Definition
20Applying for a stay of proceedings or execution
21Responding to stay applications
Part 4 — Steps After an Appeal Is Brought
Division 1 — Appeals That Have Been Brought
22When an appeal is brought
Division 2 — Documents Filed to Ready an Appeal for Hearing
23Appeal record
24Transcripts of proceedings in court appealed from
25Factums
26Appeal book
27Book of authorities
28Settling the contents of a document
Division 3 — Additional Documents Filed to Ready a Cross Appeal for Hearing
29Factums on cross appeal
30Appeal books on cross appeal
Division 4 — Expediting Appeals
31Expediting appeals
Part 5 — Steps After an Appeal Is Ready for Hearing
Division 1 — Appeals That Are Ready for Hearing
32When an appeal is ready for hearing
Division 2 — Obtaining an Appeal Hearing Date
33Appellant must obtain appeal hearing date
34Respondent may obtain appeal hearing date
35Registrar may set appeal hearing date
Part 6 — Steps at the Hearing of an Appeal
36Points of law and authorities not cited in factum
37Condensed book of evidence and condensed book of authorities
Part 7 — Steps After an Appeal Has Been Heard
38Drawing up and entering the order of the court
39Applying to registrar for assessment of costs
40Applying to court for directions on costs
Part 8 — Managing the Appeal Process
Division 1 — General
41Dispensing with a rule or extending a time limit
42Attendance through telecommunications
43Having appeal heard by more than 3 justices
44Cross examination on affidavits
45Adjourning an appeal
46Abandoning an appeal or application for leave to appeal
Division 2 — Case Management
47Case management
48Powers of a justice on case management
Division 3 — Inactive Appeals
49Inactive appeal list
50Managing inactive appeal list
Division 4 — Dismissal of Appeals as Abandoned
51Appeals that are dismissed as abandoned
Part 9 — Applications
Division 1 — How to Bring and Respond to Applications Made to the Court, a Justice or the Registrar
52Applications made to the court, a justice or the registrar
53Application hearing date must be obtained
54Notice of application
55Responding to applications
56Registrar may set chambers application hearing date
Division 2 — Specific Requirements for Bringing and Responding to Certain Applications
57Urgent applications
58Payment of security
59Adducing fresh or new evidence
60Quashing an appeal or raising a preliminary objection
61Intervener status
62Varying an order of a justice
63Varying or cancelling an order of the registrar
Division 3 — Application Hearings
64Attendance at application hearings
65Adjourning applications before hearing date
Part 10 — Orders
66General requirements for orders
67Consent orders
68Settling the form or content of orders
Part 11 — Costs
Division 1 — Assessment of Costs
69Assessment of ordinary costs
70Assessment of increased costs
71Assessment of special costs
72Assessment of fees, disbursements and expenses
73Costs for preparation for activities that do not take place
74Costs owing between multiple parties
75Combining costs of multiple appeals
Division 2 — Offers to Settle Costs
76Offers to settle costs
Division 3 — Certificates of Costs
77Certificates of costs
Division 4 — Costs Orders Against Lawyers
78Costs orders against lawyers
Part 12 — General
Division 1 — Court Documents
79Required form of documents
80Parties must have address for service
81Party may show service ineffective
82Amending filed documents
83Registry hours and deemed filing
Division 2 — Court Fees
84Payment of court fees
85Order that no fees payable
Division 3 — Appointing and Changing Lawyers
86Party appointing or changing lawyer
87Lawyer withdrawals
88When a lawyer is the lawyer of record
Division 4 — Practice Directives
89Practice directives
Part 13 — Transition
90Definitions
91Application of rules to pre-existing appeals and applications for leave to appeal
92Bringing cross appeals in relation to pre-existing applications for leave to appeal
93Ordinary costs in relation to pre-existing appeals
94Page limits for cross appeal factums and replies
Schedule 1
Schedule 2
Schedule 3

Part 1 — Interpretation

Definitions and interpretation

1   (1) In these rules:

"Act" means the Court of Appeal Act;

"business day" means a day on which the court registries are open to the public;

"completion instructions" means the instructions issued by the registrar for completion of documents;

"document" includes the following:

(a) a photograph, film or sound recording;

(b) any record of a permanent or semi-permanent character;

(c) any information recorded or stored by means of any device;

"file", in relation to a document, means to file the document in a court registry in accordance with the requirements under these rules or any directives of the registrar issued under section 38 [directives in relation to filing] of the Act;

"hearing date" means the date set for a hearing;

"inactive appeal list" means the list of inactive appeals maintained by the registrar under Rule 49 (1);

"intervener" means a person who has been granted leave under Rule 61 [intervener status] to intervene in an appeal;

"obtain a hearing date", in relation to an appeal or application, means to obtain from the registrar a hearing date for the appeal or application;

"ordinary costs tariff" means the tariff of ordinary costs set out in Schedule 1;

"serve", in relation to a document, means to serve the document in accordance with these rules;

"supporting affidavit" means an affidavit that sets out any facts that a person intends to rely on at a hearing.

(2) In these rules, words and expressions that are not defined have the same meanings as in the Act.

Interpretation — timing

2   If the time for doing an act under these rules falls or expires on a day other than a business day, the time is extended to the next business day.

Part 2 — How to File and Serve Documents

General requirements for filing and serving documents

3   Unless a contrary intention appears, if a rule in these rules requires a person to file and serve a document that relates to an appeal, the person must

(a) file the document, and

(b) serve on each party to the appeal a copy of the filed version of the document.

Permitted methods of service

4   (1) A notice of appeal must be served on a respondent by

(a) serving the respondent personally,

(b) serving the respondent's lawyer of record in the court appealed from, or

(c) serving the respondent in any other manner directed by a justice or the registrar.

(2) A document, other than a notice of appeal, may be served on a party by

(a) serving the party personally,

(b) serving the party's lawyer of record on an appeal,

(c) if the party has filed a document containing an address for service,

(i) delivering the document to the party's address for service, or

(ii) sending the document to the party's email address for service, if any, or

(d) serving the party in any other manner directed by a justice or the registrar.

(3) A document transmitted for service by email or fax is deemed to be served as follows:

(a) if the document is transmitted at or before 4 p.m. on a business day, the document is deemed to be served on that day;

(b) if the document is transmitted at either of the following times, the document is deemed to be served on the next business day:

(i) after 4 p.m. on a business day;

(ii) any time on a day other than a business day.

Registrar directives — manner of filing documents

5   For the purposes of section 38 [directives in relation to filing] of the Act, and without limiting the authority of the registrar under that section, the registrar may issue directives

(a) requiring that any document under these rules be filed

(i) in either paper or electronic form, or

(ii) in both paper and electronic form, and

(b) specifying the number of copies of a document that must be filed.

Part 3 — Steps at the Start of an Appeal

Division 1 — Bringing and Responding to an Appeal

How to appeal

6   (1) A person who wishes to appeal an order must do the following within the time limit set out in subrule (2):

(a) file a notice of appeal in Form 1 that names as a respondent each person

(i) who was a party to the proceedings in the court appealed from, and

(ii) whose interests could be affected by the relief sought in the notice;

(b) serve, in accordance with Rule 4 (2) [permitted methods of service], on each respondent named in the notice of appeal a copy of the filed notice of appeal.

(2) The time limit for filing and serving a notice of appeal of an order is the following:

(a) unless paragraph (b) applies, not more than 30 days after the order is pronounced;

(b) if another enactment specifies a time limit within which the appeal must be commenced, that time limit.

How to respond to a notice of appeal

7   (1) A respondent who is served a notice of appeal and who wishes to participate in the appeal must, not more than 10 days after being served the notice of appeal, file and serve on the appellant a notice of appearance in Form 2.

(2) If a respondent who has been served a notice of appeal does not file a notice of appearance under this rule,

(a) the respondent is presumed to take no position on the appeal, and

(b) a party is not required to serve on the respondent any further documents related to the appeal, unless the court or a justice orders otherwise.

Division 2 — Bringing and Responding to a Cross Appeal

When to bring a cross appeal

8   A respondent may file a notice of cross appeal only if the respondent

(a) has filed a notice of appearance in Form 2,

(b) is seeking to vary the order being appealed, and

(c) is seeking relief from the court that is different from the relief sought by the appellant, as described in the notice of appeal.

How to bring a cross appeal

9   To bring a cross appeal, a respondent must do the following not more than 15 days after being served a notice of appeal:

(a) file a notice of cross appeal in Form 3;

(b) serve a copy of the filed notice of cross appeal

(i) on each party, and

(ii) on any other respondent named in the notice of cross appeal.

