When Does the New Costs Tariff Apply to Appeals?

Yang v. Shi, 2023 BCCA 239: When an Appeal Is Properly Commenced

Henderson & Lee Law Corporation continues to share developments under the new Court of Appeal rules. In Yang v. Shi, 2023 BCCA 239, the Court considered when the new costs tariff applies. Chen Shen represented the respondent.

A Transitional Costs Issue

In this costs assessment, the Registrar of the Court of Appeal addressed a transitional issue arising from the implementation of the new Court of Appeal Act and Court of Appeal Rules. Specifically, the Court considered whether costs should be assessed under the former tariff or the new tariff. In deciding that issue, the Court clarified what counts as the commencement of an appeal.

The appellant had filed a notice of appeal on October 18, 2019, before the new Act and Rules came into force on July 18, 2022. However, the matter required leave to appeal, and the appellant did not seek leave until September 2022.

When Is an Appeal Properly Commenced?

The Court confirmed that an appeal is not always properly commenced merely because a notice of appeal has been filed. Other legal requirements may have to be met before a proceeding is considered an appeal. Where leave is required, an application for leave to appeal does not become an appeal until leave is granted and the appeal is brought.

In this case, the notice of appeal did not properly commence the appeal because leave was required. Leave was ultimately never granted.

Why the New Tariff Applied

Rule 93 preserved the former tariff for a pre-existing appeal. Because there was no properly commenced appeal before July 18, 2022, the proceeding did not qualify as a pre-existing appeal. The Registrar agreed with Mr. Shen's analysis and held that the new tariff applied.

The respondent therefore received the benefit of the new tariff. The Registrar signed a certificate of costs in the amount of $5,174.40.

Practical Importance

The case highlights the importance of confirming whether leave is required before proceeding with an appeal. It also shows why legislation, procedural rules, and transitional provisions must be read together to understand the full effect of a rule or law.

Henderson & Lee Law Corporation continues to assist clients throughout British Columbia with appellate litigation, leave applications, judicial reviews, procedural strategy, and complex civil disputes before all levels of court.

This article is provided for general information only and does not constitute legal advice. Past results do not guarantee future outcomes.