The Role of Appellate Courts in Judicial Review Cases II: When Should Leave Be Granted?

In most Canadian jurisdictions, an unsuccessful party can appeal a judicial review decision as of right. In a previous post (see here), I discussed whether the appellant bears, or should bear, a ‘tactical burden’ to convince the appellate court that the first-instance judge got something wrong.

However, in two Canadian jurisdictions, the ability to seek judicial review is not automatic: in Quebec and Ontario, the unsuccessful party must seek leave from the appellate court.

In a sense, both the tactical burden and the leave requirement function as filtering mechanisms, sorting the less meritorious and legally interesting cases from those that warrant additional scrutiny. Quebec’s leave requirement is well settled (see e.g. Devimco Immobilier inc. c. Garage Pit Stop inc., 2017 QCCA 1, at para. 7) but the appellate leave requirement has recently been the subject of controversy in Ontario, where judicial reviews are conducted by the Divisional Court, which is largely a specialist administrative law court (though it also hears appeals from various first-instance decisions).

Note here that I am not concerned with the test applied for leave to appeal from a regulatory decision to a court on a question of law. In numerous statutory schemes (especially in Alberta and federally), the appellant must demonstrate an ‘arguable case’ (see further here). It also applies to immigration decisions, which can only be challenged with leave of the Federal Court. This test is well settled — my focus here is, rather, on the different test applicable when an appellate court determines whether to grant leave to appeal a judicial review decision.

Ontario’s test for leave was set down many years ago in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479. The court began with a statement of general principle:

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.

From this general principle, the court suggested that there are two categories of case in which leave ought to be granted. One was a set of cases which would further “the development of the jurisprudence of Ontario” because their resolution transcends the particular dispute between the parties: “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”. The court gave an illustrative but non-exhaustive list of such cases:

(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 other was a set of 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”.

We might say, then, that Sault Dock envisages (a) questions of principle and (b) a catch-all special circumstances category.

In West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910, a panel of the Court of Appeal departed from the usual practice of not giving reasons on leave applications to express its worry that Sault Dock’s teachings on questions of principle have gained the status of “eternal pronouncements carved in tablets of stone”, a phenomenon that causes “two unhealthy features [to] work their way into the resulting jurisprudence” (at para. 8).

First, “the flexibility of the canonical decision is forgotten in favour of a multi‑factor test that can be applied easily by rote” (at para. 9). The panel intimated that underlying principles have been ignored in favour of a checklist approach focused on the four types of case mentioned in Sault Dock. Rather, attention should be focused on the raison d’être of the appellate function: “it is the responsibility of the Court of Appeal for Ontario to monitor, clarify, and develop the jurisprudence of Ontario” (at para. 12). Accordingly, the following test should be applied:

Is the question on which leave is sought one that, by reason of its public importance, the importance of any issue of law or mixed law and fact involved, or for any other reason is of such a nature or significance that it ought to be decided by the Court of Appeal for Ontario? (at para. 13)

Second, the relative age of Sault Dock undermined its claim to “slavish adherence”:

It’s an old decision. So old, in fact, that it pre-dates the enactment of the Canadian Charter of Rights and Freedoms. The Charter now plays an important role in judicial review litigation before the Divisional Court, from which there is no right of appeal. The development of administrative law, and public law more generally, will often require the oversight of the Court of Appeal for Ontario (at para. 14).

Accordingly, the panel granted leave to appeal in a case about the reviewability of regulatory opinions (rather than decisions, strictly speaking) which did not fit easily into any of the categories on the Sault Dock list.

Not long after, however, another panel of the Court of Appeal reasserted the primacy of Sault Dock in Davis v. Aviva General Insurance Company, 2024 ONCA 944. Sossin JA explained that the principles governing leave applications “have not changed” (at para. 9). He saw West Whitby as a “helpful” discussion of the Sault Dock principles rather than as a modification:

In describing the proper approach to leave applications, the panel excerpted the passage from Sault Dock reproduced above dealing with the impact a question may have on the jurisprudence of Ontario and stated, at para. 11, “Therein lies the heart of the consideration of an application for leave to appeal: not whether the issue falls into some pigeon-hole on a checklist, but ‘the impact which the decision on the question will have on the development of the jurisprudence of Ontario.’” In other words, it appears that the West Whitby panel intended to highlight rather than change the principles governing leave motions from the Divisional Court to the Court of Appeal.

