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Appeals - Leave to Appeal to the Court of Appeal [CJA 6(1)(a)]. Knauff v. Ontario (Human Rights Tribunal) [IMPORTANT - Sault Dock confirmed]
In Knauff v. Ontario (Human Rights Tribunal) (Ont CA, 2026) the Ontario Court of Appeal (five judge panel) considers when it is "appropriate for this court to grant leave and hear an appeal from the Divisional Court", ultimately affirming that this law is still as set out in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie (Ont CA, 1972).
Here the court reviews and 'updates' the Sault Dock doctrine:[3] For over fifty years, the primary guidance on that issue has been this court’s decision in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479 (C.A.). In late 2024, a panel of this court expressed serious concern about whether that guidance was being properly interpreted, especially in light of changes to the legal landscape that had occurred since Sault Dock was decided. Reformulated guidance was suggested: West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910, 174 O.R. (3d) 321. Shortly afterwards, a different panel of this court stated that Sault Dock continued to govern absent a decision of a five-judge panel, and that West Whitby should be viewed as a discussion and application of the Sault Dock framework: Davis v. Aviva General Insurance Company, 2024 ONCA 944, 174 O.R. (3d) 788.
[4] When Adam Knauff, the moving party, applied to this court for leave to appeal a Divisional Court decision that affected him, he asked that Sault Dock be reconsidered. A five-judge panel was convened to hear the moving party’s application for leave to appeal so that it could expressly consider whether the Sault Dock guidance remains adequate.
[5] For the reasons that follow, I conclude that the essential message of Sault Dock should be maintained. The key consideration in deciding whether to grant leave to appeal from a decision of the Divisional Court remains whether there is an arguable question of law or mixed law and fact that is of public importance warranting consideration by this court. However, it is appropriate to provide an updated framework to be applied when this court is asked to grant leave and to clarify that the updated framework will apply to all applications for leave whether the Divisional Court was exercising appellate or original jurisdiction.
[6] The components of the updated framework are arguability and public importance. The arguability factor looks at whether there is a real, debatable question between the parties arising in the circumstances of the case. The public importance factor looks at the breadth and depth of the interests affected and the significance of the question to the development of the law of Ontario.
[7] While distinct concepts, arguability and public importance have overlapping features. A question that is not arguable in the circumstances of the case cannot rise to the level of public importance warranting leave, because public importance is not gauged in the abstract. On the other hand, what makes a question arguable can inform why it is one of public importance warranting consideration by this court.
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II. THE SAULT DOCK FRAMEWORK
1. The Sault Dock Decision
[9] Sault Dock is a relatively short decision, with a lot packed into it.
[10] First, Sault Dock identified the overarching consideration on an application seeking leave to appeal from a Divisional Court decision as the importance of the question in issue viewed from the perspective of the development of Ontario law and the interest of the public, rather than from the perspective of the parties. The court stated that the “sole or perhaps the paramount consideration” in determining whether this court should grant leave is “the impact which the decision on the question will have on the development of the jurisprudence of Ontario.” The court added, “[i]f the resolution of the question would largely have significance only to the parties and would not settle for the future a question of general interest to the public or a broad segment of the public, the requirement to obtain leave will not have been met”: at pp. 480-1.
[11] Second, Sault Dock indicated that the question on which leave is sought must be arguable, providing a short, non-exhaustive list of examples of cases that, if arguable, might merit leave. While noting that “it may not be desirable to attempt to formulate a catalogue”, at p. 481, the court stated that before granting leave the court should be satisfied that the case will:[P]resent an arguable question of law or mixed law and fact requiring ... consideration of matters such as the following:
a) the interpretation of a statute or Regulation of Canada or Ontario including its constitutionality;
b) the interpretation, clarification or propounding of some general rule or principle of law;
c) the interpretation of a municipal by-law where the point in issue is a question of public importance; and
d) the interpretation of an agreement where the point in issue involves a question of public importance. [12] Third, Sault Dock briefly described a residual category of cases that might merit leave, even though they fell outside of the examples listed. Three potentially different types of cases were mentioned, without significant elaboration: (i) where “special circumstances” make the matter one of public importance; (ii) where “special circumstances” require that leave be granted in the “interest of justice … such as the introduction of new evidence, obvious misapprehension … of the relevant facts or a clear departure from the established principles of law resulting in a miscarriage of justice”; and (iii) to correct a clear error, even though the possibility of an error in the Divisional Court’s decision would not generally, on its own, justify granting leave: at p. 481.
