Seeking Leave To Appeal A Decision Of The Divisional Court: An Updated Framework

In Knauff v Ontario (Human Rights Tribunal)¹ (“Knauff”) a five-judge panel of the Ontario Court of Appeal (the “Court”) updated the test for granting leave to appeal decisions of the Divisional Court, revisiting and refining the framework originally established more than 50 years ago in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie²(“Sault Dock”).

The Leave Framework Articulated in Sault Dock

In Sault Dock the Court established the following framework for deciding whether to grant leave to appeal a decision of the Divisional Court:

• The question before the Court cannot be a question of fact alone and must involve a question of “general interest to the public” or a broad segment of the public, with impact upon the development of the jurisprudence of Ontario.
• Examples of such questions involve the interpretation of a statute or an issue of its constitutionality; the interpretation, clarification or propounding of some general rule or principle of law; the interpretation of a municipal by-law where the point in issue is a matter of public importance; or the interpretation of an agreement where the point in issue is a matter of public importance.
• Leave may be granted where “special circumstances” make the matter of public importance or would appear to require that in the interests of justice leave be granted, for example, where there has been a clear departure from established legal principles resulting in a miscarriage of justice.
• There may be some cases in which it is the duty of the Court to grant leave to correct a clear error of law.

Subsequent Developments: The Need to Reconsider Sault Dock

Cases decided after Sault Dock have not interpreted or applied the framework articulated in Sault Dock consistently. Some cases suggest that leave to appeal should more readily be granted where the Divisional Court exercises original rather than appellate jurisdiction. In other cases that view has been rejected. In one decision a more stringent test for granting leave with respect to an interlocutory order was articulated.³

In West WhitbyLandowners Group Inc. v. Elexicon Energy Inc.⁴ the Court expressed concern that parties were interpreting the test for leave set out in Sault Dock too stringently, including by treating the examples identified in that case as a rigid checklist. That approach ignored the flexibility that Sault Dock was intended to preserve and the Court’s duty to “monitor, clarify and develop the jurisprudence of Ontario”. The introduction of the Canadian Charter of Rights and Freedoms and developments in public and administrative law could give rise to issues warranting consideration by the Court that did not fit neatly into the examples given in Sault Dock. A more flexible, re-articulated “lens” for granting leave was proposed.

That approach was rejected only two weeks later in Davis v. Aviva General Insurance.⁵ In that case the Court stated the Sault Dock test continued to govern the test for leave absent a decision of a five-judge panel of the Court.⁶

The moving party in Knauff asked the Court to reconsider Sault Dock, arguing for a less stringent test given that the legal substratum of what the Divisional Court deals with has changed since Sault Dock. The intervenor, Animal Justice, submitted that the test should focus on the public importance of the issue on appeal.

While the Court disagreed with the test for leave advocated by either the moving party or the intervenor, it did agree that there were good reasons for revisiting the framework for granting leave. This included the existence of issues relating to the interpretation and application of the test and the absence of reasons provided by the Court on most applications for leave that has left parties without an evolving body of case law illuminating how the Court determined the public importance of a question that does not fall neatly into one of Sault Dock’s examples. In addition, uncertainty persisted as to whether different leave tests applied depending on whether the Divisional Court was exercising original or appellate jurisdiction.⁷

Against this backdrop, the Court concluded that an updated framework was appropriate.

The Updated Framework: Arguable Question of Public Importance

The Court confirmed that the key considerations in determining whether to grant leave to appeal set out in Sault Dock remain unchanged:

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.⁸

This framework applies to all applications for leave to appeal from the Divisional Court regardless of whether the Divisional Court was exercising appellate or original jurisdiction.⁹

Given the updated framework, it is no longer necessary to treat either “special circumstances” or the severity or effect of an alleged error as distinct categories potentially warranting leave.¹⁰

Arguability and public importance are distinct but overlapping concepts. A question that is not arguable cannot rise to the level of public importance warranting leave. On the other hand, factors indicating that a question is arguable may inform whether a question is one of public importance.¹¹

a) Arguability

The arguability component considers whether there is a real, debatable question of law or mixed law and fact between the parties.¹² A question of fact will not support leave.

What the proposed question for appeal is and why it is an arguable question must be established prior to considering public importance.¹³ However, this does not require a determination that the appeal will necessarily succeed or result in a different outcome than the one reached by the Divisional Court.¹⁴

Indicators that a proposed appeal may be arguable, while illustrative and not determinative, include circumstances in which the Divisional Court failed to identify and apply the correct law or did not apply the legally required standard of review to the underlying decision.¹⁵

Even where the Divisional Court has correctly identified and applied existing law, an arguable question may still arise where the law or general principles underlying it warrants reconsideration, expansion, qualification, clarification or change.¹⁶

Indicators of that type of arguable question may include:

• a constitutional issue,
• whether the legal rule applied by the Divisional Court was out of step with developments in the law,
• whether the issue is novel or one lacking authoritative guidance from the Supreme Court of Canada or the Court,
• the adequacy of the Divisional Court’s reasoning on a debatable point,
• a dissenting opinion in the Divisional Court,
• conflicting case law from other jurisdictions, or
• compelling academic criticism and legal commentary on the subject.¹⁷

Factors suggesting that a proposed appeal may not be arguable include:

• where the question was not advanced before the Divisional Court and no exceptional circumstances justify raising it on appeal,
• the decision attracts a high level of deference and no grounds exist to overturn the decision within the deferential framework, or
• where the question has become moot even if once arguable.¹⁸

 b) Public Importance

Once the existence of an arguable question has been established, the public importance component considers the breadth and depth of the interests affected and the significance of the question to the development of Ontario law.¹⁹

The Court confirmed that there is no finite or closed category of question that can qualify as being of public importance.²⁰ The matter is to be evaluated from the following two perspectives.²¹

i) Who is Affected and How?

This perspective asks who would be affected by the disposition of the question and how. An issue will generally be of public importance where the resolution of an arguable legal question affects a broader category of persons beyond the parties and/or affects fundamental interests. The greater the reach and the more fundamental the interests, the more likely it is to be of public importance. Public law issues often fit this description. However, questions of public importance are not limited to public law matters.²²

ii) Impact on Ontario Law

The second perspective focuses on the impact that the question will have on the development of jurisprudence in Ontario. Public importance may be established where the resolution of the proposed appeal may impact the development, progress, coherence, stability, and predictability of the law of Ontario and thus the law’s ability to deliver justice.²³

Additional indicators that a proposed appeal may be of public importance, while illustrative and not determinative, include where the issue:

• raises a constitutional question,
• concerns principles in a developing area of law, is novel or lacking authoritative guidance from the Supreme Court of Canada or the Court, or
• is the subject of conflicting views in Ontario and other jurisdictions.

Application of the Updated Framework to the Case

Applying the updated framework, the Court dismissed Mr. Knauff’s request for leave to appeal. The proposed appeal challenged only the Divisional Court’s discretionary decision not to hear a matter that was moot. The Divisional Court correctly applied the test for mootness. The proposed appeal did not raise an arguable question of public importance.²⁴

Takeaways

The decision is significant for these reasons:

• It resolves conflicting decisions relating to the test for leave,
• It provides a robust framework for analyzing whether it is appropriate for the Court to grant leave and hear an appeal from a decision of the Divisional Court, and
• It clarifies that a single test for granting leave applies, regardless of whether the appeal relates to a final or interlocutory order and whether or not the Divisional Court was exercising its original or appellate jurisdiction.

Footnotes