How to respond to a notice of cross appeal

10   (1) To respond to a notice of cross appeal, a respondent referred to in Rule 9 (b) (ii) must file and serve a notice of appearance in Form 2 not more than 10 days after being served the notice of cross appeal.

(2) If a respondent referred to in Rule 9 (b) (ii) does not file a notice of appearance under this rule,

(a) the respondent is presumed to take no position on the cross appeal, and

(b) a party is not required to serve on the respondent any further documents related to the cross appeal, unless the court or a justice orders otherwise.

Division 3 — Bringing and Responding to Applications for Leave to Appeal

Limited appeal orders

11   For the purposes of the definition of "limited appeal order" in section 1 of the Act, the following orders are prescribed as limited appeal orders:

(a) an order granting or refusing relief for which provision is made under any of the following Parts or rules of the Supreme Court Civil Rules:

(i) Rule 3-7 (22) [order for particulars];

(ii) Part 5 [Case Planning];

(iii) Part 7 [Procedures for Ascertaining Facts], other than Rule 7-7 (6) [application for order on admissions];

(iv) Rule 9-7 (11), (12), (17) or (18) [adjournment or dismissal, preliminary orders, orders, and right to vary or set aside order];

(v) Part 10 [Property and Injunctions];

(vi) Part 11 [Experts];

(vii) Rule 12-2 [Trial Management Conference];

(viii) Rule 18-1 [Inquiries, Assessments and Accounts];

(ix) Rule 21-7 [Foreclosure and Cancellation];

(x) Rule 22-1 (4) [evidence on an application];

(b) an order granting or refusing relief for which provision is made under any of the following Parts or rules of the Supreme Court Family Rules:

(i) Rule 4-6 (3) [order for particulars];

(ii) Part 5 [Financial Disclosure], other than Rule 5-1 (28) (b) and (c) [relief];

(iii) Rule 7-1 [Judicial Case Conference];

(iv) Part 9 [Procedures for Obtaining Information and Documents], other than Rule 9-6 (6) [application for order on admissions];

(v) Rule 10-3 (4) [evidence on an application];

(vi) Rule 11-3 (11), (12), (17) or (18) [adjournment or dismissal, preliminary orders, orders and right to vary or set aside order];

(vii) Part 12 [Property and Injunctions];

(viii) Part 13 [Court Ordered Reports and Expert Witnesses];

(ix) Rule 14-3 [Trial Management Conference];

(x) Rule 18-1 [Inquiries, Assessments and Accounts];

(c) an order granting or refusing interim relief under the Family Law Act or the Divorce Act (Canada);

(d) an order granting or refusing an assessment of a family matter made under section 211 [orders respecting reports] of the Family Law Act;

(e) an order granting or refusing an adjournment or an extension or a shortening of time;

(f) an order in respect of costs or security for costs, if the only matter being appealed is in respect of costs or security for costs;

(g) an order of a Supreme Court judge granting or refusing an appeal from an order referred to in any of paragraphs (a) to (f).

When an application for leave to appeal is required

12   A party bringing an appeal or cross appeal must apply for leave to appeal if any of the following apply:

(a) the order being appealed is a limited appeal order;

(b) an enactment, other than the Act, requires leave from the court or a justice to appeal or cross appeal the order being appealed;

(c) the party bringing the appeal or cross appeal does not know whether leave of the court is required to bring the appeal or cross appeal.

How to apply for leave to appeal

13   A party who wishes to bring an application for leave to appeal must

(a) file and serve a notice of application in Form 4 and an application book for leave to appeal prepared in accordance with the completion instructions not more than 30 days after filing the related notice of appeal or notice of cross appeal, as applicable, and

(b) obtain a hearing date for the application that is at least 10 business days after the application for leave to appeal is filed and served.

How to respond to an application for leave to appeal

14   (1) A party who wishes to respond to an application for leave to appeal must file and serve a response book for leave to appeal at least 5 business days before the application hearing date.

(2) A response book for leave to appeal must be prepared in accordance with the completion instructions.

Applications for leave that must be heard concurrently

15   Unless a justice or the registrar orders otherwise, if the appellant and one or more respondents apply for leave to appeal in relation to the same order, those applications must be heard at the same time.

Use of application book for leave to appeal in remainder of appeal

16   A justice may allow an application book for leave to appeal to stand as a substitute for one or more documents that may be filed in an appeal.

Division 4 — Appealing Subsequent Related Orders

How to appeal a subsequent related order after an appeal is brought

17   (1) In this rule, "subsequent related order", in relation to an order that is under appeal, means an order that

(a) is made after the order that is under appeal, and

(b) involves the same parties and the same cause or matter.

(2) This rule applies to a party who is

(a) an appellant, or

(b) a respondent who brings a cross appeal.

(3) A party may appeal a subsequent related order under this rule

(a) before a notice of hearing of appeal is filed for the order that is under appeal, or

(b) after a notice of hearing of appeal has been filed, if permitted by a justice or the registrar on application.

(4) The registrar may dispense with a requirement under Division 1 of Part 9 in an application referred to in subrule (3) (b).

(5) A party who appeals a subsequent related order under subrule (3) must,

(a) in the case of an appellant, file an amended notice of appeal, or

(b) in the case of a respondent who brings a cross appeal, file

(i) file a notice of cross appeal, and

(ii) if the notice of cross appeal has already been filed, file an amended notice of cross appeal.

(6) A party referred to in subrule (5) must

(a) address the subsequent related order in the party's factum, or

(b) if the factum has already been filed, file and serve an amended factum.

(7) A party who is required to file and serve an amended factum under subrule (6) (b) must do so,

(a) in the case of an appeal under subrule (3) (a), before a notice of hearing of appeal is filed, unless otherwise directed by a justice or the registrar, and

(b) in the case of an appeal under subrule (3) (b), within the time limit set by the justice or registrar.

(8) Unless otherwise directed by a justice or the registrar, a party who is served an amended factum must file and serve an amended response factum not more than 15 days after being served.

(9) For the purposes of subrules (5) to (8),

(a) the amendments in an amended factum may address only the amendments made in the amended notice of appeal, and

(b) the amendments in an amended response factum may address only the amendments made in the amended factum.

(10) Rule 82 [amending filed documents] does not apply to an amended notice of appeal, amended factum or amended response factum that is filed under this rule.

(11) For certainty, this rule does not affect a person's right to appeal a subsequent related order in accordance with Divisions 1 to 3 of Part 3.

Division 5 — Adding Additional Respondents to an Appeal

Justice may add respondents to an appeal

18   (1) A justice may make an order under subrule (2), if

(a) a person was not named as a respondent in a notice of appeal or notice of cross appeal, and

(b) the justice determines that the person has interests that could be affected by the relief sought in the appeal or cross appeal.

(2) On application by a person referred to in subrule (1)  (a), a justice, in the circumstances referred to in that subrule, may order that

(a) the person be added as a respondent to the appeal,

(b) the notice of appeal or notice of cross appeal, as applicable, be amended to name the person as a respondent, and

(c) the person be served the amended notice of appeal or notice of cross appeal, as applicable.

(3) Before filing a notice of application or any other document for the purposes of commencing an application under subrule (2), a person who wishes to bring an application must obtain a hearing date for the application.

(4) A person who wishes to bring an application under this rule must file and serve the following documents at least 5 business days before the application hearing date:

(a) a notice of application in Form 4;

(b) the person's supporting affidavits, if any;

(c) the person's written argument, if any.

(5) A person who is served a notice of application under this rule may, for the purposes of responding to the application, file and serve the following documents at least 2 business days before the application hearing date:

(a) the person's supporting affidavits, if any;

(b) the person's written argument, if any.

(6) The registrar may set the date, time and place for the hearing of an application under this rule.

Division 6 — Stays of Proceedings or Execution

Definition

19   In this Division, "stay application" means an application for a stay of proceedings or a stay of execution referred to in Rule 20 (1).

Applying for a stay of proceedings or execution

20   (1) A party may apply for a stay of proceedings or a stay of execution to put on hold a proceeding or a process of execution pending the outcome of an appeal.

(2) A party may join a stay application with the party's application for leave to appeal in accordance with subrule (4).

(3) To bring a stay application, a party must file and serve a notice of application in Form 4 and an application book prepared in accordance with the completion instructions at least 5 business days before the application hearing date.