2. The Development of the Sault Dock Framework
[13] Sault Dock involved a request for leave to appeal a decision of the Divisional Court exercising its appellate jurisdiction. Sault Dock was distinguished in Re United Glass & Ceramic Workers of North America, 1973 CanLII 459 (ON CA), [1973] 2 O.R. 763 (C.A.), where the Divisional Court had exercised original jurisdiction, and thus the applicant was seeking leave to bring a first, not a second, appeal. Although the United Glass decision itself did not set out a test for leave in those circumstances, the headnote expressed the view that leave to appeal would more readily be granted where the Divisional Court had exercised original, rather than appellate, jurisdiction. How much more readily, and on what principles, was not articulated.
[14] Nevertheless, in some cases, the Sault Dock framework was treated as the relevant guidance on all applications for leave to appeal from decisions of the Divisional Court, with the nature of the jurisdiction exercised (appellate or original) treated as one consideration. In Iness v. Canada Mortgage and Housing Corp. (2002), 2002 CanLII 15707 (ON CA), 62 O.R. (3d) 255 (C.A.), at para. 4, Weiler J.A. described the combined effect of Sault Dock and United Glass as follows:Under s. 6(1)(a) of the [Courts of Justice Act], appeals from a decision of the Divisional Court will only be granted with leave on a question that is not a question of fact alone. The possibility that there may be an error in the judgment or order sought to be appealed will not generally be a ground in itself for granting leave. Matters considered in granting leave include a) whether the Divisional Court exercised appellate jurisdiction (in which case the applicant for leave is seeking a second appeal) or whether the Divisional Court was sitting as a court of original jurisdiction; b) whether the appeal involves the interpretation of a statute or regulation including its constitutionality; c) the interpretation, clarification or propounding of some general rule or principle of law; and d) whether the interpretation of the law or agreement in issue is of significance only to the parties or whether a question of general interest to the public or a broad segment of the public would be settled for the future. [Citations omitted.] [15] Other cases stated that appeals from exercises of the Divisional Court's appellate jurisdiction should be viewed as “exceptional” and the test for leave from such a decision treated as “stringent”,[4] as compared to when the Divisional Court has exercised original jurisdiction.
[16] Meanwhile, in cases where the Divisional Court exercised its appellate function with respect to an interlocutory order, a further consideration was added. Leave from the Divisional Court’s order would only be granted in exceptional cases such as “where the interlocutory decision can have a bearing on the critical issue in the litigation”: Stoicevski v. Casement (1983), 1983 CanLII 1679 (ON CA), 43 O.R. (2d) 436 (C.A.), at p. 437. If that hurdle was passed, the other elements of the Sault Dock framework would then be considered.
[17] Other than those developments, the Sault Dock framework did not, before 2024, receive continuing elucidation, amplification, clarification or modification through reasons provided in subsequent cases that actually applied it.[5] Except in unusual cases, this court has generally not provided reasons for granting, or refusing, leave to appeal from the Divisional Court. At paras 18-22 the court sets out recent concerns about the Sault Dock doctrine.
At paras 23-31 the court commences a reconsideration and updating of the Sault Dock doctrine, then continuing:IV. THE UPDATED FRAMEWORK
[32] The key consideration in the updated framework for an application for leave to appeal from any decision of the Divisional Court is whether the proposed appeal raises an arguable question of law or mixed law and fact that is of sufficient public importance to warrant consideration by the Court of Appeal.
[33] The components of the updated framework are accordingly arguability and public importance. They are separate but overlapping concepts.
