Saturday, 2 June 2012

Major Change to Court of Appeal Practice: No More Interlocutory Orders and "Order Approach"

In one quiet and not so fell swoop, as part of the ongoing "justice reform", the BC Legislature and AG Shirley Bond dealt a deadly blow to the complex and cumbersome process for determining what Supreme Court orders require leave to appeal.  Apparently at the request of the Court of Appeal, the concept of "interlocutory orders" has been repealed and replaced with "limited appeal orders".  Only these orders, made on applications specifically listed in the amended Court of Appeal Rules - Rule 2.1, now require leave to appeal.  The Court of Appeal will be able "to add to the list if it identifies other categories of application that it believes will consistently be denied leave to appeal."

The question of what is an "interlocutory order" requiring leave to appeal under s. 7 of the Court Appeal Act has vexed counsel for many years.  In Forest Glen, the court prescribed the "order approach", which focused on the effect of an order rather than the application under which it was sought.  Only orders that "dispose of the rights of the parties" did not require leave.  However, this approach, although conceptually reasonable, practically only muddied the waters.

Counsel were generally forced to rely on a slowly growing list of precedents categorizing orders, or, when in doubt, follow a Practice Directive and simultaneously file a Notice of Appeal, a Notice of Application for Leave to Appeal, and a Notice of Motion "seeking directions, leave to appeal, and any extension of time".  In Chambers, judges faced with such motions often refused to provide directions and simply presumed that leave was required and granted it.  Needless to say, this resulted in a lot of unnecessary arguments, expense, and wasted time and judicial resources.
Enter the BC government's ongoing "justice reform".  On May 14, 2012, Bill 33 - Justice Statutes Amendment Act, 2012, received Royal Assent.  Section 2 of the Bill, which was brought into force by OIC 359 on May 31, 2012, repealed old s. 7 of the Court of Appeal Act and replaced it with the following:

7  (1) In this section, "limited appeal order" means an order prescribed under the rules as a limited appeal order.
(2) Despite section 6 (1) of this Act, an appeal does not lie to the court from a limited appeal order without leave being granted by a justice.
(3) In an order granting leave to appeal under this or any other Act, a justice may limit the grounds of appeal.
At the second reading of the Bill, Ms. Bond explained that the amendment was being made at the request of the Court of Appeal:
At the request of the Court of Appeal, we are proposing to amend section 7 of the Court of Appeal Act to replace the current list of orders, which may not be appealed, with the power to prescribe such a list by regulation. This will codify the common-law test that is currently applied.  The amendment will not eliminate any existing right of appeal, and that's a very important factor. That is, it will not eliminate any existing right of appeal that is currently likely to be successful. In fact, clarifying the limitations on the right to appeal should actually increase access to justice, as it will clarify for self-represented litigants when they have the right to appeal. 
Interestingly, at the time that Bill 33 was debated on April 24, 2012, the Legislature was not advised what orders would be considered "limited appeal orders", leaving that to the Court of Appeal to decide:
L. Krog: If the Attorney General could just explain in a practical way and perhaps give an example of what the effect will be of section 2 in terms of practice. ... Again to the Attorney General, I just would ask her to provide a basic example of what kind of order this new section would apply to. What's really the purpose of the section, and will it in fact assist the court in perhaps speeding up justice?
Hon. S. Bond: The amendment has actually been requested by the Court of Appeal, and they have not given us a list. What it does, though, is give the court the flexibility to add to the list if it identifies other categories of application that it believes will consistently be denied leave to appeal. We obviously think this is a good idea. The Court of Appeal has advised us that it intends that the list will represent a codification of orders that have consistently been denied previously. So it's an attempt to speed up access to justice and probably cause less frustration for people who go all the way through that process only to be denied leave to appeal.
K. Corrigan: The previous section that's been repealed and now substituted refers to interlocutory orders. Are interlocutory orders the same as limited appeal orders?
Hon. S. Bond: It's our understanding that, in fact, interlocutory orders could be included on the list that the Court of Appeal will actually codify.
K. Corrigan: Just for clarification, interlocutory orders are usually interim orders. Could the minister just explain what other types of orders would be considered to be limited appeal orders?
Hon. S. Bond: The Court of Appeal will actually make that determination, and we don't have the specific list that the court wishes to prescribe. But they will have the flexibility to prescribe the list. In fact, we have been advised by the court that it would be a codification of previous orders. I don't have the specific list of the Court of Appeals here, but this, as I said, is a request directly from the court to potentially speed up access to justice.
It appears that, between April 24 and May 31, the Court of Appeal did come up up with a list of orders that it wanted to deem as "limited appeal orders".   On May 31, by OIC 355, the AG amended the Court of Appeal Rules by enacting Rule 2.1, defining the following "limited appeal orders" that require leave:
2.1 The following orders are prescribed as limited appeal orders for the purposes of section 7 of the Act:
(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) Part 5 [Case Planning];
(ii) Part 7 [Procedures for Ascertaining Facts], other than Rule 7-7 (6) [application for order on admissions];
(iii) Rule 9-7 (II), (12), (17) or (18) [adjournment or dismissal, preliminary orders, orders and right to vary or set aside order];
(iv) Part 10 [Property and Injunctions];
(v) Part 11 [Experts];
(vi) Rule 12-2 [trial management conference];
(vii) Rule 21-7 [foreclosure and cancellation];
(b) - (d) [Family Orders] 
(e) an order granting or refusing an adjournment or an extension or a shortening of time;
(f) an order granting or refusing costs, or granting or refusing security for costs, if the only matter being appealed is that grant or refusal.
As the announcement on the BCCA website noted on June 1, 2012:
When considering an appeal, you should examine the list of “limited appeal orders” in Rule 2.1 of the Court of Appeal Rules to determine if leave to appeal is required.
I note that the the announcement did not mention that the amendments were made at the court's request, that the court may change this list, nor confirmed whether the Practice Directive mentioned above is now moot.