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A New, Flexible Era for Leave to Appeal to the Court of Appeal for Ontario

In West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910 (“West Whitby”), the Court of Appeal for Ontario recalibrated the analytical framework governing applications for leave to appeal from the Divisional Court. Not only is the approach now more flexible, but the Court of Appeal also hinted that administrative and public law decisions may be more likely to be granted leave.

Background

The applicant, West Whitby Landowners Group Inc., is developing residential lots in the Whitby area. The respondent, Elexicon Energy Inc., is the local electricity distribution company through which the applicant would obtain a connection to the provincial electricity grid. A dispute arose between them regarding the allocation of costs for a substation to service the connection.

The applicant referred the cost allocation dispute to the Ontario Energy Board, which regulates electricity distribution companies. Unhappy with the conclusion of the Board, the applicant sought judicial review in the Divisional Court.

The Divisional Court dismissed the judicial review application, writing that “this Court does not have jurisdiction over the OEB’s opinion that the project is primarily an expansion because this was not the exercise of a statutory power of decision” (2022 ONSC 1035, at para. 4).

The applicant then sought leave to appeal to the Court of Appeal for Ontario.

The Test for Leave to Appeal

The Court of Appeal’s reasons in Re Sault Dock Co. Ltd and the City of Sault Ste. Marie, 1972 CanLII 572, 34 DLR (3d) 327 (C.A.) (“Sault Dock”) have been interpreted as establishing a stringent test for leave to appeal from the Divisional Court. This decision has taken to establish a rigid checklist of the circumstances in which leave to the Court of Appeal will be granted (at p. 329):

(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.

What has been forgotten, as highlighted by the Court of Appeal’s decision in West Whitby, is the Court’s indication that this list is not an “attempt to formulate a catalogue of circumstances under which leave to appeal would be granted”. The Sault Dock decision prefaced the list with: “matters such as the following” (at p. 329). Applying Sault Dock as a “checklist” is overly rigid and, considering the reasons in that case as a whole, not what the panel intended.

Instead, the heart of the consideration of an application for leave to appeal is “the impact which the decision on the question will have on the development of the jurisprudence of Ontario” (West Whitby, at para. 11, quoting from Sault Dock). The analytical framework mirrors, “with appropriate modifications”, the test for leave to the Supreme Court of Canada, 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? (West Whitby, at para. 13, emphasis added)

The Court of Appeal also hinted that administrative and public law cases are more likely to be granted leave to appeal from the Divisional Court: “The development of administrative law, and public law more generally, will often require the oversight of the Court of Appeal for Ontario” (West Whitby, at para. 14). 

Application

Applying the updated and more flexible approach to the application before it, the Court of Appeal concluded that leave should be granted. According to the Court of Appeal, the Divisional Court’s decision appears to insulate certain decisions of the Board from judicial review, which “has impact well beyond the immediate parties in this case” (West Whitby, at para. 16). The Court of Appeal reasoned that the questions on which the applicant sought leave to appeal “plainly merit consideration by this court” (West Whitby, at para. 16).

Key Takeaways

The Court of Appeal’s decision in West Whitby is an important contribution to the jurisprudence and provides helpful clarification of the test governing these applications. The Court of Appeal does not typically release reasons for decisions on applications for leave to appeal. Rather, it lists the applications in which leave was granted or denied on its website. At the time of writing, in 2024, only 22 of 109 leave applications were granted (about 20%).

There are two important takeaways from the West Whitby decision.

First, the approach to applications for leave to appeal from the Divisional Court is now more flexible, and mirrors the test for leave to the Supreme Court of Canada. Gone is the rigid checklist of Sault Dock. Instead, the Court of Appeal will consider the impact of the issue on which leave is sought on the development of the jurisprudence in Ontario.

Second, the Court noted that public law and administrative law “will often require the oversight of the Court of Appeal for Ontario” (West Whitby, at para. 14). As the Divisional Court is the venue for judicial review applications from a number of administrative tribunals, this comment by the Court of Appeal suggests that leave to appeal from such decisions may be more forthcoming.

Case Information

West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910

Docket: M53285

Date of Decision: December 13, 2024

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