INTRODUCTION
In the midst of writing this post yesterday, January 6th, I thought back to that day in 2021 when Donald Trump attempted a coup in the United States to seize the presidency despite having lost the 2020 election. This year’s certification of the 2024 election involved no such threat to democracy only because Trump won the election. But it may be because I have the concept of “coup” on my mind that I am tempted to describe West Whitby Landowners Group Inc. v. Elexicon Energy Inc. (Ont. CA) (“West Whitby”) as a “judicial coup”, albeit a coup somewhat more benign than that in America in 2021.
West Whitby was one of two decisions of the Ontario Court of Appeal (“CA” or “the Court”) released within a week of each other, the other being Davis v. Aviva General Insurance Company (Ont. CA) (“Davis”). Read together, they imply a tension among members of the Court in relation to respecting decisions of the Divisional Court and ultimately, the potential for the integrity of administrative decision-making.
In West Whitby, three judges in a motion for leave to appeal heard in writing decided that it was time to revisit the test for leave to appeal in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie (Ont. CA) (“Re Sault Dock”). A week later, a second CA panel in Davis hastened to disabuse litigants and interested observers of the idea that the Ontario Court was doing any such reappraisal: move along, folks, nothing to see here.
In this post, I discuss the two cases and, although neither decision remarks on this point, suggest that the subtext of West Whitby has the potential to impact tribunal decision-making.
First, I briefly outline the test developed in Re Sault Dock, then discuss West Whitby and Davis. I then consider what I believe are the broader intentions underlying West Whitby.
THE JURISPRUDENCE
- Re Sault Dock
Re Sault Dock is a short decision by the CA setting out the test for determining when the Court should grant leave to appeal from the Divisional Court.
Sault Dock, which owned land in the City of Sault Ste. Marie, sought a building permit from the City’s building inspector. The inspector refused it on the basis that it was contrary to the City’s official plan and zoning by-law. Sault Dock’s application for an order of mandamus was successful; the City and building inspector’s appeal to the Divisional Court was unsuccessful and they sought leave to appeal to the Court of Appeal.
The Re Sault Dock panel stated that appeals to the CA are “limited by providing that an appeal lies only: a. with leave b. on a question that is not a question of fact alone.” In other words, decisions of the Divisional Court are to be final and appeals to be the exception. This is consistent with section 6(1)(a) of the Courts of Justice Act (“CJA”): “An appeal lies to the Court of Appeal from, (a) an order of the Divisional Court, on a question that is not a question of fact alone, with leave of the Court of Appeal as provided in the rules of court . . . .”
According to Re Sault Dock, the importance of the Divisional Court decision to the litigants is not the operative measure. It is rather the impact which the decision on the question will have on the development of the jurisprudence of Ontario. If the resolution of the question would largely have significance only to the parties and would not settle for the future a question of general interest to the public or a broad segment of the public, the requirements to obtain leave will not have been met. (Re Sault Dock)
The Court of Appeal, said the panel, should therefore grant leave only on a question of mixed fact and law and involving “consideration of matters such as the following”: the interpretation of a Canadian or Ontario statute or regulation “including its constitutionality”; “the interpretation, clarification or propounding of some general rule or principle of law”; or the interpretation of a municipal by-law or agreement “where the point in issue is a question of public importance”. These aspects of a matter can be called “the preliminary step” or “first step of the analysis”. Does the impugned decision raise any of these circumstances, all of which raise questions of law?
These are all matters that are easily identified and transcend the interests of the parties involved in the dispute (except an “agreement”). Depending on the outcome they could have an impact on the development of the law.
However, the panel also identified other “special circumstances” that could justify granting leave because they would mean the issue was of public importance or “would appear to require that in the interest of justice leave should be granted” (examples include the introduction of new evidence, the Divisional Court’s “obvious misapprehension … of the relevant facts” or a “clear departure from the established principles of law resulting in a miscarriage of justice”). While these examples would seem to affect only the parties, they still fall within the public interest criterion because it is not in the public interest to leave unreviewed decisions based on these matters. Notably, an error in the Divisional Court’s decision would not be in itself a reason to grant leave.
