With ~30 Justices on the Ontario Court of Appeal, there are bound to be some differing perspectives. In fact, that is precisely what we expect in a robust, experienced, high appellate court whose mandate is meant to reflect the diverse values and perspectives of our community. But rarely do we see so starkly the contrast between different approaches as we did with three, three-member panel decisions released in December 2024, which are discussed below.
On December 13, 2024, Justices Brown, Huscroft and Miller agreed in West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910 (Ont. C.A.) [West Whitby] that it was time for “an updated and more flexible approach” (at para. 16) to the stringent test for leave to appeal a decision of the Divisional Court as set out in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, [1973] 2 O.R. 479 (C.A.), 1972 CanLII 572 [Sault Dock]. In a leave to appeal decision of the Divisional Court (2022 ONSC 1035), which had dismissed a judicial review of an Ontario Energy Board decision, the Court of Appeal for Ontario held that the Supreme Court of Canada’s leave test—with appropriate modification—would be appropriate: “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). Indeed, “[t]he development of administrative law, and public law more generally, will often require the oversight of the Court of Appeal for Ontario” (at para. 14). That aligns with the Court of Appeal’s role to “monitor, clarify and develop” the jurisprudence (at para. 12).
Yet in a decision released only ten days later on December 23, 2024, Justices Sossin, Madsen and Pomerance pulled back from the more expansive approach to leave suggested in West Whitby in their decision in Davis v. Aviva General Insurance Company, 2024 ONCA 944 (Ont. C.A.) [Davis]. The Divisional Court (2024 ONSC 3054) had dismissed an appeal of a License Appeal Tribunal decision regarding, inter alia, the causation step of the SABS accident test. That Court of Appeal panel was quick to clarify that the principles for leave to appeal as set out in Sault Dock remained unchanged (at para. 9). The Court of Appeal panel suggested that the West Whitby panel wanted to “highlight” rathe than change those principles (at para. 11). It clarified that if such a change to Sault Dock was to be contemplated, it would require a five-member panel of the Court of Appeal to hear the matter. Interestingly, counsel were not invited to provide submissions on the apparent “new” standard (at para. 8). The panel confirmed, quoting from Sault Dock, that “[m]atters coming before the Divisional Court in its appellate capacity are intended to be final” (Davis at para. 3). It was therefore appropriate to strictly apply the standard from Sault Dock.
But Davis was not the only December Court of Appeal decision to offer significant ‘push back’ against other approaches. In A.A. v. Z.M., 2024 ONCA 923 (Ont. C.A.), Justice Hourigan delivered a scathing dissent in a panel review motion of a single judge stay decision involving the return of a child to Bangladesh. Despite the significant deference to be provided to a motion judge in such a matter, given the discretionary balancing of factors involved, the majority of the panel set aside the order and granted the stay, finding that the motion judge erred in principle, inter alia. Justice Hourigan disagreed:
- “The majority’s analysis of this serious issue criterion is an exercise in micromanaging not deference” (at para. 45).
- “[I]f we are going to pay lip service to deference, perhaps the better course is to eliminate single judge motions and have litigants proceed directly to a panel of this court” (at para. 61).
- “[T]he majority’s reasons are unprecedented, wrong in law, and internally inconsistent. They represent a fundamental misunderstanding of the role of a panel reviewing an order of a single judge” (at para. 62).
Interestingly, Justice Masden, who wrote the decision in A.A. v. Z. M. (which is not surprising given her extensive background in family law), concurred with the majority decision in Davis. Perhaps the factual context continues to drive the approach of the Ontario Court of Appeal in leave to appeal and review decisions.
For municipalities and other public entities which are often concerned about the development of the law in the public interest, there may be an opportunity to leverage the West Whitby decision on a leave to appeal a Divisional Court decision—so as to break from the “slavish adherence to Sault Dock’s ‘checklist’ approach” (at para. 14). Indeed, in West Whitby at para. 11, the court decided that “the heart of the consideration of an application for leave to appeal [is] 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’”, quoting from Sault Dock. Given the Davis decision, however, counsel seeking leave to appeal should turn their mind to whether there is an appropriate factual context to formally update the Sault Dock test—but do not forget to request a five-member panel of the Court of Appeal when doing so.