1. Arguability
[34] The arguability component focuses on whether there is 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 will result in a different outcome than the one reached by the Divisional Court. But it does require that there be a real issue for appeal that then can be assessed for its public importance.
[35] What the proposed question for appeal is, and why it is an arguable question, must be determined before proceeding to consider public importance, the other critical aspect of a leave application. That is because a question that is important in the abstract, or that would be important in different circumstances or on a different record, will not be one of public importance in the necessary sense if it does not arise as an arguable question in the case at hand.
[36] The following discussion is intended to illuminate the concept of arguability without foreclosing other examples that may arise in specific cases.
[37] If the question raised, no matter how it is framed, is really only about the facts, an appeal would not be arguable as no appeal lies on a question of fact alone. In other cases, the arguability of a proposed appeal may be problematic because of the nature of the question raised. For example, if the question raised was not argued before the Divisional Court, an appeal would only be arguable if there appear to be exceptional circumstances that make it appropriate to hear the new issue for the first time in this court.[8] If the Divisional Court’s decision is the type that would attract a high level of deference on appeal, such as an exercise of discretion[9] or the application of a correctly articulated and unchallenged legal test to the facts,[10] an appeal would only be arguable if there appear to be grounds to overturn the decision within the deferential framework. A question, even if once arguable, may have lost that quality if it has become moot, unless it appears that there are grounds to exercise the discretion to hear a moot appeal.[11]
[38] An arguable question may involve the failure of the Divisional Court to identify and apply the correct law to the issue, or to apply the legally required standard of review to the underlying decision, in a way that was not harmless but instead may have affected the outcome. Even where the Divisional Court has correctly identified and applied the existing law, an arguable question may still arise if that law, or the general principles that underlie it, should be reconsidered, expanded, qualified, clarified or changed. Indicators of that type of arguable question may include whether the issue is a constitutional one, whether the legal rule applied by the Divisional Court is out of step with developments in that area of the law, whether the issue is novel or in any event is one lacking in authoritative guidance from the Supreme Court of Canada or this court, the nature or adequacy of the Divisional Court’s reasoning on a debatable point, a dissent in the Divisional Court, conflicting case law from other jurisdictions, and/or compelling academic criticism and other legal commentary on the subject.
2. Public Importance
[39] If there is an arguable question of law or mixed law and fact, the public importance of the question is then considered.
[40] There is no finite or closed category of question that can qualify as being of public importance. Examples from prior cases are only examples. The underlying principle is that the public importance component of the framework strikes a balance between two considerations that pull in opposite directions. On the one hand, recourse beyond a determination by the Divisional Court is limited, not automatic, as the legislature imposed a leave requirement rather than creating a right of appeal and questions of fact alone are not appealable. On the other hand, this court, as noted in West Whitby, has the responsibility to “monitor, clarify, and develop the jurisprudence of Ontario”, which necessarily involves considering some matters already decided by the Divisional Court.
[41] Thus, when this court performs its function of determining whether an arguable question should be heard on appeal, it assesses public importance from two perspectives.
[42] The first perspective asks who would be affected by a disposition of the question, and how they would be affected. It is in this sense that an arguable question of public importance is sometimes juxtaposed to a question of significance to the parties only, as it was in Sault Dock. Issues that arise in the area commonly known as “public law” often fit this description, but they are not limited to that field. The broader the category of persons affected by the resolution of the legal issue involved, and the more fundamental the interest that is affected, the more the question has the quality of public importance.
[43] The second perspective has to do with how the law of Ontario is affected by a disposition of the arguable question—as the court put it in Sault Dock, “the impact which the decision on the question will have on the development of the jurisprudence of Ontario.” This perspective focuses less on who beyond the parties might, in the near term, be impacted by a disposition of the issue, and more on the legal importance of the question: is it a question that goes to the development, progress, coherence, stability and predictability of the law, and thus the law’s ability to deliver justice in Ontario?
