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Appeals - Leave to Appeal to the Court of Appeal [CJA 6(1)(a)]. Davis v. Aviva General Insurance Company
In Davis v. Aviva General Insurance Company (Ont CA, 2024) the Ontario Court of Appeal re-considers the recent leave to appeal case of West Whitby Landowners Group Inc. v. Elexicon Energy Inc. (Ont CA, 2024), where the court questions the long-standing test from Re Sault Dock Co. Ltd. and City of Sault Ste. Marie (Ont CA, 1972). The court here finds the Sault Dock test not to have changed:APPLICABLE TEST FOR LEAVE TO APPEAL
[2] The practice of this court is that decisions on leave to appeal motions generally are not accompanied by reasons. I depart from that practice here in order to address a question of uncertainty that has arisen in light of comments made by a panel of this court in granting leave to appeal in West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910 (“West Whitby”).
[3] The principles governing motions for leave to appeal decisions of the Divisional Court were set out succinctly in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479 (C.A.) (“Sault Dock”). The court explained those principles in the following passage:Upon the creation of the Divisional Court there was conferred upon it with respect to a specified category of cases the appellate jurisdiction which hitherto had been exercised by the Court of Appeal. Appeals from an appellate decision of the Divisional Court to the Court of Appeal are limited by providing that an appeal lies only:a. with leave
b. on a question that is not a question of fact alone. 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.
The magnitude of the amount involved is not of significance in deciding whether or not leave should be granted. A case involving a comparatively small sum of money may well be of more importance to the litigants than is a vastly greater amount to the contestants in another action. Every decision of a Court is of importance to the parties affected but when no appeal is allowed on questions involving fact alone, then the importance of the decision to the individual is not to be the sole or perhaps the paramount consideration. It is rather the impact which the decision on the question will have on the development of the jurisprudence of Ontario. 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.
While it may not be desirable to attempt to formulate a catalogue of the circumstances under which leave to appeal would be granted by this Court, to carry out what is considered to be the purpose of the Legislature, the Court of Appeal should be satisfied before granting leave that the matter will present an arguable question of law or mixed law and fact requiring of the Court consideration of matters such as the following:(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 Court will of course consider also 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.
The outlining of the foregoing criteria is not to say that in cases in which there is clearly an error in a judgment or order of the Divisional Court, it is not the duty of the Court of Appeal to grant leave so that it might correct the error. However, the possibility that there may be error in the judgment or order will not generally be a ground in itself for granting leave. [4] In West Whitby, the panel underscored, in the passage from Sault Dock reproduced above, the importance of assessing the impact of a decision on the jurisprudence of Ontario. That panel likened this aspect of Sault Dock to the Supreme Court of Canada’s distinct approach to leave to appeal applications.
[5] By contrast, the panel criticized the undue attention which, in their view, has been placed on the four categories enumerated to illustrate matters on which an arguable question must be established in order to meet the threshold for leave.
[6] Applying Sault Dock, the panel in West Whitby found the threshold for leave in the motion before them was met. In their view, the decision of the Divisional Court dismissing a judicial review application from an Ontario Energy Board decision dealing with the interpretation of Distribution System Code, which the Board issued under the Ontario Energy Board Act, 1998, S.O. 1998, c. 15, Sched. B. had significant impact beyond the parties.
[7] The panel in West Whitby also offered its perspective on how long the Sault Dock framework has been in place and why it is important to bring an “updated and flexible” approach to the leave framework.
[8] The question now to be considered is whether the principles governing leave applications before the Court of Appeal have changed in light of West Whitby. This question, of course, is important. If we were of the view the principles have changed, it would be necessary to permit the parties to make further submissions on their leave application in light of the new standard.
[9] In my view, the principles governing leave applications have not changed. I reach this conclusion for two reasons.
[10] First and most importantly, I see the approach taken by the panel in West Whitby as fitting squarely within the Sault Dock framework, as that panel interpreted Sault Dock.
[11] 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.
[12] 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.
