Ontario Court Of Appeal Updates Framework For Leave To Appeal From Divisional Court Decisions

Key takeaways

• In Knauff v. Ontario (Human Rights Tribunal),¹ a five-judge panel of the Ontario Court of Appeal established an updated framework for granting leave to appeal from decisions of the Divisional Court.
• The updated framework has two parts: whether the proposed appeal raises an arguable question of law or mixed fact and law; and whether the arguable issue is of sufficient public importance to warrant consideration by the Court of Appeal.
• The same test applies regardless of whether the underlying decision involved the Divisional Court exercising original or appellate jurisdiction.

For over fifty years, Re Sault Dock Co. Ltd. and City of Sault Ste. Marie² governed the framework for leave to appeal to the Court of Appeal of Ontario from the Divisional Court. Under Sault Dock, the paramount consideration was the impact of the proposed appeal on the development of the jurisprudence of Ontario. For leave to appeal, there must have been an arguable question of law or mixed law and fact requiring consideration of the Court of Appeal, and Sault Dock provided a non-exhaustive list of examples of cases that might merit leave.

In 2024, a panel of the Court of Appeal in West Whitby Landowners Group Inc. v. Elexicon Energy Inc.³ expressed concern that parties were treating the Sault Dock examples as a rigid checklist, rather than the non-exhaustive illustration they were intended to be. The West Whitby court proposed a re-articulated “lens”, modelled on the Supreme Court of Canada’s leave test, asking

Is the question on which leave is sought one that, by reason of its public importance, the importance of any issue of law or mixed law and fact involved, or for any other reason is of such a nature or significance that it ought to be decided by the Court of Appeal for Ontario?

Shortly thereafter, a different panel of the Court of Appeal in Davis v. Aviva General Insurance Company⁴ stated that Sault Dock continued to govern absent a decision of a five-judge panel, and that West Whitby should be viewed as a “helpful discussion and application” of the existing framework rather than a change to it.

The resulting uncertainty between the West Whitby and Davis decisions prompted the convening of the five-judge panel in Knauff.

The updated framework

Writing for the unanimous panel, Justice Zarnett concluded that the overarching message of Sault Dock should be maintained, but that an updated framework was warranted. In substance, the new framework is largely a repackaging of Sault Dock, but it is clearer and modernized.

The updated framework has two parts, which raise separate but overlapping concepts:

• Arguability: The first part asks whether the proposed appeal raises a “real, arguable question of law or mixed law and fact to be debated between the parties arising in the circumstances of the case”. It does not require a determination that the appeal will necessarily succeed or produce a different outcome, but there must be a real issue for appeal that can then be assessed for its public importance.

A question may be arguable where the law or its underlying principles should be “reconsidered, expanded, qualified, clarified or changed”. For example, constitutional questions may be arguable in this sense even where the Divisional Court has correctly identified and applied the existing law. Likewise, a question may be arguable where the legal rule applied by the Divisional Court is out of step with developments in that area of law.

• Public importance: If there is an arguable question, the second part asks whether that issue is of sufficient public importance to warrant consideration by the Court of Appeal.
  
  The Court assesses public importance from two perspectives:
  • first, who would be affected by a disposition of the question and how they would be affected — the broader the category of persons affected, and the more fundamental the interests affected, the more likely the issue is to have public importance
  • second, how the law of Ontario would be affected, namely, whether the question goes to the development, progress, coherence, stability and predictability of Ontario law

The Court recognized that these two perspectives of public importance will often overlap, and there is no finite or closed category of questions that can qualify as questions of public importance.

Although this framework retains the essence of Sault Dock, it departs from that precedent in certain ways. Significantly, Sault Dock provided that leave might be warranted in cases involving “special circumstances” or because of the “severity and effect” of an alleged error. In Knauff, the Court held that these considerations no longer require separate categories or steps. Rather, they should be considered within the public importance analysis.

No distinction between applications arising from original or appellate jurisdiction

The Court eliminated the historical distinction between applications arising from the Divisional Court’s appellate jurisdiction (i.e., a statutory appeal to the Divisional Court) versus original jurisdiction (e.g., an application for judicial review in the Divisional Court). Historically, some cases treated leave as more “stringent” or “exceptional” where the Divisional Court had exercised appellate jurisdiction, because the proposed appellant was seeking a second appeal.

Justice Zarnett clarified that the same framework applies regardless of jurisdiction type. As Justice Zarnett held, the principles underlying the historical distinction are “dubious”: a party challenging the Divisional Court’s original jurisdiction decision is also seeking a second court review of an underlying administrative decision; important cases can arise under either type of jurisdiction; and whether leave should be granted should be a function of the nature of the question, not how the case got to the Divisional Court in the first place.

Implications

Knauff establishes a new framework that parties must apply when seeking leave to appeal to the Court of Appeal of Ontario from all Divisional Court decisions. By providing guidance on what makes a proposed question arguable and of sufficient public importance, Knauff gives litigants a clearer basis for framing leave materials and assessing the prospects of an application. This guidance is particularly valuable for litigants given the court’s longstanding practice of not providing reasons on leave applications.

The Court’s elimination of the original-versus-appellate jurisdiction distinction is also consequential. Parties challenging an exercise of the Divisional Court’s original jurisdiction can no longer rely on a lower threshold, even if notionally, while parties challenging appellate decisions are no longer subject to a stricter standard. The focus is instead on the nature and public importance of the arguable question.

Footnotes

1. Knauff v. Ontario (Human Rights Tribunal), 2026 ONCA 653. ↩︎

2. Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, [1973] 2 O.R. 479 (C.A.). ↩︎

3. West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910, at para. 13. ↩︎

4. Davis v. Aviva General Insurance Company, 2024 ONCA 944. ↩︎