(4) To join a stay application with an application for leave to appeal, a party must, instead of bringing an application for leave to appeal under Rule 13,

(a) file and serve a notice of application in Form 4 and an application book for leave to appeal and stay prepared in accordance with the completion instructions not more than 30 days after filing the related notice of appeal or notice of cross appeal, as applicable, and

(b) obtain a hearing date for the application that is at least 10 business days after the application for leave to appeal is filed and served.

Responding to stay applications

21   (1) A party who wishes to respond to a stay application must do one of the following:

(a) in the case of a stay application that is not joined with an application for leave to appeal, file and serve a response book at least 2 business days before the application hearing date;

(b) in the case of a stay application that is joined with an application for leave to appeal, file and serve a response book for leave to appeal and stay at least 5 business days before the application hearing date.

(2) A response book under this rule must be prepared in accordance with the completion instructions.

Part 4 — Steps After an Appeal Is Brought

Division 1 — Appeals That Have Been Brought

When an appeal is brought

22   An appeal is brought for the purposes of these rules as follows:

(a) if leave to appeal is not required, when the appellant

(i) files the notice of appeal, and

(ii) serves a copy of the filed notice of appeal on each respondent named in the notice of appeal;

(b) if leave to appeal is required, when leave to appeal is granted.

Division 2 — Documents Filed to Ready an Appeal for Hearing

Appeal record

23   (1) An appellant must file and serve an appeal record

(a) not more than 60 days after filing a notice of appeal, or

(b) if leave to appeal is required, not more than 60 days after leave to appeal is granted.

(2) An appeal record must be prepared in accordance with the completion instructions.

Transcripts of proceedings in court appealed from

24   (1) In this rule, "book of transcripts" means a book of transcripts that

(a) includes the transcripts required under subrule (3), and

(b) meets the requirements for transcripts set out in subrule (4).

(2) An appellant must file and serve a book of transcripts

(a) not more than 60 days after filing a notice of appeal, or

(b) if leave to appeal is required, not more than 60 days after leave to appeal is granted.

(3) Unless a justice or the registrar orders otherwise, a book of transcripts must contain the following from the proceedings under appeal:

(a) transcripts of all oral testimony, if any was given;

(b) transcripts other than testimony, if they are necessary to resolve the issues under appeal.

(4) Transcripts that are filed in the court must be prepared

(a) by an official reporter from the official record of the court appealed from, and

(b) in accordance with the British Columbia Court Transcription Manual.

(5) The registrar may dispense with a requirement under subrule (4).

(6) Despite subrule (3), an appellant may exclude any portion of a transcript from a book of transcripts with the agreement of the other parties.

Factums

25   (1) An appellant must file and serve an appellant's factum not more than 30 days after filing the appeal record.

(2) A respondent must file and serve a respondent's factum not more than 30 days after being served an appellant's factum.

(3) An appellant may reply to a respondent's factum by filing and serving an appellant's reply not more than 7 days after being served the respondent's factum.

(4) Documents filed under this rule must be prepared in accordance with the completion instructions.

Appeal book

26   (1) In this rule:

"appeal book" means a book that

(a) contains the evidence referred to in a party's factum, and

(b) meets the requirements set out in subrule (4);

"joint appeal book" means an appeal book prepared jointly by all the parties to an appeal.

(2) If the appellant's factum refers to evidence, the appellant must file and serve an appeal book when the appellant files and serves that factum.

(3) If the respondent's factum refers to evidence that is not included in the appellant's appeal book, the respondent must file and serve an appeal book when the respondent files and serves that factum.

(4) An appeal book and joint appeal book must

(a) be prepared in accordance with the completion instructions, and

(b) include only as much evidence as is necessary to resolve the issues on appeal.

(5) Despite subrules (2) and (3),

(a) the parties may file a joint appeal book not more than 30 days after the respondent files the respondent's factum, and

(b) filing a joint appeal book under paragraph (a) satisfies the requirement for a party to file and serve an appeal book.

(6) If the costs of an appeal are increased unduly by a party's failure to comply with subrule (4), a justice or the registrar may consider the party's failure to comply when awarding or assessing costs.

Book of authorities

27   (1) In this rule:

"book of authorities" means a book that includes, subject to subrule (5),

(a) each authority referred to in a party's factum, and

(b) each authority that a party intends to refer the court to at the hearing of an appeal;

"joint book of authorities" means a book of authorities prepared jointly by all the parties to an appeal.

(2) A party must file and serve a book of authorities at least 30 days before an appeal hearing date if

(a) the party's factum refers to an authority, or

(b) the party intends to refer the court to an authority at the hearing of the appeal.

(3) Despite subrule (2),

(a) the parties to an appeal may file a joint book of authorities at least 30 days before an appeal hearing date, and

(b) filing a joint book of authorities under paragraph (a) satisfies the requirement for a party to file and serve a book of authorities.

(4) A book of authorities and joint book of authorities must be prepared in accordance with the completion instructions.

(5) If the registrar publishes a list of authorities, a party is not required to include an authority on that list in a book of authorities or joint book of authorities, unless the court or a justice will be asked to depart from or distinguish that authority.

Settling the contents of a document

28   (1) A party may apply to the registrar to settle the contents of one or more of the following:

(a) an appeal record;

(b) a transcript;

(c) an appeal book.

(2) On application under subrule (1), the registrar may do one or more of the following in relation to a document referred to in that subrule:

(a) settle or limit the contents of the document;

(b) direct that a party add or remove materials from the document;

(c) direct that the document not be used in the appeal;

(d) provide any other directions that may be required as a result of settling the contents of the document.

(3) The registrar may take an action under subrule (2) whether or not all parties attend the application hearing.

Division 3 — Additional Documents Filed to Ready a Cross Appeal for Hearing

Factums on cross appeal

29   (1) Not more than 30 days after being served an appellant's factum under Rule 25 (1), a respondent who has brought a cross appeal must file and serve a respondent's cross appeal factum instead of a respondent's factum under Rule 25 (2).

(2) If an appellant is served a respondent's cross appeal factum, the appellant

(a) must file and serve an appellant's cross appeal response factum not more than 14 days after being served, and

(b) may file and serve an appellant's reply not more than 7 days after being served.

(3) A respondent referred to in subrule (1) may reply to an appellant's cross appeal response factum by filing and serving a respondent's cross appeal reply not more than 7 days after being served the appellant's cross appeal response factum.

(4) A party must not unnecessarily repeat in a factum for a cross appeal any matters contained in a factum for the main appeal.

(5) Documents filed under this rule must be prepared in accordance with the completion instructions.

Appeal books on cross appeal

30   (1) In this rule, "appeal book" and "joint appeal book" have the same meaning as in Rule 26.

(2) If a respondent's cross appeal factum refers to evidence and that evidence is not included in the appellant's appeal book, the respondent

(a) must file and serve an appeal book when the respondent files and serves the respondent's cross appeal factum, or

(b) may, instead of filing and serving an appeal book under paragraph (a), file a joint appeal book with the other parties not more than 30 days after filing the respondent's cross appeal factum.

(3) An appeal book and joint appeal book must be prepared in accordance with the completion instructions.

Division 4 — Expediting Appeals

Expediting appeals

31   (1) A party may request to expedite an appeal by doing the following:

(a) submitting a written request that meets the requirements set out in subrule (2) to the registrar;

(b) serving on each party a copy of the written request,

(2) A written request to expedite an appeal must succinctly state

(a) the nature of the appeal,

(b) the reasons for the request,

(c) whether the other parties consent to expediting the appeal,

(d) the proposed terms for expediting the hearing of the appeal, including

(i) a schedule for the steps required to bring the appeal to hearing, and

(ii) an estimate of the time required for the hearing of the appeal, and

(e) a list of proposed dates for the hearing of the appeal.

(3) A party may oppose a written request under subrule (1) by doing the following not more than 2 business days after being served the written request:

(a) submitting a written response to the registrar;

(b) serving on each party a copy of the written response.

Part 5 — Steps After an Appeal Is Ready for Hearing

Division 1 — Appeals That Are Ready for Hearing

When an appeal is ready for hearing

32   An appeal is ready for hearing on

(a) the date the appellant has filed both

(i) the appellant's factum, and

(ii) a copy of each order being appealed, in the form that the order was entered in the court appealed from, or

(b) the date specified by a justice or the registrar as the date the appeal is ready for hearing.