All in all, then, it would not be enough that the CA panel deciding whether to grant leave disagrees with the result reached by the Divisional Court on the facts of the case, something that affects only the parties and in this respect, it is irrelevant that it might affect others in the same position as the parties; the decision must in some way raise a matter of public importance and there the scope available to the CA is relatively broad.
Applying these principles to the issue at hand, the panel in Re Sault Dock explained that in determining whether to grant leave, it would have to interpret a municipal by-law. However, even though the case concerned urban planning, it did not raise a matter of public importance; it is concerned with one parcel of land with one landowner: although other landowners or occupiers may have an interest in the interpretation, the number of other landowners or occupants in similar circumstances or their interest in the interpretation was irrelevant. The crux of the matter is that “it cannot be said that the interpretation of this by-law will settle any question which is of general interest to the public of Ontario”. The panel did not grant leave.
- West Whitby
Justices Brown, Huscroft and Miller together explain in West Whitby why Re Sault Dock should no longer govern whether the CA should grant leave from Divisional Court decisions. They denigrate Re Sault Dock (or at least its application) in the clearest language possible: “As often happens when certain judicial decisions take on the reputation as eternal pronouncements carved in tablets of stone, two unhealthy features work their way into the resulting jurisprudence.” (West Whitby, para. 8)
The test as applied ignores its flexibility and is applied “by rote” and, the judges imply, the most important part of the test is ignored: “not whether the issue falls into some pigeon-hole on a checklist, but ‘the impact which the decision on the question will have on the development of the jurisprudence of Ontario’.” (West Whitby, paras. 9 and 11, citing Re Sault Dock).
The second unhealthy feature, in the panel’s mind, is the age of Re Sault Dock: “so old, in fact, that it pre-dates the enactment of the Canadian Charter of Rights and Freedoms” (“Charter”), which was enacted in 1982, 42 years ago. Re Sault Dock is older by 10 years, evidently placing its birth in some long ago eon. The problem, the panel explains, is that the Charter may be raised in cases before the Divisional Court. According to the panel, because of Re Sault Dock, the CA would not find it easy to review these decisions. (It is not clear why this would be the case, since the Charter surely constitutes a “general rule or principle of law” or if raised in relation to a statutory provision, would constitute “constitutionality” of the statute.)
The test should be, in the panel’s view, that which the Supreme Court of Canada applies when determining whether to grant leave to appeal: “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, para. 13)
The panel adopts this test from the test under section 40(1) of the Supreme Court Act:
Subject to subsection (3) [not applicable here], an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court. (Emphasis added)
This is a very broad test, which gives the court determining leave a great deal of discretion. It appears that the West Whitby panel wants a simpler test from that in Re Sault Dock that coincidently gives the CA a greater latitude in determining leave applications with the likely result that it would mean the Court would grant leave more often.
West Whitby involved landowners, developers who needed to connect to the provincial electricity grid. The distribution company and the landowners disagreed about the allocation of costs for a substation to make the connection. This issue is covered by the Distribution System Code (“DSC”), which the Ontario Energy Board (“the OEB”) applies under the Ontario Energy Board Act (“OEBA”): “if the substation is characterized as a system ‘expansion’, the Landowners would bear the cost of its construction and connection. If the substation is an ‘enhancement’, … the distribution company… bears the cost” (West Whitby, para. 3).
The OEB’s staff concluded when the landowners sought its opinion that the distribution company had interpreted the relevant provision correctly (that it was an expansion) but subsequently determined there should be a reduction in costs because this wasn’t a “pure” expansion project. The landowners unsuccessfully applied for judicial review to the Divisional Court.
The Divisional Court’s reasons were based on the OEB’s opinion’s not being a statutory power of decision and that the landowners did not have standing to challenge the OEB’s assessment. The Court of Appeal panel took judicial notice that the provincial and federal governments “are pursuing polices to promote much greater use of electricity in the economy” and the Ontario government “is pursuing an aggressive policy to support the construction of more residential accommodation”, including projects such as the one here (West Whitby, para. 15). The panel observed, “Applying an updated and more flexible approach to the leave application before us, the Divisional Court’s decision appears to insulate certain decisions of the Board from judicial review” (West Whitby, para. 16).