[44] The two perspectives of public importance will often overlap with each other. They may also overlap with the consideration that the question must be arguable, because what makes a question arguable may also inform whether the question is one of public importance. Whether the issue is a constitutional one, or deals with principles in an area in which the law is developing, or is novel or marked by the absence of authoritative guidance from the Supreme Court of Canada or this court, or is the subject of conflicting views here or elsewhere, may also be indicators of the public importance of the question.
[45] Although Sault Dock suggested there might be cases involving “special circumstances” that make a matter one of public importance,[12] a special category for such cases is not required. Any circumstance that is alleged to make a matter one of public importance is to be considered within the public importance component of the updated framework.
[46] Similarly, although Sault Dock suggested the severity and effect of the alleged error in the Divisional Court might in exceptional cases warrant granting leave,[13] a special category for such cases is also unnecessary. An argument that not only has an error occurred in the Divisional Court, but that it has resulted in a miscarriage of justice, is properly considered within the public importance component of the updated framework, which takes account of the nature of the interest affected by the resolution of the question in issue. An argument that an error is not only arguable but is a “clear error” should also now be considered from the vantage point of whether the extent of the error makes the question for appeal one of public importance, given the precedential effect such an error may have.
3. The Same Framework Applies to All Applications for Leave to Appeal from Divisional Court Decisions
[47] There is no need to retain a notional distinction between the approach to leave to appeal in cases where the Divisional Court exercised original jurisdiction and those in which it exercised appellate jurisdiction. The same framework should apply to all decisions of the Divisional Court. Whether leave to appeal to this court is granted should be a function of the nature of the question arising from the Divisional Court’s decision (whether it is an arguable question of public importance), not how the case got to the Divisional Court in the first place.
[48] The principles that inform any difference in approach are dubious. Although some cases have referred to the fact that a party is seeking a second appeal as a reason for a stricter standard in cases where the Divisional Court exercised appellate authority, a party seeking to appeal the Divisional Court’s exercise of original jurisdiction is also seeking a second court review of the underlying administrative decision. And further blurring the supposed distinction is the possibility that the Divisional Court exercised both its original and appellate jurisdiction in the same case. For example, a challenge to the same decision of an administrative tribunal could be heard in the Divisional Court by appeal under a statute, and by judicial review on issues not dealt with under the statutory right of appeal: see e.g., Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 D.L.R. (4th) 191.
[49] Nor can it be said that the type of jurisdiction exercised by the Divisional Court is an indicator of when further appellate recourse from its decisions is more likely justified. Important cases in the administrative and public law sphere may be decided by the Divisional Court in the exercise of its judicial review (e.g. original) jurisdiction. But they may also be decided by the Divisional Court exercising its appellate jurisdiction, as it has appellate jurisdiction over certain administrative tribunals.[14] And the Divisional Court’s appellate jurisdiction relating to decisions of the Superior Court also extends to other significant areas that can affect the public, such as the behaviour of corporations and their directors regulated by the Business Corporations Act.[15]
[50] In short, there is no basis for viewing an arguable question of public importance differently, from the leave to appeal perspective, depending on whether it arises from an exercise of the Divisional Court’s appellate or original jurisdiction. The number of times and manner in which an issue has been rehashed in a case may bear on whether the question is actually an arguable one of public importance when leave is sought to appeal to this court, but that is a consideration within, not outside of, the updated framework.
