What Ontario Courts Now Require to Seek Leave to Appeal

In Ontario, parties have no inherent right to appeal a decision.

In the civil context, the Courts of Justice Act (the “CJA”)^[1]prescribes the circumstances in which parties may appeal orders to a higher Court.

In certain circumstances, the Legislature has gone one step further, limiting the right to bring an appeal without the prior permission or “leave” of the appellate Court.

Under section 6(1)(a) of the CJA, parties may only appeal an order of the Divisional Court to the Court of Appeal with leave, and only on questions of law or mixed fact and law.^[2]

In its 1973 decision in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie,^[3] the Court of Appeal set out a number of factors it considers relevant when deciding whether to grant leave to appeal an order of the Divisional Court.

Broadly speaking, the Sault Dock methodology involved deciding whether the appeal at issue would lead to the development of Ontario law and whether the appeal raised questions of public importance.

But Sault Dock has come under scrutiny in recent years.

In 2024, the Court of Appeal noted that the Sault Dock analysis was somewhat outdated, given that the Court decided the case before Canada enacted the Charter and before key developments in Canadian administrative and public law had occurred.^[4]

Moreover, there were concerns that parties were simply applying the Sault Dock factors perfunctorily, without giving weight to the overall holistic exercise the Court must undertake when deciding whether to grant leave to appeal.^[5]

In November 2025, the Court of Appeal convened a five-judge panel in Knauff v. Ontario (Human Rights Tribunal)^[6] to hear a challenge to the Sault Dock framework.

The Court released its decision in Knauff in September 2026.

Knauff very much preserves the normative underpinnings of Sault Dock, emphasizing that the primary inquiry of any leave to appeal motion is whether there is an “arguable question^[7] of law or mixed law and fact that is of public importance warranting consideration by this court”.

However, Knauff also creates a new methodology for all leave motions, framing the Court’s inquiry around two central pillars: the arguability of the appeal and its public importance.

1. The Proposed Appeal Must Be “Arguable”.

One of the central tenets of a leave application under Knauff is 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”.^[8]

The test respects section 6(1)(a) of the CJA, which bars appeals on pure factual questions.

Knauff emphasizes, however, that an arguable appeal is not one that will necessarily succeed or produce a different outcome from the one the Divisional Court reached.^[9]

Rather, there must be a “real issue for appeal that can be assessed for its public importance”.^[10]

The Court must consider the arguability factor before it determines whether the proposed appeal raises questions of public importance.^[11]

The Court provided examples of “arguable” questions that would meet the Knauff requirements, including:

• The failure of the Divisional Court to identify and apply the correct law to the issue;
• The Divisional Court’s failure to apply the legally required standard of review to the underlying decision in a way that affects the ultimate outcome of the case;
• The law applied by the Divisional Court requires reconsideration, expansion, qualification, clarification or change. Examples include:
• Constitutional questions requiring clarification or reconsideration;
• Whether the legal principle applied by the Divisional Court is “out of step with developments in that area of the law”;
• Whether the issue is novel or lacking in authoritative guidance from the Supreme Court of Canada or the Court of Appeal;
• The existence of a dissenting judgment at the Divisional Court level;
• The nature or adequacy of the Divisional Court’s reasoning on a debatable point; and
• Compelling academic criticism of, or legal commentary on, the subject.^[12]

2. The Proposed Appeal Raises Questions of “Public Importance”.

If the arguability component is satisfied, the Court moves on to consider whether the proposed appeal raises questions of “public importance”.^[13]

The Court applies two “perspectives” to the public importance question:

• First, the Court asks who “would be affected by a disposition of the question and how they would be affected”. The more people affected by the resolution of the proposed appeal, the more the issues in question meet the public importance standard;^[14] and
• Second, the Court considers the “impact which the decision will have on the development” of Ontario jurisprudence. It asks whether the proposed appeal will lead to the “development, progress, coherence, stability and predictability of the law and thus the law’s ability to deliver justice in Ontario”.^[15]

These two inquiries operate in tandem and may overlap, both with each other and with the arguability requirement. 

As the Court stated, “what makes a question arguable may also inform whether the question is one of public importance”.^[16]

3. The Same Inquiry Applies Whether the Divisional Court Exercises Original or Appellate Jurisdiction.

The last major point is that whether the Divisional Court was exercising original jurisdiction (i.e., by hearing an application for judicial review for the first time) or appellate jurisdiction (i.e., by hearing an appeal from a tribunal decision, for example), this factor alone does not merit distinct treatment under the leave-to-appeal framework, nor does it require a discrete test separate and apart from the Knauff methodology.

In other words, the Knauff analysis applies to Divisional Court Orders , whether the Court of Appeal would hear the proposed appeal as a first or second appeal of an original decision.

The number of times a case has been “rehashed” may bear on the public importance inquiry, but only within the Knauff framework itself.

The same reasoning applies to whether the Divisional Court’s decision is an interlocutory or final order. According to the Court, this is just “one of a number of factors to be considered in deciding whether there is an arguable question of public importance within the updated framework”.^[17]

Towards a Holistic Analysis

Knauff represents an effort by the Court of Appeal to add clarity and substance to the Sault Dock methodology.

By focusing less on categorical factors that parties must mechanically address in every leave motion, and instead emphasizing the broad themes of “arguability” and “public importance”, Knauff reminds those seeking leave to appeal that the Court’s inquiry remains a holistic one.

In short, does the proposed appeal raise questions for the Ontario public that are arguable and will have an impact beyond the parties?

If a party fails to address these general concerns, the Court of Appeal will deny leave to appeal.

Marco P. Falco is a Partner in the Litigation & Dispute Resolution Group (Appellate Litigation and Judicial Review) at Torkin Manes LLP. You may email Marco about your appeal at mfalco@torkin.com. A conflict search must be conducted before your matter is discussed.

1. Knauff, supra at para. 51.

2. Knauff, supra at para. 39.

3. Knauff, supra at para. 42.

4. Knauff, supra at para. 43.

5. Knauff, supra at para. 44.

6. Knauff, supra at para. 38.

7. Knauff, supra at para. 34.

8. Knauff, supra at para. 34.

9. Knauff, supra at para. 34.

10. Knauff, supra at para. 35.

11. Knauff, supra at paras. 5 & 32.

12. R.S.O. 1990, c.C.43 at ss. 6 & 19 [“CJA”].

13. CJA, supra at s.6(1)(a).

14. [1973] 2 O.R. 479 (C.A.).

15. See West Whitby Landowners Group Inc. v. Elexicon Energy, 2024 ONCA 910; Davis v. Aviva General Insurance Company, 2024 ONCA 944.

16. Knauff v. Ontario (Human Rights Tribunal), 2026 ONCA 653 [“Knauff”].

17. Knauff, supra at para. 27.