Small Claims Appeals (20:XVI)

Any party to a proceeding may appeal to the Supreme Court an order to allow or dismiss a claim if the judge made the order after a trial (SCA, s 5). An appeal must be started within 40 days, beginning on the day after the order of the Provincial Court is made (SCA, s 6). A review of the order under appeal may be on questions of fact or law (SCA, s 12(a)). A mistake of fact could involve a misunderstanding by the Judge of evidence given by a witness. For example, if a witness reported that a particular event happened and in the decision the Judge bases his/her decision on the fact that event didn’t happen, there could be a basis for an appeal. A mistake of law occurs where the Judge makes an error in deciding which law should apply. Not every error made by a Small Claims Court judge will be the basis for a successful appeal. The test which the Supreme Court Judge must apply is called the “clearly wrong test”. If the Small Claims Court judge’s decision about the facts or the law is not clearly wrong, the appeal will fail. An appeal is usually not a new trial; it will be based on the transcripts of the trial in Small Claims Court. The Supreme Court may, however, exercise its discretion to hear the appeal as a new trial (SCA, s 12(b)). No new evidence may be adduced at the appeal without leave of the court. (See Practice Direction: Standard Directions for Appeals from Provincial Court - Small Claims Act SCA, s 10).

For claims that do not fit the criteria for an appeal, the Judicial Review Procedure Act allows the Supreme Court of British Columbia to review decisions made by Provincial Court judges prior to trial. This includes interlocutory orders, the dismissal of a claim at a settlement conference, and adjudicator decisions in Simplified Trials under Rule 9.1. The appropriate standard of review for orders subject to judicial review is reasonableness. (See "0763486 BCLtd. v Landmark Realty Corp, 2009 BCSC 810 (CanLII); Wood and Lauder v Siwak, 2000 BCSC 397 (CanLII); Der v Giles, [2003] BCJ No 938; and Nicholson v Lum, [1996] BCJ No 860). For further information on judicial review, refer to the “ Public Complaint Procedures chapter of the LSLAP manual.

If an order dismissing a claim is appealed to the Supreme Court, that appeal does not automatically appeal the counterclaim to the Supreme Court, nor vice versa. Each appeal is a separate matter and needs to be filed separately in the Supreme Court. Both appeals will, of course, be heard together. (See Shaughnessy v Roth, 2006 BCSC 531 (CanLII)).

A. Filing an Appeal

You must act quickly if you wish to appeal a decision as there are many steps involved and only a short a period of time. Within 40 days of the order being made (SCA, s 6), an appellant must, in one day, do all of the following:

• file a Notice of Appeal in the Supreme Court registry closest to the Provincial Court where the order being appealed was made (SCA, s 7);
• deposit with the Supreme Court $200.00 as security for costs plus the amount of money required to be paid by the order under appeal (SCA, s 8(1) and (2)) or apply to the Supreme Court to reduce the amount required to be paid (SCA, s 8(3));
• apply to the registrar of the Supreme Court for a date for hearing the appeal that is at least 21 days, but not more than 6 months, after the filing date (SCA, s 10);
• file a copy of the Notice of Appeal in the Provincial Court registry where the order under appeal was made (SCA, s 7(b)).

An application to reduce the amount required to be deposited does not need to be served on any person; however, if the court reduces the amount required to be deposited, the appellant must serve notice of this order on the other parties to the appeal (SCA, s 8(6)).

The cost to file a Notice of Appeal in Supreme Court is $200.00 and the cost for filing an application to reduce the amount of the deposit is $80.00. An appellant who cannot afford these fees can apply to the Supreme Court registrar for indigent status.

A copy of both the Notice of Appeal and the Notice of Hearing must be served on every party affected by the appeal (SCA, s 11(1)). Fourteen days after filing the Notice of Appeal, the appellant must provide the Registrar with proof that the Notice of Appeal and the Notice of Hearing have been served on the respondents.

The Appellant must also order transcripts of the oral evidence given at the Small Claims Court trial and the Judge's reasons for judgment. The Appellant must pay for a copy of the transcript for the Court and one for each party to the appeal. Transcripts cost several dollars per page. So, depending on how long the trial lasted, the transcript could be many, many pages and cost hundreds and even thousands of dollars.

For a detailed checklist of the steps you must take to make an appeal, please see Appendix N.

B. The Decision of the Supreme Court

On hearing an appeal, the Supreme Court may make any order that could be made by the Provincial Court, impose reasonable terms and conditions on an order, make any additional order it considers just, and award costs to any party under the Supreme Court Civil Rules. (See BC Reg 168/2009 and amendments thereto).

There is no further appeal from a Supreme Court order (SCA, s 7).