Sault Dock, take two (and three): Ontario Court of Appeal clarifies its clarification of leave to appeal test

In late December 2024, the Ontario Court of Appeal clarified the applicable test for leave to appeal from the province’s Divisional Court, which the Court of Appeal had only recently discussed at length earlier that month. In Ontario, “leave” – i.e. permission to appeal – is required for the Court of Appeal to hear these appeals.   

The Court of Appeal’s discussion and prompt clarification of this leave to appeal test in Ontario have already generated a flurry of comments and questions from appellate lawyers.  

In this update, we summarize the key takeaways for the test going forward. 

How things used to be 

For many years, the Court of Appeal used a multi-factor test to assess whether leave to appeal should be granted from Divisional Court decisions. In particular, the court would consider whether a proposed appeal involved: 

• the interpretation of a statute or regulation including its constitutionality, or the interpretation of some general rule or principle of law;  
• the interpretation of a municipal by-law where the point in issue is a question of public importance; and 
• the interpretation of an agreement where the point in issue involves a question of public importance.  

This multi-factor test originated as examples provided in a 1973 decision known as Sault Dock. In that case, the court stated as a general rule that decisions of the Divisional Court in its appellate capacity are intended to be final and Court of Appeal reviews of those decisions are to be exceptions to this general rule that they terminate at the Divisional Court. Over time, the examples calcified into a rigid test.  

Now, the Court of Appeal has directed parties to return to Sault Dock, after lamenting that its original flexibility has been lost – forgotten in a checklist. It highlighted the “heart of the consideration” as being the impact that the decision on the question will have on the development of the jurisprudence of Ontario.

What you need to know going forward

The court says the approach it will take is similar to what the Supreme Court of Canada does for applications for leave to appeal – i.e. it will ask whether the question on which leave is sought is one that is of such a nature or significance that it ought to be decided by the Court of Appeal.

The Court of Appeal is adamant that technically, there has been no change to the law because we are not deviating from Sault Dock, but returning to it. Regardless, in practice, there is arguably more flexibility now to make arguments for leave to appeal, without needing to fit into rigid categories. Whether that will result in leave being granted in more cases remains to be seen.

Finally, in its discussion of the leave to appeal test, the court emphasized its responsibility for oversight of the development of administrative and public law in Ontario, which may signal the Court of Appeal will be more receptive to motions for leave to appeal in public and administrative law cases going forward.