Second, where parties (or the court) seek to revisit a precedent-setting decision of this court with the possibility of changing the law, a five-judge panel of the court may be requested or convened, so that full argument on the proposed change, and its implications, can be put before the court: see s. 13 of the Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario. No such request for a five-judge panel was made in the context of West Whitby (at paras. 10-12).

Interestingly, Sossin JA did not grant leave to appeal because the matter — whether a slip and fall in a parking lot on the way to unlock one’s car entitles the injured party to statutory car accident benefits — was “largely fact-specific” and did not involve any questions of legal principle (at para. 17). It may be significant that Davis came to the Divisional Court by way of a statutory appeal from the Licence Appeal Tribunal, meaning that the highly deferential standard of palpable and overriding error applied to all aspects of the Tribunal’s decision save for extricable questions of law.

The controversy has not yet ended: in Knauff v. Ontario (Human Rights Tribunal), 2025 ONCA 345 Fairburn ACJ convened a five-judge panel to hear argument on whether Sault Dock is still good law.

For my part, I think the four Sault Dock categories no longer capture the essence of important public law cases. Few will involve pure questions of statutory interpretation or even the propounding of some “general rule or principle of law”. Most judicial review cases involve the application of the context-sensitive standards of reasonableness and procedural fairness. Sometimes, the application of those standards will be legally-suffused, for instance because the analysis of reasonableness depends largely on the governing statutory scheme or the principles of statutory interpretation, and may be analogous to a “general rule or principle of law”. But in many cases, the key question may be the extent to which an administrative decision-maker grappled with a key submission, addressed the harsh consequences of its decision on the individual concerned, or took the interests of the individual into account in calibrating the required level of procedural fairness — these are not particularly legally-suffused questions, but they are nonetheless questions of principle on which the Court of Appeal’s guidance may well be very useful for the Divisional Court and administrative decision-makers alike; indeed, the issue in West Whitby about the scope of judicial review, whilst heavily influenced by the factual context and thus not involving the propounding of a “principle of law” as such, raises an important question of principle.

By contrast, in a factually-suffused case where the only question is whether the Divisional Court accurately applied settled appellate guidance on the application of the reasonableness standard and the principles of procedural fairness, the case for leave is unlikely to be strong. Many cases will be like Davis, where the principles are settled and the only question is whether they have been appropriately applied. Where a panel of experienced first-instance judges has carefully considered the relevant principles and their application, there is unlikely to be any issue of general principle at play. Moreover, the chances that an appellate court will take a different view are slim, engaging a concern for the efficient and effective use of scarce judicial resources.

What I wrote in my previous post on the issue of the ‘tactical burden’ can be adapted for this context:

Questions of principle relating to the methodology of reasonableness review, or the content of the record on judicial review, would be examples of the types of legally suffused issue upon which, in my view, [leave ought to be granted]…Where the application of the reasonableness standard is heavily influenced by the factual setting and surrounding context, [leave is less likely to be appropriate]. Here, indeed, where a [Divisional] Court [panel] has carefully considered all arguments and applied the applicable standard of review to a settled area of law without any obvious deviation from the required methodological approach, the likelihood of error is relatively low and, therefore, it is up to the appellant to demonstrate why the first-instance judge was wrong.

The bottom line for me is that Sault Dock could usefully be refreshed, so that the test speaks to a contemporary audience, but that some division of labour between the Divisional Court and the Court of Appeal remains entirely appropriate, as envisaged by the enduring touchstone of Sault Dock, that it is the responsibility of the Court of Appeal to develop the jurisprudence of Ontario.

My impression is that the Quebec Court of Appeal hears many more administrative law cases than the Ontario Court of Appeal, but this is an impression only, and it is clear that the Quebec Court of Appeal is quite rigorous in applying the ‘interests of justice’ test and will not grant leave lightly; that said, Quebec does not have a specialized judicial review court, so there may be more variability in first-instance administrative law decisions, leading (all things considered) to a slightly higher appellate case load designed to even out the variance. In the end, though, I suspect the test applied in Quebec is animated by the same concern underpinning Sault Dock, namely ensuring that the appellate court is responsible for the development of legal principle in the province.

This content has been updated on August 6, 2025 at 14:15.