It is not often that the Ontario Court of Appeal revisits and refines long-standing legal tests, but that is exactly what happened in West Whitby Landowners Group Inc. v. Elexicon Energy Inc.[1] (“West Whitby”).
The Court of Appeal elaborated on the risk of rigid application of historical precedent modernizing the long-standing, but now dated, and rigid approach to allowing appeals from Divisional Court set out in the 1972 decision in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie (“Sault Dock”).[2]
Background to the Decision
The West Whitby case arose from a dispute between a group of land developers (the “Landowners”) and their local electricity distribution company, Elexicon Energy Inc.[3] The Ontario Energy Board (“OEB”) had issued letters expressing its opinion on how to allocate certain multi-million-dollar costs for a substation connection.[4] The Landowners sought judicial review of these letters, hoping to challenge the OEB’s stance before the Divisional Court, but the Court dismissed their application for want of jurisdiction.[5]
When the Landowners sought leave to appeal to the Court of Appeal, they faced a high threshold as historically associated with Sault Dock.
Sault Dock set out of a list of matters whose appeal could be granted leave:
- the interpretation of a statute or regulation;
- the interpretation, clarification or propounding of a general rule or principle of law;
- the interpretation of a municipal bylaw on an issue of public importance; or
- the interpretation of an agreement on an issue of public importance.
And allowed a final catchall: Cases where “special circumstances” existed to justify leave being granted.
Under that older line of cases, leave to appeal was rarely granted unless the matter was of exceptional importance and would shape future jurisprudence.[6] Over time, the Sault Dock test had solidified into a perceived checklist—something the Court in West Whitby sought to correct.[7]
A Modern, More Flexible Approach
The Court of Appeal’s decision in West Whitby updates the test for leave to appeal from the Divisional Court. Justice Brown, writing for a unanimous panel, and quoting from the Sault Dock decision, emphasized that the central consideration is “the impact which the decision on the question will have on the development of the jurisprudence of Ontario” rather than a strict adherence to a rigid checklist.[8] Instead of relying on a narrow historical lens, courts should ask whether the proposed issue merits attention due to its broader significance or utility in clarifying Ontario law.[9]
The Court observed that the legal landscape has changed dramatically since Sault Dock was decided, noting the advent of the Canadian Charter of Rights and Freedoms and the evolution of administrative and public law.[10] As provincial policies shift toward greater electrification and housing development, the allocation of regulatory costs by bodies like the OEB carries wide-ranging significance.[11] The Court also commented on the application of Sault Dock which has often over looked the flexibility that was written into that decision, in favour of a rigid application
Why This Matters
For practitioners and stakeholders, West Whitby represents a meaningful shift. Leave to appeal will no longer be strictly confined by a rigid historical standard. The Court’s updated approach recognizes that some Divisional Court decisions have implications extending far beyond individual litigants. In West Whitby, the issue of whether certain OEB decisions could be insulated from judicial review resonates with ongoing public policy efforts to shape Ontario’s energy and housing markets.[12]
This decision means that legal counsel can more confidently argue that certain questions deserve the Court of Appeal’s consideration because of their potential to influence Ontario jurisprudence and public interest—not because the matter is important to a single party.
Conclusion
The Ontario Court of Appeal has redefined the approach for granting leave to appeal from the Divisional Court, urging a return to first principles and focusing on jurisprudential significance over rote checklists.[13] By adopting a modern, flexible, and context-sensitive standard, the Court ensures that significant issues of public importance will receive the appellate scrutiny they deserve, shaping the province’s legal landscape for years to come.
[1] 2024 ONCA 910.
[2] Ibid, at para. 11.
[3] Ibid, at para. 3.
[4] Ibid, at para. 5.
[5] Ibid.
[6] Ibid, at para. 10.
[7] Ibid, at para. 9.
[8] Ibid, at para. 11.
[9] Ibid, at para. 11.
[10] Ibid, at para. 14.
[11] Ibid, at para. 15.
[12] Ibid, at para. 17.
[13] Ibid, at para 17.
The author would like to thank Harinder Singh, Student-at-Law, for his assistance with this blog.