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Appeals - Leave to Appeal - Test

Despite the general rule that decisions on leave to appeal need not be accompanied by reasons, some principles have snuck through.

. South Junction Triangle Grows Neighbourhood Association v. 1423 Bloor Street West Inc. et al.

In South Junction Triangle Grows Neighbourhood Association v. 1423 Bloor Street West Inc. et al. (Div Court, 2023) the Divisional Court considers a test for leave to appeal, here under the appeal provisions of s.24 of the Ontario Land Tribunal Act:

... The test for leave to appeal requires a party to satisfy the court that there is reason to doubt the correctness of the Tribunal’s decision about the question of law. The question of law must also be of sufficient “general or public importance” to merit the attention of the Divisional Court: North Elgin Centre Inc. v. City of Richmond Hill, 2023 ONSC 1123, 40 M.P.L.R. (6th) 239 (Div. Ct.), at para. 7.

. 2541005 Ontario Ltd. v. Oro-Medonte (Township)

In 2541005 Ontario Ltd. v. Oro-Medonte (Township) (Div Court, 2023) the Divisional Court considered a motion for statutory leave to appeal, here brought under the s.24(1) of the Ontario Land Tribunal Act, 2021 against a 'review decision' of the Ontario Land Tribunal (OLT) (the 'review decision' was only to procedurally require a review (para 16), not the substantive review result).

In this quote the court cites a test for leave to appeal:

[33] There is no dispute that, on a motion for leave to appeal, the test is three-fold: 1) the proposed appeal must raise an extricable question of law; 2) there must be a reason to doubt the correctness of the decision appealed from with respect to the question of law; and 3) the matter must be of sufficient general or public importance that it merits the attention of an appellate court.

The court then proceeds to apply this test in paras 34-82.

. Peters v. SNC-Lavalin Group Inc.

In Peters v. SNC-Lavalin Group Inc. (Ont CA, 2023) the Court of Appeal consider the CJA s.133(b) leave test for appealing costs:

[117] Leave to appeal a costs decision is only granted sparingly and only in "obvious cases where the party seeking leave convinces the court there are 'strong grounds upon which the appellate court could find that the judge erred in exercising his discretion'": Brad-Jay Investments Limited v. Village Developments Limited (2006), 2006 CanLII 42636 (ON CA), 218 O.A.C. 315 (C.A.), leave to appeal refused, [2007] S.C.C.A. No. 92, at para. 21; Hughes v. Liquor Control Board of Ontario, 2019 ONCA 305, 145 O.R. (3d) 401, at para. 56. Even where leave is granted, an appellate court will only overturn a costs award if the court below made a legal error or the award is clearly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.

. Catholic Children's Aid Society of Toronto v. V.O.

In Catholic Children's Aid Society of Toronto v. V.O. (Ont CA, 2023) the Court of Appeal considers a 'test' for leave, here under the CYFSA s.115 ['Status review for children in, or formerly in, extended society care'] context:

(4) The framework for leave

[45] The motion judge did not err in articulating the burden of proof. The applicant must satisfy the court, on a balance of probabilities, that leave should be granted. The question is: how should the court’s discretion be exercised?

[46] The appellants argue that the motion judge erred in applying the wrong test for leave. Specifically, they argue that B.A.F. is no longer good law and that the motion judge placed undue emphasis on the five factors set out in that decision. The appellant mother argues that the correct test is set out in J.A.M.-F., at paras. 53-56: “Has the moving party placed before the court … apparently credible and weighty evidence that is sufficient to warrant holding a hearing on the merits? Is the evidence sufficient to demonstrate there is a reasonable prospect of success?” The appellant father proposes the following test: “Has the moving party put forward credible evidence that establishes a reasonable prospect of success with respect to the relief sought by the moving party on the status review application?”

[47] In my view, it is misleading to speak of a “test” for leave. The CYFSA does not set out a test for leave; it simply establishes a discretion to grant leave and does not enumerate any relevant considerations. This is the context in which Bean J. outlined the five criteria in B.A.F., set out above. Read as a whole, those criteria suggest a limited scope for granting leave, such that it should only be granted exceptionally. Had the motion judge applied these five criteria strictly, requiring that all of them be satisfied, I would agree with the appellants that there had been an error in this case: the motion judge would have fettered her discretion under s. 115(5).

