Court of Appeal for Ontario Clarifies Test for Leave to Appeal from Divisional Court

In Knauff v. Ontario (Human Rights Tribunal), 2026 ONCA 653, a five-judge panel of the Court of Appeal for Ontario revisited the test governing motions for leave to appeal from decisions of the Divisional Court. While the Court ultimately preserved the key principles from the longstanding and foundational decision in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, it provided guidance on how the Court of Appeal should assess leave motions moving forward.

The decision resolves uncertainty that emerged in late 2024 after West Whitby Landowners Group Inc. v. Elexicon Energy Inc. appeared to suggest a more flexible approach to leave motions, while Davis v. Aviva General Insurance Company reaffirmed that Sault Dock continued to govern.

In Knauff, the Court of Appeal settled the debate. The result is not a new test, but a clearer articulation of the principles that will govern leave motions going forward.

Key takeaways

Knauff does not completely change the test for leave to appeal from the Divisional Court. It clarifies and confirms the following, among other things:

• arguability and public importance remain the two central considerations on a leave motion;
• arguability must be established before public importance is assessed;
• questions of fact alone cannot support leave;
• an arguable question may exist even where the Divisional Court correctly applied existing law, if the law itself warrants reconsideration, clarification, or development;
• arguability and public importance have overlapping features and are flexible and context-specific; and
• the same leave framework applies regardless of whether the Divisional Court was exercising original or appellate jurisdiction.

How leave motions were assessed before Knauff

For over 50 years, motions for leave to appeal from the Divisional Court have been governed by the framework set out in Sault Dock. The Court of Appeal considered the following question: does the proposed appeal raise an arguable question of law or mixed fact and law that is sufficiently important to the public and the development of Ontario law to warrant the Court of Appeal’s consideration?

In Knauff, the Court of Appeal acknowledged that the Divisional Court’s docket has changed significantly since Sault Dock was decided in 1973. The Divisional Court now hears a broader range of public, constitutional, and administrative law matters, and the Court of Appeal acknowledged that the leave framework must remain responsive to those developments.

That said, the Court by no means abandoned the Sault Dock framework, and indeed made that clear. The Court’s objective was seemingly to clarify and modernize the framework while preserving its key components, namely that leave should be granted only where the proposed appeal raises an arguable question of law or mixed fact and law of public importance.

The updated framework

The Court organized the leave analysis around two concepts, flowing directly from Sault Dock: arguability and public importance.

1. Arguability

The first question is whether the proposed appeal raises a real and debatable question of law or mixed fact and law.

The Court held that the proposed question for appeal, and the reason why it is arguable, must be identified before its potential public importance can be assessed. While a question may be important in a broader sense, it cannot support leave if it does not arise as a genuine and arguable issue in the case before the Court. The Court also reaffirmed that if a proposed appeal is only about factual findings, it is not arguable as the Court would have no jurisdiction to consider it under s. 6(1)(a) of the Courts of Justice Act.

Notably, the Court recognized that arguability is not limited to situations where the Divisional Court may have erred. Even where the Divisional Court has correctly identified and applied existing law, an arguable question may still arise if the law itself, or the underlying principles, warrant reconsideration, expansion, qualification, or clarification.

The Court identified “indicators” which may include:

• whether the issue is a constitutional one;
• whether the legal rule applied by the Divisional Court is out of step with developments in that area of the law;
• whether the issue is novel or in any event is one lacking in authoritative guidance from the Supreme Court of Canada or the Court of Appeal;
• the nature or adequacy of the Divisional Court’s reasoning on a debatable point;
• a dissent in the Divisional Court;
• conflicting case law from other jurisdictions; or
• compelling academic criticism and other legal commentary on the subject.

2. Public importance

If an arguable question exists, the Court must then determine whether it is of sufficient public importance to justify appellate review.

The Court explained that the inquiry reflects a balance between two competing considerations. On one hand, the legislature chose to require leave before a Divisional Court decision can be appealed. On the other hand, the Court of Appeal has an ongoing responsibility to “monitor, clarify, and develop the jurisprudence of Ontario”, which necessarily requires it to consider some matters already decided by the Divisional Court.

The Court identified two perspectives for assessing public importance.

The first focuses on who will be affected by the resolution of the issue and the significance of the interests at stake. The broader the group affected, and the more fundamental the interests involved, the more likely the question is to be one of public importance.

The second focuses on the impact of the issue on Ontario law itself. From this perspective, public importance may arise where a proposed appeal bears on the “development, progress, coherence, stability and predictability” of the law.

One framework for all Divisional Court decisions

Finally, the Court held that the same updated framework applies regardless of whether the Divisional Court was exercising original or appellate jurisdiction. The question in every case is whether the proposed appeal raises an arguable question of law or mixed fact and law of public importance.

Whether an issue has been considered more than once at lower courts “may bear on whether the question is actually an arguable one of public importance … but that is a consideration within, not outside of, the updated framework.”