Division 2 — Obtaining an Appeal Hearing Date

Appellant must obtain appeal hearing date

33   (1) After an appeal is ready for hearing, an appellant must, without delay,

(a) obtain a hearing date for the appeal, and

(b) inform the registrar if the parties disagree on the length of time required for the hearing of the appeal.

(2) After obtaining a hearing date under subrule (1), the appellant must, without delay, file and serve a notice of hearing of appeal in Form 5 that has attached a copy of each order being appealed, in the form that the order was entered in the court appealed from.

Respondent may obtain appeal hearing date

34   (1) A respondent may obtain a hearing date for an appeal if

(a) the respondent has filed a respondent's factum or respondent's cross appeal factum, and

(b) the appellant has not complied with Rule 33 (1) or (2).

(2) If a respondent obtains a hearing date under subrule (1), the respondent must, not more than 5 days after obtaining the hearing date, file and serve a notice of hearing of appeal in Form 5 that has attached a copy of each order being appealed, in the form that the order was entered in the court appealed from.

Registrar may set appeal hearing date

35   (1) The registrar may set the date, time and place for the hearing of an appeal, subject to the directions of the chief justice.

(2) On the request of the registrar, a party must, without delay, provide to the registrar an estimate of the time required for the hearing of an appeal.

Part 6 — Steps at the Hearing of an Appeal

Points of law and authorities not cited in factum

36   The court, on terms it considers just, may permit a party to use arguments, raise points of law or cite authorities that were not used, raised or cited in the party's factum filed under Part 4 [Steps After an Appeal Is Brought].

Condensed book of evidence and condensed book of authorities

37   (1) In this rule:

"condensed book of authorities" means a book that contains excerpts of authorities

(a) that are included in the party's filed book of authorities, and

(b) that the party intends to refer the court to during the hearing of an appeal;

"condensed book of evidence" means a book that contains materials

(a) that were filed in an appeal, and

(b) that a party intends to refer the court to during the hearing of the appeal.

(2) A party may submit a condensed book of authorities or a condensed book of evidence, or both, to the court at the hearing of an appeal by providing a copy of the condensed book to all of the following persons at the commencement of the hearing:

(a) each justice in the division of the court hearing the appeal;

(b) each other party at the hearing of the appeal.

(3) Subrule (2) does not apply in respect of a condensed book of authorities or condensed book of evidence if a filing directive requires the condensed book to be filed before the appeal hearing date.

(4) A condensed book of authorities must be prepared in accordance with the completion instructions.

(5) A condensed book of evidence

(a) must be prepared in accordance with the completion instructions, and

(b) subject to subrule (6), may only include the following documents filed in the appeal:

(i) extracts of a transcript;

(ii) documents from the appeal record or appeal book.

(6) Any extracts or documents included in a condensed book of evidence may include only as much material as is necessary to understand the context of the key portions of the extract or document.

Part 7 — Steps After an Appeal Has Been Heard

Drawing up and entering the order of the court

38   After judgment on appeal has been given, the order of the court must be drawn up and entered in accordance with Rule 66.

Applying to registrar for assessment of costs

39   (1) After judgment on appeal has been given, a party who is entitled to costs may apply to the registrar for an assessment of costs under Division 1 of Part 11.

(2) In bringing an application under subrule (1), a party must, in addition to complying with the requirements under Rules 53 [application hearing date must be obtained] and 54 [notice of application], attach to the notice of application a bill of costs in Form 21.

(3) The registrar may order a party to give notice of an assessment of costs to a person whose interests could be affected by the assessment, including a person who has an interest in a fund or an estate.

Applying to court for directions on costs

40   (1) After judgment on appeal has been given, a party may apply to the court for directions under section 45 [powers of court or a justice in relation to costs] of the Act if the parties disagree on matters in relation to costs.

(2) To bring an application under subrule (1), a party must

(a) submit a written request to the registrar that includes

(i) a summary of the disagreement and the party's position on the disagreement, and

(ii) a proposed schedule for submissions by the parties or a request for the registrar to set a schedule for submissions by the parties, and

(b) serve on each party a copy of the written request.

Part 8 — Managing the Appeal Process

Division 1 — General

Dispensing with a rule or extending a time limit

41   A person may apply to a justice to do one or more of the following under section 32 [dispensing with rules and varying time limits] of the Act:

(a) dispense with a requirement of these rules;

(b) extend the time limit provided in these rules for doing an act.

Attendance through telecommunications

42   The court, a justice or the registrar may allow a person to attend a hearing or case management by telephone, video conference or other means of telecommunication authorized by the chief justice.

Having appeal heard by more than 3 justices

43   (1) A party may request that an appeal be heard by more than 3 justices by doing the following at least 6 weeks before the appeal hearing date:

(a) submitting a written request stating the reasons for the request to the registrar;

(b) serving on each party a copy of the written request.

(2) A party may oppose a written request under subrule (1) by doing the following not more than 5 days after being served the written request:

(a) submitting a written response to the registrar;

(b) serving on each party a copy of the written response.

Cross examination on affidavits

44   (1) A party to an appeal may apply to the court or a justice to cross-examine a deponent of an affidavit filed in relation to the appeal by another party or an intervener.

(2) On application under subrule (1), the court or a justice may order that the deponent attend for cross-examination before a commissioner for taking affidavits specified by the court or justice.

(3) A cross-examination of a deponent must occur before the hearing of the appeal or application for which the deponent's affidavit was filed.

Adjourning an appeal

45   (1) A party must notify the registrar without delay if, after a hearing date has been set for an appeal or application,

(a) the party wishes to adjourn the appeal, or

(b) all the parties agree that the appeal should be adjourned.

(2) A party who wishes to adjourn an appeal during the 3 weeks before the appeal hearing date must submit a written request for the adjournment to the registrar.

Abandoning an appeal or application for leave to appeal

46   If an appeal or application for leave to appeal is abandoned, because of settlement or for any other reason, the appellant must, without delay, file and serve a notice of settlement or abandonment in Form 6.

Division 2 — Case Management

Case management

47   (1) A party may request that an appeal be referred to case management by

(a) submitting a written request to the registrar, and

(b) serving on each party a copy of the written request.

(2) A justice or the registrar may, on request of a party or on the justice's or registrar's own initiative, do one or both of the following:

(a) direct that the parties attend case management before a justice or the registrar, either

(i) in person, or

(ii) by telephone, video conference or other means of telecommunication authorized by the chief justice;

(b) direct that case management be conducted in writing.

(3) A party must participate in case management as directed under subrule (2).

(4) Despite subrule (3), a party is not required to attend case management before a justice or the registrar if the party's lawyer attends.

Powers of a justice on case management

48   (1) During case management for an appeal, a justice may make orders or give directions, with or without a party making an application, for the purposes of managing the conduct of the appeal, including the following:

(a) simplifying or isolating issues on appeal;

(b) setting the time for the hearing of the appeal;

(c) setting a schedule for the steps required to bring the appeal to hearing;

(d) requiring that 2 or more appeals be heard together;

(e) permitting substitutional service;

(f) allowing a factum to include additional pages;

(g) requiring that monies be paid in and out of court;

(h) amending, in any manner, any documents filed in the court;

(i) granting permission to hear an application on shorter notice than otherwise required under these rules;

(j) granting cross-examination on an affidavit;

(k) settling the contents of an appeal record, appeal book or transcript.

(2) During case management, a justice or the registrar may refer a matter to be heard by the court or a justice in chambers if the justice or registrar considers it to be in the interests of justice.

Division 3 — Inactive Appeals

Inactive appeal list

49   (1) The registrar must, in accordance with this Division, maintain a list of appeals that are inactive.

(2) If an appeal is on the inactive appeal list during a period, any application for leave to appeal that relates to the appeal is deemed to be on the inactive appeal list during that period.

(3) An appellant may not file any document in relation to an appeal or application for leave to appeal that is on the inactive appeal list unless the document relates to an application for leave to proceed with the appeal.

Managing inactive appeal list

50   (1) The registrar must place an appeal on the inactive appeal list if a notice of hearing of appeal is not filed in accordance with these rules by the date that is

(a) one year after the notice of appeal is filed for the appeal, or

(b) 60 days after the appeal is ready for hearing.

(2) Other than a consent order or application to reactivate the appeal, the registrar may not accept filings for an appeal that is on the inactive appeal list.

(3) The registrar must remove an appeal from the inactive appeal list if a justice grants leave to proceed with the appeal.