[48] But the motion judge did not apply the criteria strictly. Instead, she cited the line of cases confirming that the court’s discretion should not be fettered by strict criteria and that a more flexible approach should be taken. The motion judge referred to the approach set out in J.A.M.-F., an approach she described as focusing on the merits of the leave application rather than strict adherence to the five criteria, and described those criteria as a “helpful guide” for conducting a contextual analysis. Importantly, the motion judge emphasized that the analysis must be child-focused and must give effect to the paramount purpose of the CYFSA.

[49] I see no error in this regard. Plainly, discretionary authority should not be reduced to a set of criteria that apply in a rule-like fashion; to do so is to undermine the nature and purpose of discretionary authority. Different considerations may be of greater or lesser significance in different cases, and the motion judge correctly applied a flexible approach to the B.A.F. criteria.

[50] The strength of an applicant’s case is, of course, an important consideration in determining whether to grant leave, but the inability to establish a prima facie case in the strong sense of that term – establishing, in effect, that a status review application will or is likely to succeed – need not doom a request for leave. I agree with Thibideau J., who stated in J.A.M.-F., at para. 47:

The proper test is one that recognizes the intent of the legislation and at the same time does not require the parent to make out the case twice, once at the leave hearing and again on the status review hearing, if successful on the leave hearing. The proper test allows meaningful and meritorious applications to move forward and prevents those that unnecessarily put at risk the in-place plan from moving forward.

[51] The motion judge did not consider the prima facie case criterion in the strong sense of the term. She proceeded on the basis that the requirement for leave is “substantial”, and “[w]hat must be established is whether there is ‘sufficient evidence to support holding a hearing and having any agency plan put on hold’”. This approach interprets the prima facie case standard as requiring only a “reasonable prospect” or a “realistic chance” of success on the status review application. See e.g., J.A.M.-F., at para. 56; The Children’s Aid Society of Toronto v. S.C., 2017 ONCJ 240, at para. 17; S.R. v. Catholic Children’s Aid Society of Toronto, 2011 ONCJ 11, at para. 36; Children’s Aid Society of Brant v. A.C., 2015 ONCJ 436, at paras. 7-10; M.P. v. Windsor-Essex Children’s Aid Society and S.G., 2022 ONCJ 298, at paras. 25, 44.

[52] There is no magic in the terminology here. Suffice it to say that the strength of a proposed status review application is an important consideration in determining whether, in all of the circumstances, the court should exercise its discretion to grant leave. I am satisfied that the motion judge properly understood the nature of her discretion and, as I explain below, I see no basis to interfere in her exercise of discretion in this case.

. Drewlo Holdings v. MPAC

In Drewlo Holdings v. MPAC (Div Court, 2023) the Divisional Court sets out the test for leave to appeal, here in an Assessment Act s.43.1(1) appeal:

[24] The Act sets out the appeal route in s. 43.1(1). An appeal lies from the Board to the Divisional Court, with leave, on a question of law.

[25] The parties agree on the applicable test for leave to appeal in this context, as set out in Via Rail Canada Inc. v. MPAC, 2015 ONSC 7459. In order to grant leave to appeal, the court must be satisfied that:

(a) There is some reason to doubt the legal correctness of the Board’s Decision; and

(b) The appeal involves an important question of law meriting the attention of the Divisional Court.

[26] As noted in Via Rail, at para. 17, to meet the first branch of the test, the party seeking leave to appeal need not show that the Board’s Decision was wrong or even probably wrong. This part of the test is satisfied if the correctness of the Decision is “open to very serious debate”.

[27] If there are conflicting decisions on an issue, this may give reason to doubt the correctness of a decision. If the Board has applied legal tests or factors that are novel or not in accordance with established case law, the threshold of “open to very serious debate” may be met (see: Via Rail, at para. 18).

. Baran v. Cranston

In Baran v. Cranston (Div Court, 2022) the Divisional Court stated the test for leave to appeal a costs order:

[29] The Ontario Court of Appeal has instructed that leave to appeal a costs order should be granted only “in obvious cases where the party seeking leave convinces the court there are ‘strong grounds upon which the appellate court could find that the judge erred in exercising his discretion’” (Brad-Jay Investments Limited v. Village Developments Limited, 2006 CanLII 42636 (ON CA) at para. 21; Levant v. DeMelle, 2022 ONCA 79 at para. 74).

