What is an appeal?
If you have been to Small Claims Court but do not agree with the judge’s decision, you may want to appeal it. You can only appeal a decision from the Provincial Court if it is an order made after a trial. An appeal takes place in the Supreme Court of British Columbia.
An appeal is not a re-trial but a review of the original trial using its transcripts and your Statement of Argument. No new evidence may be presented without leave of the court.
Appeals from an order of the Small Claims Court are governed by sections 5 to 15 of the Small Claims Act, Supreme Court Rule 18-3 and the standard set of directions for Small Claims Court appeals issued by the Chief Justice.
What happens at the hearing?
The hearing is a review of the original trial and you must be prepared to explain why you feel the Small Claims Court judge erred in interpreting the facts entered as evidence or applying the law to your case. This is done using the transcript and your Statement of Argument.
If you are successful in your appeal, the Supreme Court justice may allow you to recover your costs as part of the judgment. If these costs exceed the $200 you previously paid as a deposit (see the required fees and deposits below), you will be required to meet with the Registrar to have these costs assessed.
If the respondent does not pay the judgment, you must prepare the Supreme Court order and file it with the registry for entry. After the order is entered, you may file a copy in your Small Claims Court file at the Provincial Court for enforcement.
If your appeal is unsuccessful, you cannot appeal an order made by the Supreme Court.
What happens to the enforcement of the original Small Claims order while I am appealing?
Any proceedings to enforce the order in Small Claims Court are suspended until the appeal is dealt with, but you first must provide proof that you have started the appeal process.
Do I need a lawyer to make an appeal?
No, but it is recommended that you get legal advice if you are thinking about appealing. Supreme Court is formal and complex; and litigants are expected to be aware of the law and of court procedures. Litigation in Supreme Court is costly. Further costs may be awarded against the unsuccessful party, as described in Appendix B of the Rules of Court. These costs can be considerable.
How do I file an appeal?
You will need to:
- Complete the Notice of Appeal and file it in the Supreme Court registry nearest to the Small Claims Court where the decision was made.
- File the Notice of Appeal within 40 days from the date the decision was made in Small Claims Court.
Pay the required fees and deposits to the court which include:
- $200 to initiate a Supreme Court proceeding, plus
- A $200 deposit as security for costs that the court may order you to pay if you lose or discontinue the appeal. Note that there may be additional costs awarded against you if you lose or discontinue the appeal. Refer to Rule 14 and Appendix B of the Supreme Court Rules
- The amount of the judgment ordered by the Small Claims Court if the order being appealed required you to pay a sum of money.
If you are unable to deposit the security for costs or the amount of judgment, you may apply to the Supreme Court for an order to reduce these amounts. If you are unable to pay the filing fee or any fees payable to the Crown pertaining to the appeal, you may apply to the court for an indigent status order. Request the appropriate form from the Supreme Court Registry. Note that indigent status does not cover the cost of transcripts as these fees are payable to private contractors.
On the day you file your Notice of Appeal you must file a copy of that document in the Small Claims Court registry.
What notices do I have to serve? When? How?
You must serve the following:
Any order reducing the amount of security for costs or the amount of judgment as stated above must be served personally on each party affected by the appeal.
Service must be made within seven days after filing the Notice of Appeal. Refer to Supreme Court Rule 4 for the process for serving a document. You can use the Serving Documents Checklist to ensure you serve your documents correctly.
You may serve these documents yourself or have someone else do so for you (for a list of process servers refer to the Yellow Pages under “Process Servers”).
After serving the documents, an affidavit of service providing proof of service of the above stated documents must be filed in the Supreme Court registry within 14 days of the appeal being filed.
How do I order transcripts?
You must order and pay for the entire transcript of the evidence and the reasons for judgment given at your Small Claims trial. Registry staff in the Small Claims Court can provide information about ordering the transcript and the transcription contractor will advise about the cost.
You must provide proof that you ordered the transcript within 14 days of filing your appeal. This proof should be filed in the Supreme Court registry.
How do I set a hearing date?
At the same time that you file proof of service of the Notice of Appeal and proof of ordering the transcript, you must file a Notice of Hearing of Appeal in Form 75 of the Supreme Court Rules.
If your time estimate for the appeal is less than 2 hours, the Notice of Hearing of Appeal may be scheduled on the Chambers list and the filing fee will be $80. If your time estimate is more than 2 hours you must arrange for a date through the Supreme Court trial coordinator and file the Notice of Hearing of Appeal and your filing fee of $80. Check with your local registry to confirm these details and follow what they tell you.
Deliver a copy of the Notice of Hearing of Appeal to all respondents who have entered an appearance within seven days of filing that notice.
When do I need to file my Statement of Argument and the transcripts?
Use Schedule “A” which is attached to the Standard Directions for your Statement of Argument and serve one copy on each respondent within 45 days of filing the Notice of Appeal.
Within 45 days after filing the Notice of Appeal you must file the original transcript and serve one copy on each respondent.
To learn more, read the Justice Education Society’s Supreme Court Guidebook titled Appealing Small Claims Court Judgments.