(4) The registrar must return an appeal to the inactive appeal list if either of the following occurs:

(a) a party fails to comply with the terms or conditions imposed, or directions given, by a justice in an order granting leave to proceed under subrule (3);

(b) a notice of hearing of appeal is not yet filed more than 180 days after a justice grants leave to proceed under subrule (3).

(5) If the registrar places an appeal on or returns an appeal to the inactive appeal list, the registrar must provide notice to each party to the appeal who has provided an address for service.

Division 4 — Dismissal of Appeals as Abandoned

Appeals that are dismissed as abandoned

51   (1) For the purposes of section 23 [appeals or applications for leave to appeal dismissed as abandoned] of the Act, an appeal or application for leave to appeal is dismissed as abandoned if it remains on the inactive appeal list for 180 days.

(2) Unless a justice orders otherwise, an appeal that is dismissed as abandoned under subrule (1) may not be reinstated.

Part 9 — Applications

Division 1 — How to Bring and Respond to Applications Made to the Court, a Justice or the Registrar

Applications made to the court, a justice or the registrar

52   (1) Subject to subrule (2), this Division applies to every application made to the court, a justice or the registrar.

(2) This Division does not apply to the following applications:

(a) an application for leave to appeal under Rule 13 [how to apply for leave to appeal];

(b) an application to be added as a respondent under Rule 18 [justice may add respondents to an appeal];

(c) an application for a stay of proceedings or stay of execution under Rule 20 [applying for a stay of proceedings or execution];

(d) an application referred to in Division 2 of this Part;

(e) an application to the registrar to settle an order under Rule 68 [settling the form or content of orders];

(f) an application for an order that no fees are payable under Rule 85 [order that no fees payable].

Application hearing date must be obtained

53   Before filing a notice of application or any other document for the purposes of commencing an application, a person who wishes to bring an application must obtain a hearing date for the application.

Notice of application

54   A person who wishes to bring an application must file and serve the following documents at least 5 business days before the application hearing date:

(a) a notice of application in Form 4;

(b) the person's supporting affidavits, if any;

(c) the person's written argument, if any.

Responding to applications

55   A person who is served a notice of application may, for the purposes of responding to the application, file and serve the following documents at least 2 business days before the application hearing date:

(a) the person's supporting affidavits, if any;

(b) the person's written argument, if any.

Registrar may set chambers application hearing date

56   The registrar may set the date, time and place for the hearing of a chambers application under these rules.

Division 2 — Specific Requirements for Bringing and Responding to Certain Applications

Urgent applications

57   (1) In this rule, "urgent application" means an application made under subrule (2) for permission to bring another application on shorter notice.

(2) In case of urgency, a person may apply for permission to bring an application on shorter notice than otherwise required under these rules by

(a) obtaining a hearing date for the application, and

(b) filing an urgent application in Form 7.

(3) On an urgent application, a justice or the registrar may do one or more of the following:

(a) order that an application be heard on shorter notice than otherwise required under these rules, including

(i) setting the date for hearing the application, and

(ii) setting the date by which documents in relation to the application must be filed and served;

(b) impose conditions or give directions related to the urgent application, including that notice be served on another party.

(4) If an order is made under subrule (3), the party who brought the urgent application must serve notice of the order on each party.

Payment of security

58   (1) A party who wishes to apply for an order for payment into court of security under section 34 [payment of security] of the Act must

(a) obtain a hearing date for the application, and

(b) file and serve the following documents at least 5 business days before the application hearing date:

(i) a notice of application in Form 4;

(ii) an application book prepared in accordance with the completion instructions.

(2) A party who is served an application referred to in subrule (1) may, for the purposes of responding to the application, file and serve, at least 2 business days before the application hearing date, a response book prepared in accordance with the completion instructions.

Adducing fresh or new evidence

59   (1) A party who wishes to apply for leave to adduce evidence that was not before the court appealed from must, at least 30 days before the appeal hearing date, file and serve the following documents:

(a) a notice of application in Form 4;

(b) a supporting affidavit that includes the evidence that the party is seeking to adduce;

(c) the party's other supporting affidavits, if any;

(d) the party's written argument, if any, that sets out why the party should be permitted to adduce the evidence.

(2) A party who is served an application referred to in subrule (1) may, for the purposes of responding to the application, file and serve the following documents at least 7 business days before the application hearing date:

(a) the party's supporting affidavits, if any;

(b) the party's written argument, if any.

(3) Unless a justice or the registrar orders otherwise, an application brought under this rule must be heard at the time of the hearing of the appeal by the division of the court hearing the appeal.

(4) For certainty, a party's factum under Rule 25 or 29 may refer to evidence that was not before the court appealed from even though an application under this rule about whether the evidence may be adduced has not yet been heard.

Quashing an appeal or raising a preliminary objection

60   (1) This rule applies to an application to do one or more of the following:

(a) strike part of a factum;

(b) raise a preliminary objection to an appeal;

(c) quash an appeal before it is heard.

(2) A party who wishes to apply to do anything referred to in subrule (1) must, at least 7 business days before the application hearing date, file and serve the following documents:

(a) a notice of application in Form 4;

(b) the party's supporting affidavits, if any;

(c) the party's written argument, if any.

(3) A party who is served an application referred to in subrule (2) may, for the purposes of responding to the application, file and serve the following documents at least 2 business days before the application hearing date:

(a) the party's supporting affidavits, if any;

(b) the party's written argument, if any.

(4) Unless a justice or the registrar orders otherwise, an application under this rule must be heard at the time of the hearing of the appeal.

Intervener status

61   (1) A person, other than a party, interested in an appeal may apply to a justice for leave to intervene in the appeal.

(2) To apply for leave to intervene in an appeal, a person must do the following no later than 14 days after the appellant files the appellant's factum:

(a) obtain a hearing date for the application;

(b) file and serve the following documents:

(i) a notice of application in Form 4;

(ii) a memorandum of argument prepared in accordance with the completion instructions.

(3) In making an order granting leave to intervene, a justice

(a) must specify the date on which the intervener's factum is due, and

(b) may make any other order the justice considers appropriate to accommodate the intervener's participation in an appeal, including

(i) limiting the issues on which the intervener may intervene,

(ii) requiring the parties to serve documents on the intervener as if the intervener were a party, or

(iii) requiring the intervener to pay additional costs incurred by any party as a result of the intervention.

(4) Unless a justice orders otherwise, an intervener's factum

(a) must be prepared in accordance with the completion instructions, and

(b) must not exceed 10 pages.

(5) An intervener may not present oral argument during the hearing of an appeal, unless a justice orders otherwise.

Varying an order of a justice

62   (1) In addition to an order referred to in section 29 (2) (a) [varying orders of a justice] of the Act, the following are prescribed under section 29 of the Act as orders that may not be varied:

(a) an order or direction under Rule 48 (1) granting or refusing relief in a case management conference;

(b) an order for shorter notice in bringing an application than otherwise required under these rules;

(c) an order to expedite an appeal.

(2) A person who wishes to apply to have the court, under section 29 of the Act, vary an order other than an order referred to in subrule (1) must do the following not more than 7 days after the order is made:

(a) obtain a hearing date for the application;

(b) file and serve a notice of application to vary an order of a justice in Form 8.

(3) A person who files a notice of application under subrule (2) must, not more than 14 days after filing the notice of application, file and serve an application book prepared in accordance with the completion instructions.

(4) A person who wishes to respond to an application book filed under subrule (3) must file and serve, not more than 7 days after being served the application book, a response book prepared in accordance with the completion instructions.

(5) The date, time and place for the hearing of an application under this rule must be set by the registrar.

Varying or cancelling an order of the registrar

63   (1) In this rule, "order" includes a certificate of costs issued by the registrar.

(2) A person who wishes to apply to have a justice, under section 35 [varying orders of a justice or registrar] of the Act, vary or cancel an order or direction of the registrar must do the following not more than 7 days after the order was made or direction given:

(a) obtain a hearing date for the application;

(b) file and serve the following documents:

(i) a notice of application in Form 4;

(ii) the person's supporting affidavits, if any;

(iii) the person's written argument, if any.

(3) A person who is served a notice of application referred to in subrule (2) may, for the purposes of responding to the application, file and serve the following documents at least 2 business days before the application hearing date:

(a) the person's supporting affidavits, if any;

(b) the person's written argument, if any.

Division 3 — Application Hearings

Attendance at application hearings

64   (1) In this Division, "party", in relation to an application, means

(a) the person who brings the application in accordance with these rules, and

(b) a person who is served the notice of application in relation to the application in accordance with these rules.