[51] Similarly, an additional gloss for interlocutory orders (with its own exception) is unnecessary. Whether the order had a decisive effect on the outcome of the litigation, or has a merely transitory effect, is simply one of a number of factors to be considered in deciding whether there is an arguable question of public importance within the updated framework. . Schram v. Linwood Management Corporation
In Schram v. Linwood Management Corporation (Ont CA, 2025) the Ontario Court of Appeal considered the test for leave to appeal, here with respect to an appeal from the Divisional Court:[8] With respect to the motion for leave to appeal the Divisional Court’s order, the stringent test for granting appeal was helpfully summarized by Gillese J.A. in 828343 Ontario Inc., at para. 22:The Decision was rendered by the Divisional Court exercising its appellate jurisdiction. Such decisions are intended to be final and a review of them, by this court, is an exception to that general rule. Before granting leave, this court must be satisfied that the proposed appeal presents an arguable question of law, or mixed law and fact, that requires the court to consider matters of public importance, such as the interpretation of legislation or clarification of some general rule or principle of law: Sault Dock Co. Ltd. v. Sault Ste. Marie (City), 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479 (C.A.), at para. 8. There also may be special circumstances that make the matter sought to be brought to this court a matter of public importance or involve a clear error in the Divisional Court decision that requires correct: Sault Dock, at paras, 9-10. . Davis v. Aviva General Insurance Company
In Davis v. Aviva General Insurance Company (Ont CA, 2024) the Ontario Court of Appeal re-considers the recent leave to appeal case of West Whitby Landowners Group Inc. v. Elexicon Energy Inc. (Ont CA, 2024), where the court questions the long-standing test from Re Sault Dock Co. Ltd. and City of Sault Ste. Marie (Ont CA, 1972). The court here finds the Sault Dock test not to have changed:APPLICABLE TEST FOR LEAVE TO APPEAL
[2] The practice of this court is that decisions on leave to appeal motions generally are not accompanied by reasons. I depart from that practice here in order to address a question of uncertainty that has arisen in light of comments made by a panel of this court in granting leave to appeal in West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910 (“West Whitby”).
[3] The principles governing motions for leave to appeal decisions of the Divisional Court were set out succinctly in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479 (C.A.) (“Sault Dock”). The court explained those principles in the following passage:Upon the creation of the Divisional Court there was conferred upon it with respect to a specified category of cases the appellate jurisdiction which hitherto had been exercised by the Court of Appeal. Appeals from an appellate decision of the Divisional Court to the Court of Appeal are limited by providing that an appeal lies only:a. with leave
b. on a question that is not a question of fact alone. Consideration of the statutory enactments concerning the Divisional Court, particularly those restricting the appeals from the orders or judgments of that Court, indicates that as a general rule, decisions in matters coming before the Divisional Court in its appellate capacity are intended to be final and that review of those decisions by the Court of Appeal are to be the exceptions to the general rule. These matters, which before the establishment of the Divisional Court terminated in the Courts of Ontario when a decision was rendered by the Court of Appeal, would normally terminate with the decision of the Divisional Court.
The magnitude of the amount involved is not of significance in deciding whether or not leave should be granted. A case involving a comparatively small sum of money may well be of more importance to the litigants than is a vastly greater amount to the contestants in another action. Every decision of a Court is of importance to the parties affected but when no appeal is allowed on questions involving fact alone, then the importance of the decision to the individual is not to be the sole or perhaps the paramount consideration. It is rather the impact which the decision on the question will have on the development of the jurisprudence of Ontario. If the resolution of the question would largely have significance only to the parties and would not settle for the future a question of general interest to the public or a broad segment of the public, the requirements to obtain leave will not have been met.
While it may not be desirable to attempt to formulate a catalogue of the circumstances under which leave to appeal would be granted by this Court, to carry out what is considered to be the purpose of the Legislature, the Court of Appeal should be satisfied before granting leave that the matter will present an arguable question of law or mixed law and fact requiring of the Court consideration of matters such as the following:(a) the interpretation of a statute or Regulation of Canada or Ontario including its constitutionality;
(b) the interpretation, clarification or propounding of some general rule or principle of law;
(c) the interpretation of a municipal by-law where the point in issue is a question of public importance;
(d) the interpretation of an agreement where the point in issue involves a question of public importance. The Court will of course consider also cases where special circumstances would make the matter sought to be brought before the Court a matter of public importance or would appear to require that in the interest of justice leave should be granted -- such as the introduction of new evidence, obvious misapprehension of the Divisional Court of the relevant facts or a clear departure from the established principles of law resulting in a miscarriage of justice.