[13] For these reasons, in my view, West Whitby should be read as a helpful discussion and application of the Sault Dock framework, which continues to be the source for the principles governing motions for leave to appeal from the Divisional Court to the Court of Appeal. I would leave for another day and an appropriate context the question of whether there is any need to revisit that framework before a five-judge panel. . West Whitby Landowners Group Inc. v. Elexicon Energy Inc. [IMPORTANT]
In West Whitby Landowners Group Inc. v. Elexicon Energy Inc. (Ont CA, 2024) the Ontario Court of Appeal granted leave to appeal, and in the process practically expands the conventional long-standing interpretation of the leading case of Re Sault Dock Co. Ltd. and City of Sault Ste. Marie (Ont CA, 1972). Essentially, on a leave to appeal application, the court should now examine "the impact which the decision on the question will have on the development of the jurisprudence of Ontario":[7] The respondents begin their opposition to the Landowners’ leave application by pointing to the brief endorsement of this court in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479 (C.A.). They remind this panel that in applying Sault Dock the view has been taken that decisions of the Divisional Court – whether in the exercise of its original or appellate jurisdiction – are intended to be final and not reviewable by this Court save in exceptional cases. Over the years, the Sault Dock decision has been regarded, by some, as establishing a stringent test for leave to appeal.
[8] As often happens when certain judicial decisions take on the reputation as eternal pronouncements carved in tablets of stone, two unhealthy features work their way into the resulting jurisprudence.
[9] First, the flexibility of the canonical decision is forgotten in favour of a multi‑factor test that can be applied easily by rote. The panel in Sault Dock recognized that “it may not be desirable to attempt to formulate a catalogue of the circumstances under which leave to appeal would be granted by this Court”, as any such endeavour carries the risk of a judicial walk on thin ice. Which, no doubt, is why that panel described its list merely as suggesting “matters such as the following”, a qualification that has been forgotten over the ensuing years.
[10] More significantly, before suggesting a list “such as the following”, the panel identified the key consideration underpinning any decision to grant leave to appeal. Section 6(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that an appeal from an order of the Divisional Court lies, with leave, “on a question that is not a question of fact alone”. The Sault Dock panel noted the consequence of that statutory limit: “Every decision of a Court is of importance to the parties affected but when no appeal is allowed on questions involving fact alone, then the importance of the decision to the individual is not to be the sole or perhaps the paramount consideration.” The panel then continued:It is rather the impact which the decision on the question will have on the development of the jurisprudence of Ontario. 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. [Emphasis added.] [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.”
[12] Of the three levels of court in Ontario, it is the responsibility of the Court of Appeal for Ontario to monitor, clarify, and develop the jurisprudence of Ontario.
[13] In discharging that responsibility, the lens this court should bring to any question brought before it for leave mimics, with appropriate modification, the lens employed by the Supreme Court of Canada when considering its leave applications, namely: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?
If so, leave to appeal should be granted. [14] The second unhealthy feature of continuing a slavish adherence to Sault Dock’s “checklist” approach is that it forgets the age of the Sault Dock decision. 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.
[15] Turning to the present case, there is no secret that both the federal and provincial governments are pursuing polices to promote much greater use of electricity in the economy. There is no secret that the Ontario government is pursuing an aggressive policy to support the construction of more residential accommodation, including subdivision projects such as those being pursued by the Landowners. Against that backdrop, the question of whether some decisions of the state actor responsible for regulating the allocation of costs associated with the greater use of electricity are immune from judicial review is one of great public importance.
[16] Applying an updated and more flexible approach to the leave application before us, the Divisional Court’s decision appears to insulate certain decisions of the Board from judicial review. This has impact well beyond the immediate parties in this case. It also has broader implications for the Ontario public and their economic interests. The questions on which the Landowners seek leave to appeal plainly merit consideration by this court. Iness v. Canada Mortgage and Housing Corp.
In Iness v. Canada Mortgage and Housing Corp. (Ont CA, 2002) the Court of Appeal considers criteria for a leave to appeal motion:[4] Iness is seeking leave to appeal to this court. Under s. 6(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, appeals from a decision of the Divisional Court will only be granted with leave on a question that is not a question of fact alone. The possibility that there may be an error in the judgment or order sought to be appealed will not generally be a ground in itself for granting leave. Matters considered in granting leave include: (a) whether the Divisional Court exercised appellate jurisdiction (in which case the applicant for leave is seeking a second appeal) or whether the Divisional Court was sitting as a court of original jurisdiction; (b) whether the appeal involves the interpretation of a statute or regulation including its constitutionality; (c) the interpretation, clarification or propounding of some general rule or principle of law; and (d) 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: Re United Glass and Ceramic Workers of North America (AFL-CIO-CLC), [1979] 2 O.R. 763 (C.A.); Sault Dock Co. v. Sault Ste. Marie (City), 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479, 34 D.L.R. (3d) 327 (C.A.).
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