What You Now Need to Know About Seeking Leave to the Ontario Court of Appeal

Since 1972, the Ontario Court of Appeal has effectively applied the same test for parties wishing to seek permission, or “leave”, to appeal to the Court in civil matters. 

Because reasons for decision are typically not provided on a motion for leave to appeal, the principles set out in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, [1973] 2 O.R. 479 (“Sault Dock”), remain one of few instances in which the Court has shed light on the analysis it applies in deciding whether to exercise its appellate jurisdiction.

At the end of 2024, however, the Court released two decisions, simultaneously recognizing that while the reasoning in Sault Dock is dated, its foundational principles remain.

The Sault Dock Factors

Broadly speaking, the Court of Appeal has statutory jurisdiction to hear civil appeals from a final order of the Superior Court above a certain monetary amount, from a decision of the Divisional Court as of right where another statute so provides, and, otherwise, from an order of the Divisional Court, on a question that is not a question of fact alone, with leave of the Court of Appeal: Courts of Justice Act, R.S.O. 1990, c.C.43 at s.6(1).

The decision in Sault Dock derives from a time when the Ontario Divisional Court had just been created and had taken over appellate jurisdiction that was previously exercised by the Court of Appeal. Presumably, the genesis of the Divisional Court was intended to alleviate the administrative burden on the Court of Appeal, as Ontario’s population grew.

The thrust of Sault Dock was to restrict a further appeal to the Court of Appeal from the Divisional Court:

Consideration of the statutory enactments concerning the Divisional Court, particularly those restricting the appeals from the order 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…

Sault Dock requires that, in addition to the proposed appeal involving more than a question of fact alone, the moving party must show that it involves:

1. The interpretation of a statute or regulation of Canada or Ontario, including its constitutionality;
   
2. The interpretation, clarification or propounding of some general rule or principle of law;
   
3. The interpretation of a municipal by-law where the point in issue is a question of public importance;
   
4. The interpretation of an agreement where the point in issue involves a question of public importance.
   

In addition, the Court may consider “special circumstances” where the proposed appeal involves matters of public importance or where the “interests of justice” require that leave to appeal be granted. 

This may include situations where the introduction of new evidence is required, there was an “obvious misapprehension of the Divisional Court of the relevant facts”, or the lower Court showed a “clear departure from established principles of law resulting in a miscarriage of justice”.

The factors from Sault Dock, however, do not constitute a comprehensive list of circumstances in which leave to appeal may be granted. 

The Court also held that, broadly speaking, a mere error by the Divisional Court in its decision or order would be insufficient to meet the test for leave.

Since Sault Dock, the Court has offered brief insights into how the test should be applied, signalling an evolution in the thought-process governing leave motions since the creation of the Divisional Court in the 1970s.

In 2010, for example, the decision Ontario (Minister of Transportation) v. 1520658 Ontario Inc., 2010 ONCA 32, streamlined the Sault Ste. Marie factors, affirming that the Court considers the following when deciding whether to grant leave to appeal from a Divisional Court Order:

1. Whether the Divisional Court exercised appellate jurisdiction (in which case the applicant was seeking a second appeal) or whether the Divisional Court was sitting as a court of “original jurisdiction”;
   
2. Whether the appeal involves the interpretation of a statute or regulation, including its constitutionality;
   
3. The interpretation, clarification or propounding of some general rule or principle of law; and
   
4. 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: see Re United Glass and Ceramic Workers of North America, [1973] 2 O.R. 763; Iness v. Canada Mortgage and Housing Corp. (2002), 62 O.R. (3d) 255; Thirlwell v. College of Physicians and Surgeons of Ontario, 2022 ONCA 494; Windrift Adventures Inc. v. Ontario (Animal Care Review Board), 2024 ONCA 89.

Time to Revisit the Sault Dock Methodology?

The test above from Sault Dock was applied repeatedly by the Court of Appeal for decades.

In December, 2024, however, the Court issued its decision in West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910 (“West Whitby”).  

West Whitby cast doubt on the mechanical application by lawyers and parties of the Sault Dock factors. The Court observed that, over the years, the “multi-factor test” from Sault Dock was being applied “easily by rote”. 

