Yang v. Shi, 2022 BCCA 317 ' Summary Determinations At The Court Of Appeal

• Published date: 21 September 2022
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Trials & Appeals & Compensation, Wills/ Intestacy/ Estate Planning
• Law Firm: Clark Wilson LLP
• Author: Ms Polly Storey

On July 18, 2022, new legislation and rules came into force governing appeals before the Court of Appeal for British Columbia.¹ In the recent decision of Yang v. Shi, 2022 BCCA 317 (Chambers), Justice Willcock provided some initial guidance to litigants and counsel regarding how the Court's new summary determination process may be applied.

Summary Appellate Procedures

As part of the new regime, a summary determination process has been introduced under s. 21 of the Court of Appeal Act. The new regime allows a justice or registrar to refer an appeal to a division of the Court for summary determination if the justice or registrar considers that the appeal:

1. is frivolous or vexatious; or
2. can otherwise be dismissed on a summary basis.

If an appeal is referred on these grounds, then the appellant must have an opportunity to make written submissions or otherwise be heard. The Court can then dismiss the appeal summarily, if satisfied that one of the two requirements is met.

The new referral process for summary determination exists alongside a process by which an application may be made to "quash" an appeal, pursuant to Rule 60(1)(c) of the Court of Appeal Rules.² This Rule allows a party to an appeal to apply to quash an appeal "that is so devoid of merit or substance as to constitute an abuse of the Court's own procedure".³

Yang v. Shi

Yang v. Shi was an appeal brought by a self-represented litigant. The Order under appeal was made in 2019, by which the judge had:

1. adjourned a hearing to permit the respondent time to reply to late-filed materials submitted by the appellant; and
2. ordered the appellant to pay costs thrown away in the amount of $1,000.

As three years had passed since the Order was made, the only real issue was the payment of costs. The appellant said that she, as the payor, should have been entitled to an opportunity to test the reasonableness of the fees of the costs ordered. She also argued that the discretion to fix costs must be exercised sparingly, and contended that the amount of costs must not be fixed on a "rough and ready basis".

Having read Ms. Yang's factum, Justice Willcock described the chronology as "remarkable" (para. 4) and observed that, "[t]he subject matter of this appeal may properly be characterized as trivial" (para. 9).

Request for Summary Determination

The respondent filed a request under s. 21 of the Court of Appeal Act. The request gave Justice Willcock an opportunity to comment on the procedure to be followed and how s...