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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.

. 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.


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