The outlining of the foregoing criteria is not to say that in cases in which there is clearly an error in a judgment or order of the Divisional Court, it is not the duty of the Court of Appeal to grant leave so that it might correct the error. However, the possibility that there may be error in the judgment or order will not generally be a ground in itself for granting leave. [4] In West Whitby, the panel underscored, in the passage from Sault Dock reproduced above, the importance of assessing the impact of a decision on the jurisprudence of Ontario. That panel likened this aspect of Sault Dock to the Supreme Court of Canada’s distinct approach to leave to appeal applications.
[5] By contrast, the panel criticized the undue attention which, in their view, has been placed on the four categories enumerated to illustrate matters on which an arguable question must be established in order to meet the threshold for leave.
[6] Applying Sault Dock, the panel in West Whitby found the threshold for leave in the motion before them was met. In their view, the decision of the Divisional Court dismissing a judicial review application from an Ontario Energy Board decision dealing with the interpretation of Distribution System Code, which the Board issued under the Ontario Energy Board Act, 1998, S.O. 1998, c. 15, Sched. B. had significant impact beyond the parties.
[7] The panel in West Whitby also offered its perspective on how long the Sault Dock framework has been in place and why it is important to bring an “updated and flexible” approach to the leave framework.
[8] The question now to be considered is whether the principles governing leave applications before the Court of Appeal have changed in light of West Whitby. This question, of course, is important. If we were of the view the principles have changed, it would be necessary to permit the parties to make further submissions on their leave application in light of the new standard.
[9] In my view, the principles governing leave applications have not changed. I reach this conclusion for two reasons.
[10] First and most importantly, I see the approach taken by the panel in West Whitby as fitting squarely within the Sault Dock framework, as that panel interpreted Sault Dock.
[11] In describing the proper approach to leave applications, the panel excerpted the passage from Sault Dock reproduced above dealing with the impact a question may have on the jurisprudence of Ontario and stated, at para. 11, “Therein lies the heart of the consideration of an application for leave to appeal: not whether the issue falls into some pigeon-hole on a checklist, but ‘the impact which the decision on the question will have on the development of the jurisprudence of Ontario.’” In other words, it appears that the West Whitby panel intended to highlight rather than change the principles governing leave motions from the Divisional Court to the Court of Appeal.
[12] Second, where parties (or the court) seek to revisit a precedent-setting decision of this court with the possibility of changing the law, a five-judge panel of the court may be requested or convened, so that full argument on the proposed change, and its implications, can be put before the court: see s. 13 of the Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario. No such request for a five-judge panel was made in the context of West Whitby.
[13] For these reasons, in my view, West Whitby should be read as a helpful discussion and application of the Sault Dock framework, which continues to be the source for the principles governing motions for leave to appeal from the Divisional Court to the Court of Appeal. I would leave for another day and an appropriate context the question of whether there is any need to revisit that framework before a five-judge panel. . West Whitby Landowners Group Inc. v. Elexicon Energy Inc. [IMPORTANT]
In West Whitby Landowners Group Inc. v. Elexicon Energy Inc. (Ont CA, 2024) the Ontario Court of Appeal granted leave to appeal, and in the process practically expands the conventional long-standing interpretation of the leading case of Re Sault Dock Co. Ltd. and City of Sault Ste. Marie (Ont CA, 1972). Essentially, on a leave to appeal application, the court should now examine "the impact which the decision on the question will have on the development of the jurisprudence of Ontario":[7] The respondents begin their opposition to the Landowners’ leave application by pointing to the brief endorsement of this court in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479 (C.A.). They remind this panel that in applying Sault Dock the view has been taken that decisions of the Divisional Court – whether in the exercise of its original or appellate jurisdiction – are intended to be final and not reviewable by this Court save in exceptional cases. Over the years, the Sault Dock decision has been regarded, by some, as establishing a stringent test for leave to appeal.
[8] As often happens when certain judicial decisions take on the reputation as eternal pronouncements carved in tablets of stone, two unhealthy features work their way into the resulting jurisprudence.
