53 Years in the Making: A New Framework for Leave to Appeal in Ontario

For over 50 years, the Court of Appeal for Ontario has used the same test to determine when to grant leave to appeal from a decision of the Divisional Court. The Court of Appeal considered this test in its recent decision of Knauff v. Ontario (Human Rights Tribunal), 2026 ONCA 653 and updated the applicable framework.

In Ontario, courts operate in a hierarchical system. The Court of Appeal for Ontario is the province’s highest court, with the only higher court in the country being the Supreme Court of Canada. The Divisional Court has a unique place in Ontario’s court system. It is both a court of original jurisdiction (as it is the first court to hear some types of matters such as applications for judicial review) and an intermediate appellate court (as it hears appeals from certain decisions of judges, associate judges, Small Claims Court, and administrative tribunals).

In order to appeal a decision from the Divisional Court to the Court of Appeal, you need permission (known as leave to appeal). For over 50 years, the leading decision on when to grant leave to appeal from the Divisional Court has been Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, [1973] 2 O.R. 479 (C.A.).

In 2024, there were two decisions from the Court of Appeal that raised questions about the continued application of the Sault Dock leave to appeal test. The Court of Appeal convened a five-judge panel to hear the request for leave to appeal in Knauff. The Court of Appeal typically sits in panels of three, but can, on rare occasions, sit in a panel of five. It is only a five-judge panel that can overrule a prior decision of the Court of Appeal.

In Knauff, the Court of Appeal offered updates to the Sault Dock framework. The key question “remains whether there is an arguable question of law or mixed law and fact that is of public importance warranting consideration”. This depends on both arguability (whether there is a real, debatable question between the parties) and public importance (the breadth and depth of interests affected and the significance of the question to the development of the law of Ontario). The public importance requirement is not confined to only the circumstances listed in previous cases, unlike how the Sault Dock test was being applied over the years. It is not a perfunctory analysis, but rather a comprehensive look at arguability and public importance. The Court of Appeal also clarified that there is no need to draw a distinction between cases in which the Divisional Court exercised original jurisdiction and those in which it exercised appellate jurisdiction – the same framework applies.

The updated guidance from the Court of Appeal has some interesting parallels to the test used by the Supreme Court of Canada, which focuses primarily on the public importance of the appeal. The Court of Appeal’s test is broader, in that it also considers the interests of the parties and whether there is a debatable question. The updated guidance from the Court of Appeal in Knauff offers helpful clarity around what litigants must establish in order to have their day in the Court of Appeal.