Frivolous or Vexatious Appeals May Be Dismissed Summarily in BC

Henderson & Lee Law Corporation is pleased to highlight an important British Columbia Court of Appeal decision: Yang v. Shi, 2022 BCCA 317. This is one of a few decisions that helped to define and clarify appeal procedures which Mr. Chen Shen obtained, representing the respondent in defending against a vexatious litigation.

In this case, the respondent asked the Court to provide guidance on a summary determination procedure that was newly introduced under section 21 of the Court of Appeal Act of British Columbia.

The Court explained that section 21 creates a distinct “court-driven” mechanism allowing a justice or registrar to refer an appeal to the Court for summary determination where the appeal appears frivolous, vexatious, or otherwise suitable for dismissal on a summary basis.

Importantly, the Court distinguished this new process from a traditional motion brought by a party under rule 60 the Court of Appeal Rules to quash an appeal. According to the Court, section 21 is intended to operate on the Court’s own initiative and where the defect in the appeal is readily apparent without extensive factual or legal analysis. In contrast, rule 60 applications remain available where evidence and substantive argument are required.

The case demonstrates that even though summary dismissal is available, it remains reserved for only the most obvious and clear cases and does not apply more broadly to every weak appeal. The distinction between court-driven procedures and party-driven applications remains important, with the vast majority of cases requiring a party to show the court why they should succeed. Strategic analysis and advocacy remain critical in appeal litigation.

The Court ultimately declined to invoke section 21 for this case because substantive argument and analysis were still necessary to determine whether the appeal should be allowed to succeed, the court directed that the appellant take the necessary steps to seek leave as this was a case where leave was required.

This decision is significant because it provides one of the earliest and clearest judicial interpretations of section 21 since the enactment of British Columbia’s new Court of Appeal Act.

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Henderson & Lee Law Corporation assists clients throughout British Columbia with appellate advocacy, procedural motions, judicial reviews, vexatious litigant proceedings, and complex civil litigation strategy.

Disclaimer: This article is for general information only and does not constitute legal advice. If you are involved in an appeal or are responding to appeal proceedings, you should seek professional legal advice based on your specific circumstances.