(2) Subject to subrule (2), this Division applies to every application made to the court, a justice or the registrar.

(3) This Division does not apply to the following applications:

(a) an application to the registrar under Rule 68 to settle an order;

(b) an application for an order that no fees are payable under Rule 85.

(4) Each party to an application must attend the hearing of the application

(a) in person, or

(b) if permitted under Rule 42 [attendance through telecommunications], by telephone, video conference or other means of telecommunication.

(5) Despite subrule (1), a party to an application is not required to attend the hearing of an application if the person's lawyer attends.

Adjourning applications before hearing date

65   (1) Before the hearing date of an application,

(a) the person bringing the application may seek to adjourn the hearing by filing a requisition in accordance with this rule, or

(b) with the consent of the person bringing the application, a person responding to the application may seek to adjourn the hearing by filing a requisition in accordance with this rule.

(2) A requisition referred to in subrule (1) must be

(a) completed in Form 9, and

(b) filed before 2 p.m. on the business day before the application hearing date.

(3) Unless a justice or the registrar directs otherwise, an application stands adjourned if a requisition in respect of the application is filed in accordance with subrules (1) and (2).

(4) For certainty, if an application does not stand adjourned under subrule (3),

(a) the parties to the application must attend the hearing of the application, and

(b) a party to the application may request an adjournment at that hearing.

(5) If the hearing of an application is adjourned under this rule without setting a new application hearing date, the person bringing the application may set a new application hearing date by filing and serving, at least 5 business days before the new application hearing date, a requisition in Form 9 setting out the new hearing date and time.

Part 10 — Orders

General requirements for orders

66   (1) An order of the court or a justice must be

(a) drawn up in the form required under subrule (3),

(b) dated as of the date the order is pronounced,

(c) approved in writing by each party or lawyer of record, unless the court, a justice or the registrar directs otherwise, and

(d) submitted to the court and entered after it is completed and approved in accordance with paragraphs (a) to (c) of this subrule.

(2) For the purpose of subrule (1) (a), an order may be drawn up by

(a) a party who attended the hearing,

(b) a lawyer who attended the hearing, or

(c) the registrar, if and as directed by the court or a justice.

(3) An order must be in the following form:

(a) in the case of an order of a justice, Form 10;

(b) in the case of an order resulting from a decision made by 3 or more justices, Form 11;

(c) in the case of an order resulting from an application to vary an order of a justice, Form 12.

(4) The registrar must keep all entered orders, in accordance with any directions given by the chief justice.

Consent orders

67   (1) A consent order must not be entered unless the consent of each party affected by the order is demonstrated by the party or the party's lawyer

(a) orally before the court, a justice or the registrar, or

(b) in writing.

(2) A party seeking one of the following consent orders must file a draft of the order in the following form:

(a) in the case of an order to extend the time to file a document, Form 13;

(b) in the case of an order to remove from the inactive appeal list an appeal that has not already been removed from the inactive appeal list, Form 14;

(c) in the case of any other consent order, Form 15.

Settling the form or content of orders

68   (1) If the parties to an appeal do not agree on the form or content of an order, the parties must apply to the registrar to settle the order.

(2) On application under subrule (1), the registrar may settle the form or content of an order, with or without a hearing and whether or not all parties attend the application hearing.

(3) The registrar may refer a draft order to the division of the court or the justice who made the order.

Part 11 — Costs

Division 1 — Assessment of Costs

Assessment of ordinary costs

69   (1) In this rule, "unit" is a number representing an amount of time that would ordinarily be spent on a matter, as set out in the ordinary costs tariff.

(2) Ordinary costs payable to a party must be assessed in accordance with this rule, regardless of whether those costs are payable

(a) by another party,

(b) out of a fund of other parties, or

(c) out of a fund in which the party whose costs are being assessed has a common interest with other persons.

(3) On an assessment of ordinary costs for a proceeding, the registrar must allow each unit in each item in the ordinary costs tariff that the registrar determines was proper or reasonably necessary to conduct the proceeding.

(4) For certainty, on an assessment of ordinary costs for a proceeding, the registrar must disallow any items in the ordinary costs tariff that were not proper or reasonably necessary to conduct the proceeding.

(5) If a maximum and minimum number of units are provided in an item in the ordinary costs tariff, the registrar may allow only a number of units in the item within that range.

(6) In making an allowance under subrule (5), the registrar must have regard to the following principles:

(a) the minimum number of units in a range is for matters on which little time should ordinarily be spent;

(b) the maximum number of units in a range is for matters on which a great deal of time should ordinarily be spent.

(7) The value for each unit allowed on an assessment of ordinary costs is as follows:

(a) in the case of scale A, $110;

(b) in the case of scale B, $170.

(8) Ordinary costs must be assessed under scale A, unless a justice orders that ordinary costs be assessed under scale B.

(9) In fixing the scale of ordinary costs, a justice

(a) must consider the following principles:

(i) scale A is for matters of ordinary complexity;

(ii) scale B is for matters of unusual complexity or importance, and

(b) may consider the following:

(i) whether a difficult issue of law, fact or construction is involved;

(ii) whether an issue is of importance to a class or body of persons, or is of general interest.

Assessment of increased costs

70   (1) At any time before the costs for an appeal are assessed, a justice may order costs to be assessed as increased costs if the justice determines that assessment under the ordinary cost tariff would create an unjust result.

(2) If costs are ordered to be assessed as increased costs, the registrar must

(a) fix the fees that would have been allowed if an order for special costs had been made under Rule 71 (1), and

(b) allow as costs

(i) half of those fees, or

(ii) a different proportion of those fees, as ordered by the court or a justice.

Assessment of special costs

71   (1) A justice may order that costs be assessed as special costs.

(2) If costs for a proceeding are ordered to be assessed as special costs, the registrar must allow each fee that the registrar determines was proper or reasonably necessary to conduct the proceeding.

(3) In making a determination under subrule (2), the registrar must consider all of the circumstances, including the following:

(a) the complexity of the proceeding;

(b) the difficulty or novelty of the matters involved;

(c) the amount involved in the proceeding;

(d) the time reasonably spent in conducting the proceeding;

(e) the importance of the proceeding, or of the result obtained, to the party whose costs are being assessed;

(f) the benefit, to the party whose costs are being assessed, of the services rendered by the party's lawyer;

(g) the skill, specialized knowledge and responsibility required of the lawyer of the party whose costs are being assessed;

(h) any party's conduct that tended to shorten or unnecessarily lengthen the duration of the proceeding.

(4) A party may render a bill for special costs as a lump sum.

(5) A bill for special costs rendered as a lump sum must include the following information in sufficient detail for a lawyer to advise a client about the reasonableness of the charges made:

(a) a description of the nature of the services rendered;

(b) a description of the matters involved.

(6) A party to an assessment of a bill for special costs, or a review of a lump sum bill for special costs, may submit as evidence an opinion of a lawyer respecting

(a) the nature and importance of the services rendered,

(b) the matters involved, and

(c) the reasonableness of the charges made.

(7) A party must not submit the opinions of more than 2 lawyers under subrule (6).

(8) The registrar may require a lawyer giving an opinion under subrule (6) to attend an assessment for examination or cross-examination.

Assessment of fees, disbursements and expenses

72   (1) In addition to the costs assessed for a proceeding, the registrar must allow a reasonable amount for disbursements and expenses that were necessary or properly incurred in the conduct of the proceeding.

(2) If tax is payable by a party in respect of legal services, the tax must be included in the total of any assessed fees or disbursements.

Costs for preparation for activities that do not take place

73   The registrar may allow units set out in the ordinary costs tariff, up to the maximum number allowable, for the following:

(a) preparation of documents that are not ultimately used in a proceeding;

(b) preparation for an application, conference or hearing that does not ultimately take place or is adjourned.

Costs owing between multiple parties

74   (1) If a party is entitled to receive costs from and liable to pay costs to another party, the registrar may do one or more of the following:

(a) assess the costs each party is liable to pay;

(b) adjust the costs by way of reduction or set-off;

(c) delay the allowance of the costs that a party is entitled to receive until the party has paid or tendered the costs that the party is liable to pay.

(2) If the costs claimed by a party against a second party should be paid by a third party, the registrar may do one or more of the following:

(a) order that payment be made to the first party directly by the third party;

(b) order the second party to pay the costs to the first party and allow the second party to claim that payment as a disbursement against the third party;

(c) make any other order the registrar considers appropriate to reapportion costs between the parties.

