Joining Battle: Preparing to Determine the Test for Leave to Appeal (Or, the Fate of Re Sault Dock)

A case scheduled for fall 2025 before the Ontario Court of Appeal will presumably address the appropriate test for granting leaves to appeal (see Knauff v. Human Rights Tribunal of Ontario (Div. Ct.) (“Knauff“). The resulting decision should tell us whether parties seeking leave to appeal from the Divisional Court should follow West Whitby Landowners Group Inc. v. Elexicon Energy Inc. (Ont. CA) (“West Whitby”) or Davis v. Aviva General Insurance Company (Ont. CA) (“Davis“).

In West Whitby, a panel composed of Brown, Huscroft and Miller JJ.A. questioned whether Re Sault Dock Co. Ltd. and City of Sault Ste. Marie (“Re Sault Dock“) should continue to be the test because courts now apply it by rote, instead of recognizing its flexibility and because of its age (pre-Canadian Charter of Rights and Freedoms). Within a week, the panel in Davis (Sossin, Madsen and Pomeranz JJ.A.) downplayed that the West Whitby decision had deviated to any great extent from Re Sault Dock and maintained that, indeed, the same decision could have been reached applying Re Sault Dock, which as the panel explained, can be applied flexibly. Furthermore, had there been any intention to change the test, it would have been appropriate to have assigned a five-judge panel.

In my Slaw post on the tussle between West Whitby and Davis, “Tension on the Ontario CA: Thwarting a Judicial Coup?“, I suggested that West Whitby “gives rise to speculation that the Court of Appeal intended to intrude to a greater extent into the Divisional Court’s jurisdiction and thereby potentially to undermine deference for specialized tribunals’ decisions”. In my view, the outcome of the Knauff case has the potential to confirm the recognition of expertise in the Divisional Court or to restructure the process for judicial consideration of administrative law in Ontario.

In Knauff, the Divisional Court dismissed Adam Knauff’s request that it quash decisions of the Ontario Human Rights Tribunal (“the Tribunal”) relating to his claim that his employer had discriminated against him on the basis of what he said was the “creed” of “ethical veganism”.

Prior to the Divisional Court’s hearing of the matter, the parties had reached a settlement that included a provision to the effect that although the parties had settled the question of discrimination against Knauff and other related matters, Knauff still wanted a decision from the Tribunal about whether ethical veganism is a protected ground under the Ontario Human Rights Code. The Tribunal held it was not. Knauff sought judicial review of that decision. The Divisional Court determined the matter was moot, since it had been resolved, but that it remained within its discretion to hear the matter. Considering that the case did not satisfy the criteria for exercising its discretion, it dismissed the application for judicial review. Knauff seeks leave to appeal from the Divisional Court’s decision.

In Knauff v. Ontario (Human Rights Tribunal), Zarnett J.A. (Case Management Judge) of the Ontario Court of Appeal explained that Knauff had indicated in his motion for leave to appeal from the Divisional Court that “he intended to ask the Court to clarify the test for leave to appeal from the Divisional Court and to that end, requested that this leave motion be heard by a five-judge panel”. Justice Zarnett stated that Fairburn A.C.J.O. had directed that the application for leave be heard by a five-person panel. Justice Zarnett’s endorsement directed the following: the hearing, to be heard in fall 2025, is to be an oral hearing, while requests to intervene shall be heard in writing ; he also specified relevant dates for intervention requests.

The Knauff hearing in the fall will clarify the test for leave to appeal, thrown into some confusion by West Whitby. It will provide an opportunity, with the five-person panel Davis reminded is necessary to abandon precedents, to clarify whether Re Sault Dock remains the test or whether the test for determining whether to grant leave to appeal has changed and with it the treatment of administrative law in Ontario .