. BCE Inc. v. Québecor Média Inc.

In BCE Inc. v. Québecor Média Inc. (Fed CA, 2022) the Federal Court of Appeal considered a test for leave to appeal:

[39] The jurisprudence of this Court on applications for leave to appeal holds that in order to obtain leave the applicant must establish an arguable case that the decision in issue was based on an error of law or jurisdiction: CKLN Radio Incorporated v. Canada (Attorney General), 2011 FCA 135, 418 N.R. 198 at para. 6; Lukács v. Swoop Inc., 2019 FCA 145, 305 A.C.W.S. (3d) 500 at para. 15; Lufthansa German Airlines v. Canadian Transportation Agency, 2005 FCA 295, 346 N.R. 79 at paras. 8-9; Krishnapillai v. Canada, 2001 FCA 378, [2002] 3 FC 74 at paras. 10-11 [Krishnapillai]; Radio India (2004) Ltd. v. Canada (Radio-Television and Telecommunications Commission), 2006 FCA 253 at para. 1. In Krishnapillai, this Court decided, at paragraph 11 of its reasons, that:

Neither a decision granting leave nor a decision denying leave may be said to be a decision on the merit of any given issue. I have yet to see either type of decision successfully invoked as authority for the proposition that the issues raised in a leave application have been actually decided one way or the other.

. Divitaris v. Gerstel

In Divitaris v. Gerstel (Ont CA, 2022) the Court of Appeal considered leave to appeal, and - unusually - set out some criteria for granting leave:

[7] Leave to appeal is required. The Divisional Court would normally determine leave requests based solely on the written materials. The appellant made written submissions, and in the unusual circumstances of this case we offered the parties the opportunity to make brief oral submissions.

[8] Having reviewed the materials and considered the oral submissions of the parties, we are not satisfied that the requirements of r. 62.02(1) have been met. This is not a case in which there is confusion in relation to r. 7.06(2) that must be sorted out. There is no reason to doubt the correctness of the order, nor does the proposed appeal involve a matter of general importance that warrants granting leave.

. 828343 Ontario Inc. v. Demshe Forge Inc.

In 828343 Ontario Inc. v. Demshe Forge Inc. (Ont CA, 2022) the Court of Appeal considered criteria for granting leave to appeal:

[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 should 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 correction: Sault Dock, at paras. 9-10.

....

[33] Further, and in any event, the questions that would be raised on the proposed appeal do not fall within the ambit of those set out in Sault Dock. As I explain above, this court is to grant leave to appeal decisions of the Divisional Court only in limited circumstances. None of those circumstances apply to the proposed appeal. The questions which would be addressed are of interest only to the parties – they are not matters of public importance. Nor, for the reasons already given, is there clearly an error in the Decision which requires correction. On the contrary, the Decision is patently correct.

. Lee v. Richcraft Homes Ltd.

In Lee v. Richcraft Homes Ltd. (Ont CA, 2019) the Court of Appeal set out the test for granting leave to appeal to the Divisional Court:

[21] The test for leave to appeal an order of the Divisional Court exercising its appellate jurisdiction is set out in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479 (C.A.), at pp. 480-81; see also Enbridge, at paras. 19-22. Typically, the matter will present an arguable question of law or mixed fact and law requiring the interpretation of Ontario statutes or regulations, principles of law or, where the point in issue involves a question of public importance, a municipal by-law, or agreement. The court may also grant leave to appeal when there has been a departure from established principles of law that would result in a miscarriage of justice, or when there has clearly been an error in a judgment or order of the Divisional Court: see Sault Dock at p. 481; Enbridge at paras. 21-22.

. Re Sault Dock Co. Ltd. and City of Sault Ste. Marie

In Re Sault Dock Co. Ltd. and City of Sault Ste. Marie (Ont CA, 1972) the Court of Appeal set out the leave for appeal test for matters being appealed to the Divisional Court. The case is also interesting for it's history of the Divisional Court:

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.