This, in the Court’s view, represented a serious error. The Court in Sault Dock did not intend to provide an exhaustive list of considerations which the Court of Appeal would apply perfunctorily to a given case in deciding whether to grant or deny leave to appeal.  Instead, Sault Dock factors represent areas of consideration, not a thorough and comprehensive checklist.

Accordingly, the crux of any motion for leave to appeal is not “whether the issue [at hand] falls into some pigeon-hole on a checklist”, but, as Sault Dock established, what the impact of the decision in question will have “on the development of the jurisprudence in Ontario”.

In other words, if the proposed appeal relates only to the parties and will have no ultimate effect on the development of Ontario law generally, leave to appeal should be denied.

Second, Sault Dock is an “old decision” which pre-dates the Canadian Charter of Rights and Freedoms. 

The Court in West Whitby suggests then, that if indeed Sault Dock imposes a rigid set of factors, this was interfering with the Court of Appeal’s ability to opine on public and administrative law issues. That is, if the test for leave is too stringent, the Divisional Court, not the Court of Appeal, is having the last say on public law issues in the Province.

Accordingly, West Whitby calls for an “updated and more flexible approach” to the test for leave – one which places primacy on the evolution of Ontario law and an appellate Court’s role in fostering that development.

But the Sault Dock Factors Are Still Relevant

Following the issuance of West Whitby, it appears the Court of Appeal had concerns that its new flexible approach to leave motions could result in confusion as to whether the Sault Dock factors still applied.

Enter the Court of Appeal’s latest decision, Davis v. Aviva General Insurance Co., 2024 ONCA 944 (“Davis”).

In Davis, a differently-constituted panel of the Court of Appeal affirmed that the principles established in Sault Ste. Marie were in fact unchanged following West Whitby.  

That is, West Whitby fit “squarely within the Sault Dock framework”. In West Whitby, the Court reiterated the principle from Sault Dock that the main concern on a leave application was not whether the case fit within a list of factors, but the effect the decision will have on the development of Ontario case law. That being said, the Court in West Whitby was careful to note that the factors set out in Sault Ste. Marie remained relevant.

Further, if West Whitby had intended to change the law governing motions for leave to appeal, that change could only be accomplished by a five-judge panel of the Court of Appeal, as set out in the Court of Appeal’s Practice Direction. Because West Whitby was only decided by a panel of three judges, it should only be viewed not as a fundamental change in the test for leave, but as a helpful discussion and elaboration of the Sault Dock principles. 

The Court in Davis left open the possibility of revisiting the test for leave, as circumstances dictate, by a five- judge panel of the Court.

So What is the Test for Leave from a Divisional Court Order?

The combined reasoning of West Whitby and Davis suggests an important refinement of the test for leave to appeal from Divisional Court Orders to the Court of Appeal:

1. Slavish adherence to the Sault Dock factors does not assist the Court in its analysis. While these factors may be argued on a motion for leave to appeal, they are not the only considerations or factors the Court can or should consider;
2. The primary goal of a motion for leave to appeal is to persuade the Court that there are issues of concern that will lead to the development of Ontario law.   Emphasis should be placed on questions of public importance to all Ontarians.  That being said, the test is not so stringent that serious errors of mixed fact and law will be ignored by the Court of Appeal simply because they may relate only the parties. The Court will exercise its leave jurisdiction to prevent miscarriages of justice; and
3. Particularly in administrative and public law matters, the Court of Appeal needs more flexibility to intervene. Otherwise, the Divisional Court remains the last word in Ontario on important public law issues. To the extent that Sault Dock restricts the Court’s ability to involve itself in public law questions, it needs to adopt a more flexible perspective and willingness to grant leave to appeal.

   The principles above represent an important clarification of the Court of Appeal’s mindset when considering motions for leave to appeal from orders of the Divisional Court. 

Whether, in practice, they will significantly alter the nature of arguments for and against leave to appeal remains to be seen.

Marco P. Falco is a Partner in the Litigation Department at Torkin Manes LLP who focuses on civil appeals and applications for judicial review. You may contact Marco about your motion for leave to appeal, or otherwise, at mfalco@torkin.com. Please note that a conflict search must be conducted before any details of your matter can be discussed.