The procedural landscape governing appellate practice in the province is established by the Court of Appeal Act and the Court of Appeal Rules. Under this formal structure, an applicant initiates the leave process by preparing and filing a Notice of Appeal using Form 1, accompanied by a Notice of Application for Leave to Appeal using Form 4. Time sensitivity is paramount in appellate work, as these initiating materials must generally be filed and served within thirty days from the date the lower court judgment or order was formally pronounced. However, before or immediately following the filing of these foundational documents, an applicant has the opportunity to initiate direct communication with the respondent or their legal counsel. Communicating early and in writing regarding whether the leave application will be contested constitutes the fundamental first step in establishing an uncontested proceeding.
When contacting opposing counsel or an unrepresented respondent, the applicant should clearly set out the nature of the order being appealed and provide draft copies of the proposed leave materials whenever feasible. The correspondence should formally invite the respondent to specify their procedural position from among three standard options. First, the respondent may explicitly consent to the relief sought, indicating that they agree leave to appeal should be granted. Second, the respondent may elect to take no position, meaning they do not affirmatively support the application but will not expend time or financial resources to oppose it or attend a court hearing. Third, the respondent may indicate an intention to oppose the application, which necessitates a fully contested hearing before a chambers judge. Securing a clear written statement of position early allows the applicant to determine whether the matter can proceed through a streamlined consent process or an uncontested desk order application.
If the respondent agrees to consent to the application, the primary method for formalizing this agreement is through a draft consent order. Under appellate practice, parties may execute a Consent Order using Form 18, which concisely sets forth the terms agreed upon by the participants. This document must be formally signed by all participating parties or their legal representatives and subsequently submitted to the court registry for review. It is critical for litigants to recognize that private agreement between parties does not automatically guarantee that leave will be granted. The Court of Appeal maintains an overarching obligation to manage its own jurisdiction and ensure that appellate review is restricted to appropriate matters. Consequently, a chambers judge must review the submitted consent materials to confirm that the court possesses statutory authority to hear the appeal and that the proposed grounds satisfy established legal principles, such as whether the appeal raises a question of law of general public importance or whether the underlying order would cause substantial injustice if left unreviewed.
In scenarios where the respondent does not actively consent but chooses not to participate in the proceedings, appellate procedure offers a path toward an uncontested resolution through default mechanism rules. Once served with the Notice of Appeal and Notice of Application for Leave to Appeal, the respondent is required by Rule 14 to file and serve a Notice of Appearance using Form 2 within ten days. If the respondent fails to file this mandatory document within the prescribed timeframe, the court presumes that the respondent takes no position on the application. Under these circumstances, the applicant is entitled to move forward without further notice to the non responding party, proceeding on the basis that the application is uncontested due to non appearance.
Regardless of whether an application becomes uncontested through formal consent or through respondent default, the applicant must still construct and file a complete Leave Application Book. This bound or electronic volume contains essential court filings, including the originating pleadings, the order under review, the written reasons for judgment from the lower tribunal, and a concise written argument. Even in the absence of active opposition, the written argument must convincingly address the core factors evaluated by appellate judges, demonstrating that the proposed appeal has arguable legal merit, that the issues are sufficiently serious, and that there has been no undue delay in bringing the application forward. Including written evidence of the respondent consent or an affidavit confirming proper service and the absence of a Notice of Appearance ensures the registry and the reviewing justice can evaluate the application smoothly.
In summary, requesting and securing an uncontested leave to appeal in the Court of Appeal for British Columbia relies on prompt written communication, diligent compliance with statutory deadlines, and complete preparation of court forms. By determining early whether an opposing party consents or takes no position, an applicant can avoid unnecessary oral hearings, reduce friction, and move the dispute efficiently toward a final resolution.
Re: Request for Position Regarding Application for Leave to Appeal
Court File No.: [Insert Lower Court / Registry Number]
Style of Cause: [Insert Case Name, e.g., Smith v. Jones]
Dear [Opposing Counsel Name / Respondent Name],
I am writing regarding the recent order pronounced by [Name of Judge / Tribunal] on [Date Order Was Pronounced] in the above noted matter.
As indicated in the attached draft materials, I am preparing to file a Notice of Application for Leave to Appeal to the Court of Appeal for British Columbia.
Before finalizing our hearing materials and scheduling, I am writing to formally request your client's position regarding this application. Please advise in writing by [Date, e.g., 5 business days from today] whether your client:
Consents to the application for leave to appeal being granted;
Takes no position and will not oppose the application; or
Opposes the application and intends to file responsive materials.
If your client consents or takes no position, please let me know if you would be willing to execute a draft Consent Order (Form 18) to submit to the Court Registry, which would avoid the necessity of an oral chambers appearance for both parties.
Thank you for your attention to this matter. I look forward to hearing from you.
Yours truly,
[Your Name]
[Your Address / Contact Information]