Fridays with Rogers Partners
At our weekly meeting, Jack Haddad discussed the recent decision in Knauff v. Ontario (Human Rights Tribunal), 2026 ONCA 653, in which a five-justice panel at the Court of Appeal for Ontario was asked to reconsider the test to grant leave to appeal a decision of the Divisional Court from the 1972 decision in Re Sault Dock.
The Sault Dock test is a three-part test. First, to what degree would a decision impact the “jurisprudence of Ontario”? Second, is the question arguable and might merit leave? Sault Dock provided four non-exhaustive examples: the interpretation of a regulation or statute including constitutionality; clarifying or interpreting a principle of law; interpreting a municipal by-law of public importance; and interpretation of an agreement where the issue involves a question of public importance. The third part was a residual category for special circumstances, such as circumstances making the appeal of public interest, preventing a miscarriage of justice, or to correct a clear error.
The Reformulated Test
Writing for the panel, Justice Zarnett found the “essential message” of Sault Dock is good law, but changes to Divisional Court operations, inflexible interpretation, under-elaboration, and uncertainty necessitated an updated framework. The new framework asks two questions, and applies to all appeals from Divisional Court, not just appeals from its appellate jurisdiction:
- Is the appeal question arguable in that there is a real and debatable question, and;
- Is the appeal question of public importance with the breadth or depth of the interests affected and the significance of the question to the law of Ontario.
Analysis
Under arguability, Justice Zarnett held that the prong does not require the appeal to necessarily succeed, but there must be a real issue that can be then assessed for public importance. If there is no arguable question, there cannot be any public importance, and the analysis ends.
Examples of questions that are not arguable include issues raised for the first time, decisions with a high level of deference, or issues that have become moot. Arguable questions include a failure to apply correct law, a failure to apply the required standard of review, or if general principles needed to be reconsidered or reviewed. General principles may include constitutional issues, novel issues without authoritative guidance, adequacy of reasoning issues, a dissent in the decision, or other commentary.
Under public importance, there are two perspectives for granting leave. The first perspective is if the decision affects a broader category of persons, and how fundamental the issue is. The second perspective is about the impact on the development of Ontario jurisprudence.
Justice Zarnett also highlighted how issues in this second prong overlap with arguability. for instance, a constitutional or novel issue that justifies its arguability may also indicate a high level of public importance. Justice Zarnett folded in the “special circumstances” aspect of the original test, because these were inherently issues of public importance.