[9] First, the flexibility of the canonical decision is forgotten in favour of a multi‑factor test that can be applied easily by rote. The panel in Sault Dock recognized that “it may not be desirable to attempt to formulate a catalogue of the circumstances under which leave to appeal would be granted by this Court”, as any such endeavour carries the risk of a judicial walk on thin ice. Which, no doubt, is why that panel described its list merely as suggesting “matters such as the following”, a qualification that has been forgotten over the ensuing years.
[10] More significantly, before suggesting a list “such as the following”, the panel identified the key consideration underpinning any decision to grant leave to appeal. Section 6(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that an appeal from an order of the Divisional Court lies, with leave, “on a question that is not a question of fact alone”. The Sault Dock panel noted the consequence of that statutory limit: “Every decision of a Court is of importance to the parties affected but when no appeal is allowed on questions involving fact alone, then the importance of the decision to the individual is not to be the sole or perhaps the paramount consideration.” The panel then continued:It is rather the impact which the decision on the question will have on the development of the jurisprudence of Ontario. If the resolution of the question would largely have significance only to the parties and would not settle for the future a question of general interest to the public or a broad segment of the public, the requirements to obtain leave will not have been met. [Emphasis added.] [11] Therein lies the heart of the consideration of an application for leave to appeal: not whether the issue falls into some pigeon-hole on a checklist, but “the impact which the decision on the question will have on the development of the jurisprudence of Ontario.”
[12] Of the three levels of court in Ontario, it is the responsibility of the Court of Appeal for Ontario to monitor, clarify, and develop the jurisprudence of Ontario.
[13] In discharging that responsibility, the lens this court should bring to any question brought before it for leave mimics, with appropriate modification, the lens employed by the Supreme Court of Canada when considering its leave applications, namely: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?
If so, leave to appeal should be granted. [14] The second unhealthy feature of continuing a slavish adherence to Sault Dock’s “checklist” approach is that it forgets the age of the Sault Dock decision. It’s an old decision. So old, in fact, that it pre-dates the enactment of the Canadian Charter of Rights and Freedoms. The Charter now plays an important role in judicial review litigation before the Divisional Court, from which there is no right of appeal. The development of administrative law, and public law more generally, will often require the oversight of the Court of Appeal for Ontario.
[15] Turning to the present case, there is no secret that both the federal and provincial governments are pursuing polices to promote much greater use of electricity in the economy. There is no secret that the Ontario government is pursuing an aggressive policy to support the construction of more residential accommodation, including subdivision projects such as those being pursued by the Landowners. Against that backdrop, the question of whether some decisions of the state actor responsible for regulating the allocation of costs associated with the greater use of electricity are immune from judicial review is one of great public importance.
[16] Applying an updated and more flexible approach to the leave application before us, the Divisional Court’s decision appears to insulate certain decisions of the Board from judicial review. This has impact well beyond the immediate parties in this case. It also has broader implications for the Ontario public and their economic interests. The questions on which the Landowners seek leave to appeal plainly merit consideration by this court. Iness v. Canada Mortgage and Housing Corp.
In Iness v. Canada Mortgage and Housing Corp. (Ont CA, 2002) the Court of Appeal considers criteria for a leave to appeal motion:[4] Iness is seeking leave to appeal to this court. Under s. 6(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, appeals from a decision of the Divisional Court will only be granted with leave on a question that is not a question of fact alone. The possibility that there may be an error in the judgment or order sought to be appealed will not generally be a ground in itself for granting leave. Matters considered in granting leave include: (a) whether the Divisional Court exercised appellate jurisdiction (in which case the applicant for leave is seeking a second appeal) or whether the Divisional Court was sitting as a court of original jurisdiction; (b) whether the appeal involves the interpretation of a statute or regulation including its constitutionality; (c) the interpretation, clarification or propounding of some general rule or principle of law; and (d) whether the interpretation of the law or agreement in issue is of significance only to the parties or whether a question of general interest to the public or a broad segment of the public would be settled for the future: Re United Glass and Ceramic Workers of North America (AFL-CIO-CLC), [1979] 2 O.R. 763 (C.A.); Sault Dock Co. v. Sault Ste. Marie (City), 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479, 34 D.L.R. (3d) 327 (C.A.).
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