FACTS:
K is a forest firefighter employed by the Ministry of Natural Resources and Forestry. He is an “ethical vegan” and alleged that the Ministry discriminated against him by failing to provide vegan meals while he was on duty.
K commenced a complaint before the Human Rights Tribunal. The Tribunal ordered a preliminary hearing to determine whether ethical veganism constituted a “creed” under the Human Rights Code. Prior to the release of the Tribunal’s decision, K settled his claims against the Ministry, which would take effect after the decision on the preliminary hearing.
In its decision, the Tribunal determined that ethical veganism did not constitute a creed and therefore the Tribunal did not have jurisdiction over the claim.
K sought judicial review of the decision before the Divisional Court. The Divisional Court dismissed the judicial review application on the basis of mootness, given the settlement. The Court refused to exercise its discretion to determine the issue anyway.
K sought leave to appeal the Divisional Court decision to the Court of Appeal. In his leave application, K asked the Court to reconsider the test for leave to appeal. The Court of Appeal constituted a five-judge panel to reconsider its case law on the test for leave to appeal from the Divisional Court.
DECISION:
Application for leave to appeal dismissed (Zarnett J.A. (Thorburn, Favreau, Monahan, and Gomery JJ.A. concurring)).
The Court expressly considered the continued application of the test for leave to appeal from Re Sault Dock Co. Ltd. and City of Sault Ste. Marie.1 The Court determined that the “essential message” of Sault Dock should be maintained, but that the framework should be updated.
Under this “updated framework”, the key considerations are:
- Arguability; and
- Public Importance.
Under the “arguability” component, the Court will ask whether there is a real, arguable question of law or mixed fact and law arising from the circumstances of the case. This does not require a determination that the appeal will necessarily or even likely succeed. The arguability component takes into account the nature of the Divisional Court’s decision, such as whether it’s the type of decision that would attract a high level of deference. Indicators of arguability include: whether the issue is a constitutional one, whether the legal rule that the Divisional Court applied is out of step with developments in that area of law, whether the issue is novel, the nature/adequacy of the Divisional Court’s reasons, whether there was a dissent, conflicting case law from other jurisdictions, and compelling academic commentary on the subject.
Public importance looks at two perspectives. Firstly, who would be affected by the disposition of the question and how. The more people who would be impacted beyond the immediate parties, and the greater the nature of that impact, the more likely the court will be to grant leave. Secondly, how would the law of Ontario be affected by the disposition. This perspective focuses more on the legal importance of the question. Here, the court will consider the impact of deciding the question on the development of the jurisprudence of Ontario, including coherence, stability, and predictability of the law.
The arguability and public importance components are not watertight compartments and will often overlap. For example, what makes a question arguable may also inform whether it is of public importance.
This test applies in the same way to all applications for leave to appeal from the Divisional Court, regardless of whether that court was exercising original jurisdiction (as in applications for judicial review) or appellate jurisdiction.
Finally, the Court eliminated the residual “special circumstances” category for leave from Sault Dock. Any matter that might previously have been considered within this residual category should fit within the arguability and public importance framework.
Applying this updated framework, the Court dismissed the application for leave to appeal. The proposed appeal involved the application of the well-established and undisputed test for mootness. K was also only seeking to challenge the Divisional Court’s discretionary decision not to hear his case despite it being moot. As a result, the proposed appeal did not raise an arguable question of public importance.
COMMENTARY:
The significance of this decision is evident from the very fact that the Court of Appeal constituted a five-judge panel on a leave to appeal decision with the express purpose of reconsidering the Sault Dock test. By doing so, the Court put an end to the simmering debate in its jurisprudence regarding the ongoing applicability of Sault Dock.2
Ultimately, the Court of Appeal’s “updated framework” amounts to a tweaking and streamlining of the Sault Dock test, rather than a complete reimagining. Whether the proposed appeal has a chance of success and raises issues of importance beyond just the immediate parties to the case — which were important components of Sault Dock — remain the key aspects of the test. However, the Court of Appeal has now eschewed Sault Dock‘s list of categories (which many were viewing as a rigid or exhaustive list) in favour of a more holistic analysis with a number of relevant considerations.
At the end of the day, a party seeking leave to appeal will need to demonstrate that their appeal raises an arguable question of public importance.
Perhaps most relevant to administrative law is the Court’s clear determination that the same leave test applies, regardless of whether the Divisional Court was exercising original or appellate jurisdiction. This effectively eliminates the previously applied principle that leave should be easier to obtain on applications for judicial review, where the Divisional Court is the court of first instance (not including the decision of the administrative decision maker). This also means that there is no distinction when seeking leave from a judicial review decision as opposed to a decision on a statutory appeal from an administrative body. It will remain to be seen if this development ultimately results in leave to appeal being granted in fewer judicial review decisions.
- [1973] 2 O.R. 479. ↩︎
- See: West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910; Davis v. Aviva General Insurance Company, 2024 ONCA 944. ↩︎