Combining costs of multiple appeals

75   (1) The registrar may take action under subrule (2) if

(a) 2 or more appeals have, by order, been heard at the same time or one after another, and

(b) no order has been made to apportion costs of the appeals.

(2) In the circumstances referred to in subrule (1), the registrar may do one or more of the following in relation to the appeals:

(a) assess 2 or more bills of costs as a single bill of costs;

(b) allow an item in a bill of costs more than once;

(c) apportion the costs of an item in a bill of costs, or the entire bill of costs, between the appeals.

Division 2 — Offers to Settle Costs

Offers to settle costs

76   (1) Before the registrar makes an assessment of costs, a party may serve on another party, in Form 16, an offer to settle the amount of a bill of costs.

(2) At the conclusion of a hearing on the assessment of costs, a party may submit to the registrar an offer to settle that was served under subrule (1).

(3) The registrar may do one or more of the following if the registrar determines that an offer to settle should have been accepted:

(a) if the offer to settle was made by the party whose costs were assessed, allow twice the value of an item in the ordinary costs tariff, or of a fee, that relates to the assessment;

(b) if the offer to settle was rejected by the party whose costs were assessed,

(i) disallow to that party an item in the ordinary costs tariff, or a disbursement, that relates to the assessment, or

(ii) allow by way of set-off, to the party who made the offer to settle, an item in the ordinary costs tariff, or a disbursement, that relates to the assessment;

(c) fix an amount of costs that the registrar considers reasonable in the circumstances.

Division 3 — Certificates of Costs

Certificates of costs

77   For the purposes of section 46 (2) [powers of registrar in relation to costs] of the Act, the registrar must issue a certificate of costs in Form 17

(a) on the conclusion of an assessment of costs, or

(b) if the party liable to pay costs has consented to the assessed amount.

Division 4 — Costs Orders Against Lawyers

Costs orders against lawyers

78   (1) If a justice determines that a party's lawyer caused costs to be incurred without reasonable cause or to be wasted through delay, neglect or some other fault, the justice may do one or more of the following:

(a) disallow any fees and disbursements between the lawyer and the party;

(b) if fees or disbursements have been paid by the party to the lawyer, order the lawyer to repay all or part of them to the party;

(c) order the lawyer to indemnify the party for all or part of any costs that the party has been ordered to pay to another party;

(d) make any other order that the justice considers appropriate.

(2) If a justice makes an order under subrule (1), the justice may

(a) direct the registrar to conduct an inquiry and file a report with recommendations as to the amount of costs, or

(b) fix the costs, with or without reference to the ordinary costs tariff.

(3) A justice may not make an order under this rule against a lawyer unless the lawyer is present or has been given notice.

(4) A lawyer against whom an order has been made under this rule must promptly deliver a copy of the order to the party represented by the lawyer, whether or not the lawyer continues to represent the party.

Part 12 — General

Division 1 — Court Documents

Required form of documents

79   (1) In this rule, "court form" means a document that is required under these rules to be filed using a specified form.

(2) All documents filed in a court registry, or otherwise submitted to the court, must be

(a) in English, and

(b) if the document is in paper form, legibly printed or typewritten on durable white paper having dimensions of 21.5 cm by 28 cm.

(3) A court form must be

(a) prepared and filed using the specified form set out in Schedule 3, with variations as the circumstances or the proceedings require, and

(b) completed in accordance with any instructions included on the court form.

(4) Unless otherwise provided in another enactment, these rules or a court form,

(a) handwritten signatures are not required on documents filed in a court registry, or otherwise submitted to the court, and

(b) documents submitted for filing must contain the name of the person authorizing the filing of the document.

(5) The registrar may refuse to accept a document for filing if the document does not comply with these rules.

(6) A document that is received for filing electronically may be treated by the registrar for all purposes as an original document.

Parties must have address for service

80   (1) Each party must have at least one address for service that is one of the following:

(a) the office address in British Columbia of the party's lawyer of record;

(b) a residential address or business address in British Columbia, other than a post office box;

(c) if permitted by a justice or the registrar, a residential address or business address outside of British Columbia, other than a post office box;

(d) an email address.

(2) A party must include the party's address for service on the following that is filed on behalf of the party:

(a) a notice of appeal;

(b) a form under these rules that requires the address for service be included.

(3) A party who wishes to apply for permission under subrule (1) (c) to use a residential address or business address for service outside of British Columbia must submit a written request to the registrar.

Party may show service ineffective

81   (1) This rule applies to the following applications:

(a) an application to set aside the consequences of default;

(b) an application for an extension of time;

(c) an application in support of a request for an adjournment.

(2) Even though a document has been served in accordance with Rule 4, a person may show, on an application referred to in subrule (1), that

(a) the document did not come to the person's notice,

(b) the document did come to the person's notice, but later than when it was served or effectively served, or

(c) the document was incomplete or illegible.

Amending filed documents

82   (1) Subject to subrules (2), (3) and (4), a document that has been filed with the court may be amended by a person only with the permission of the court or a justice.

(2) An appellant may file and serve an amended notice of appeal without permission of the court or a justice as follows:

(a) an appellant who is not required to apply for leave to appeal may amend a notice of appeal before filing the appellant's factum;

(b) an appellant who is required to apply for leave to appeal may amend a notice of appeal before filing, as applicable,

(i) the related application book for leave to appeal, or

(ii) the related application book for leave to appeal and stay.

(3) A respondent may file and serve an amended notice of cross appeal without permission of the court or a justice as follows:

(a) a respondent who is not required to apply for leave to appeal may amend a notice of cross appeal before filing the respondent's cross appeal factum;

(b) a respondent who is required to apply for leave to appeal may amend a notice of cross appeal before filing, as applicable,

(i) the related application book for leave to appeal, or

(ii) the related application book for leave to appeal and stay.

(4) A party may, at least 4 weeks before the appeal hearing date, file and serve an amended factum without permission of the court or a justice if

(a) the party changes lawyers, or discharges a lawyer in order to act on the party's own behalf, and all the parties consent to the amended factum being filed, or

(b) the registrar permits the amended factum to be filed.

Registry hours and deemed filing

83   (1) Unless the registrar directs otherwise, each court registry must be kept open to the public between 9 a.m and 4 p.m. on each day other than a Saturday or a holiday.

(2) The registrar must provide reasonable notice to the public of a direction referred to in subrule (1).

(3) A document submitted for filing to a court registry and accepted for filing by the registrar is deemed to be filed as follows:

(a) if the document is submitted at or before 4 p.m. on a business day, the document is deemed to be filed on that day;

(b) if the document is submitted at either of the following times, the document is deemed to be filed on the next business day:

(i) after 4 p.m. on a business day;

(ii) any time on a day other than a business day.

(4) A document transmitted for filing electronically is deemed to be submitted when it is transmitted.

Division 2 — Court Fees

Payment of court fees

84   (1) In this rule, "table of fees" means

(a) the table of fees in Division 1 of Schedule 2, or

(b) if an amended table of fees is published by the Registrar of Regulations under Division 2 of Schedule 2, the most recently published amended table.

(2) For any matter described in column 1 of the table of fees, the fee set out opposite in column 2 must be paid to the government.

(3) The fees in the table of fees must be recalculated at the frequency set out in, and in accordance with, Division 2 of Schedule 2.

Order that no fees payable

85   (1) A person may apply for an order that no fees are payable under Rule 84 by filing a Form 22, which is to be considered an application if a hearing date is set under subrule (2).

(2) If the registrar determines that a hearing is required, the registrar may set a date for the hearing of the application.

(3) The hearing of an application under this rule is to proceed without notice.

(4) At the hearing of an application under this rule, a justice may order that no fees are payable if the justice finds that

(a) the appeal is not

(i) bound to fail,

(ii) scandalous, frivolous or vexatious, or

(iii) an abuse of the process of the court, and

(b) the person's payment of court fees under Rule 84 would cause undue hardship.

(5) A finding under subrule (4) (a) does not bind a justice in any other applications on the appeal.

(6) For the purposes of this rule, the registrar may identify financial circumstances in which the payment of court fees under Rule 84 would cause undue hardship.

Division 3 — Appointing and Changing Lawyers

Party appointing or changing lawyer

86   (1) A person who is not represented by a lawyer in an appeal may appoint a lawyer to act for the person by filing a notice of change of representation or change of address for service in Form 18.

(2) A person who is represented by a lawyer in an appeal may do either of the following by filing a notice of change of representation or change of address for service in Form 18:

(a) change to a different lawyer;

(b) discharge the lawyer and act on the person's own behalf.

Lawyer withdrawals

87   (1) A lawyer who ceases to act for a person may withdraw from an appeal by filing and serving a notice of withdrawal of lawyer in Form 19.

(2) A person who is served notice under subrule (1) may object to the withdrawal by filing and serving an objection in Form 20 not more than 7 days after being served.

(3) If an objection is filed under subrule (2), the lawyer who filed the notice may apply to a justice for a declaration that the lawyer has ceased to be lawyer of record for the person to whom the notice relates.

(4) An application referred to in subrule (3) must be served on the person who filed the objection under subrule (2).

When a lawyer is the lawyer of record

88   (1) A lawyer appointed by a person's notice of change of representation or change of address for service filed under Rule 86 is the person's lawyer of record.

(2) A lawyer ceases to be a person's lawyer of record when any of the following occurs:

(a) the person files a notice under Rule 86 (2) for the purposes of changing lawyers or discharging the lawyer;

(b) the lawyer files and serves a notice under Rule 87 (1) and no objection is made under Rule 87 (2);

(c) the court declares that the lawyer has ceased to be the person's lawyer of record.

(3) A person may serve documents on a lawyer as another person's lawyer of record until that lawyer ceases to be the other person's lawyer of record under subrule (2).

Division 4 — Practice Directives

Practice directives

89   The court may issue practice directives to regulate and control its procedure.

Part 13 — Transition

Definitions

90   In this Part:

"effective date" means the date that this rule comes into force;

"former rules" means the Court of Appeal Rules, B.C. Reg. 297/2001, as they read immediately before the effective date;

"pre-existing appeal" means either of the following:

(a) an appeal that was commenced before the effective date;

(b) an appeal that relates to a pre-existing application for leave to appeal;

"pre-existing application for leave to appeal" means an application for leave to appeal that was commenced before the effective date;

"pre-existing cross appeal" means a cross appeal that was commenced before the effective date.

Application of rules to pre-existing appeals and applications for leave to appeal

91   (1) Except as otherwise provided in this Part, these rules apply to

(a) a pre-existing appeal, or

(b) a pre-existing application for leave to appeal.

(2) The following rules do not apply to a pre-existing appeal or pre-existing application for leave to appeal:

(a) Rule 11 (a) (i) and (x) and (b) (i) and (v) [limited appeal orders];

(b) Rule 29 (5) [factums on cross appeal];

(c) Rule 69 [assessment of ordinary costs].

Bringing cross appeals in relation to pre-existing applications for leave to appeal

92   A respondent who has been served a pre-existing application for leave to appeal may bring a cross appeal by complying with Rule 8 and, for that purpose, a reference in Rule 8 to "notice of appeal" must be read as though it were a reference to "pre-existing application for leave to appeal".

Ordinary costs in relation to pre-existing appeals

93   Ordinary costs in relation to a pre-existing appeal must be assessed in accordance with Appendix B of the former rules.

Page limits for cross appeal factums and replies

94   Documents filed under Rule 29 [factums on cross appeal] in relation to a pre-existing cross appeal must be prepared in accordance with the completion instructions and as follows:

(a) a respondent's cross appeal factum must not exceed 40 pages;

(b) an appellant's cross appeal response factum must not exceed 30 pages;

(c) an appellant's reply must not exceed 5 pages;

(d) a respondent's cross appeal reply must not exceed 5 pages.

Schedule 1

Ordinary Costs Tariff

ItemColumn 1
Description
Column 2
Units
1Advising appellant or respondent on bringing appeal, application for leave to appeal or cross appealMinimum 5
Maximum 20
2Preparation of appeal record2
3Preparation of appeal book(s), one of the following:
(a)   1–5 volumes;5
(b)   6–10 volumes;7
(c)   11 or more volumes10
4Preparation of application book including written argument5
5Preparation of factumMinimum 10
Maximum 50
6Preparation of written argument if specifically ordered by the court or a justice or directed by the registrar5
7Preparation of any application before the court, a justice or the registrar, except where otherwise provided5
8Attendance at any application before the court, a justice or registrar, except where otherwise provided5
9Preparation for hearing of appeal, per half dayMinimum 10
Maximum 30
10Attendance at hearing of appeal, per half day10
11Preparation of bill of costs, except if settled by the registrar2
12Preparation and entry of each order, including each application to settle an order before the registrar2

Schedule 2

Court Fees

Division 1 — Fee Table

ItemColumn 1
Description
Column 2
Fee ($)
1For filing a notice of appeal200
2For filing an application to be heard by a justice excluding an application for leave to appeal, but including an application to review the decision of a justice denying an application for an order that no fees are payable80
3For filing an application to be heard by 3 or more justices if the application is not returnable to the hearing of the appeal, including an application to review the decision of a justice denying an application for an order that no fees are payable80
4For filing a notice of hearing of appeal200
5For each half day spent in whole or in part on the hearing of an appeal, excluding the first half day, unless the hearing is for judgment only, payable by the party who files the notice of hearing, unless the court orders payment by another party250
6For filing any application for a hearing before a registrar80
7For taking or swearing an affidavit for use in the court unless
(a)   the deponent swears the affidavit in the course of the deponent's duties as a peace officer or as an agent or officer of the Province,
(b)   the affidavit is sworn for the purpose of enforcing a maintenance or support order, or
(c)   provision is made elsewhere for a fee for that service
40
8For a search of a record, other than
(a)   an electronic search conducted from outside the registry, or
(b)   a search of a record of a proceeding by
        (i)   a party to that proceeding,
       (ii)   a party's lawyer, or
      (iii)   an official reporter who, or a representative of a transcription firm that, is retained by a party to produce a transcript of the proceeding
8
9For returning by mail, fax or email the results of a search of a record10
10For accessing from outside the registry, including, without limitation, viewing, printing or downloading, any record that is found by or created in response to an electronic search or request, including, without limitation, an index of cases produced in response to a search query6
11For accessing any document referred to in item 10 and purchasing that document10
12For copies, per page1
13For
(a)   a certified copy of a document or record,
(b)   issuing a certificate of judgment, or
(c)   issuing a certificate of pending litigation or other certificate not otherwise provided for
40
14For returning by mail or by fax a confirmation of filing or rejection of a document submitted by fax to a registry.10

Division 2 — Fee Table Recalculations

Recalculating court fees

1   (1) In this Schedule:

"base CPI" means the number recorded as the "All-items Index" for British Columbia in the publication prepared for April 2010 under the Statistics Act by the director;

"base fee", in relation to an item in the table of fees, means the amount set out in column 2 of the item;

"current CPI", in relation to any year in which fees are recalculated under subsection (2), means the number recorded as the "All-items Index" for British Columbia for April of that year in the publication prepared for that year under the Statistics Act by the director;

"director" has the same meaning as in the Statistics Act;

"table of fees" means the table in Division 1 of this Schedule.

(2) In 2022, and in every second year after 2022, the chief administrator of court services must recalculate, or cause to be recalculated, each fee in column 2 of each item in the table of fees as follows:

(a) first, a preliminary fee for each item must be determined in accordance with the following formula:

(b) then, a recalculated fee for each item must be determined in accordance with the following:

(i) if the base fee for the item is $10 or less, the recalculated fee for the item is the preliminary fee for the item rounded to the nearest $1;

(ii) if the base fee for the item is more than $10 and less than $100, the recalculated fee for the item is the preliminary fee for the item rounded to the nearest $5;

(iii) if the base fee for the item is $100 or more, the recalculated fee for the item is the preliminary fee for the item rounded to the nearest $10.

(3) If the amount of a recalculated fee for an item under subsection (2) (b) is different from the fee for the item in the table of fees,

(a) the minister may notify the Registrar of Regulations of the different amount, and

preliminary fee = base fee ×current CPI
base CPI

(b) the Registrar of Regulations may

(i) amend the table of fees to substitute the different amount, and

(ii) publish the amended table in Part II of the British Columbia Gazette.

(4) An amendment to the table of fees made under subsection (3) comes into effect 7 days after the amended table is published under that subsection.

Schedule 3

Court Forms

[Provisions relevant to the enactment of this regulation: Court Rules Act, R.S.B.C. 1996, c. 80, s. 1 and the Court of Appeal Act, S.B.C. 2021, s. 51.]