In assessing whether they should grant leave to appeal in the case at hand, the panel concluded that given provincial and federal interest in greater electricity usage and more housing, the issue before the OEB was of great public importance and therefore the decision of the Divisional Court should not be immune from judicial review. In the panel’s view, this is a matter of public importance warranting the granting of leave.
The Divisional Court’s decision in West Whitby affords a somewhat more nuanced perspective from that gleaned from the CA’s decision. The OEB provided its opinion because one of the parties requested that it do so in order to help settle their disagreement about the allocation of costs, as per their Offer to Connect Agreement (West Whitby, Div. Ct., para. 10). Justice Favreau, writing for the panel, stated clearly that ‘[t]he parties sought the opinion for the purpose of resolving their private dispute. The fact that they agreed to be bound by the OEB’s opinion does not turn the opinion into a decision of a public character.” (West Whitby, Div. Ct., para. 37)
Furthermore, while the landowners can make a complaint when it is not satisfied with the opinion, the OEBA gives the OEB wide discretion in how to handle a complaint (West Whitby, Div. Ct., para. 42).
The CA panel determining whether to grant leave blew this private matter into something more significant. In the process of doing so, they put a spin on the nature of the opinion and the treatment of the complaint to allow them to grant leave.
- Davis
The facts in Davis were that a woman slipped on the ice and fell when “reaching out to unlock her car”. She sought accident benefits from her insurer. The issue was whether she had an “accident” under s. 3(1) of the Statutory Accident Benefits Schedule (“SABS”). The Licence Appeal Tribunal ruled that she did not have an accident caused by the use and operation of her car; it was caused by the ice. However, the Divisional Court held it was an accident because she had her key fob in her hand and was close to the car. (Davis, para. 14) The Divisional Court in fact found that Davis was in the process of opening her car door when the accident occurred (Davis, Div. Ct. para. 84).
The insurer argued in seeking leave to appeal that the Divisional Court misapplied the “causation step” in applying the SABS, that is, that more than the presence of the insured prior to using the vehicle is insufficient, there must be “direct use or operation” of the car in causing the injury (Davis0, para. 15). Justice Sossin found that the “dispute is largely fact-specific, and [the insurer] has not made an arguable case for why the settled test for an ‘accident’ under the SABS should be changed” and he therefore denied leave to appeal (Davis, paras. 16, 17). Applying Re Sault Dock, the matter concerned a dispute between the two parties and did not give rise to a more significant public interest or have an impact on the development of Ontario law.
Justice Sossin made no bones about diminishing the impact of West Whitby. He explained that although normally the CA does not give reasons for its decisions on leave, he was doing so in this case “in order to address a question of uncertainty that has arisen in light of comments made by a panel of this court in granting leave to appeal in West Whitby ….” (Davis, para. 2).
After quoting Re Sault Dock at length, Sossin JA referred to the West Whitby panel’s emphasis on “the importance of assessing the impact of a decision on the jurisprudence of Ontario” and on its criticism of “the undue attention which, in their view, has been placed on the four categories enumerated to illustrate matters on which an arguable question must be established in order to meet the threshold for leave” (Davis, paras. 4, 5).
The West Whitby decision raises the question of whether the test for leave applications has changed. Justice Sossin rejected the notion that the West Whitby panel at least by implication has changed the test. Unlike the panel itself in West Whitby, he maintains that “the approach taken by the panel in West Whitby [fits] squarely within the Sault Dock framework, as that panel interpreted Sault Dock” (para. 10): “it appears that the West Whitby panel intended to highlight rather than change the principles governing leave motions from the Divisional Court to the Court of Appeal.” (Davis, para. 11)
Put another way, Sossin JA told the West Whitby panel that they weren’t doing what they thought they were doing.
In any event, Sossin JA went on, the West Whitby panel couldn’t have intended to change the test because the CA has a process for determining whether to override a precedent and the West Whitby panel did not follow that process (Davis, para. 12). Surely, the implication is, the West Whitby panel wouldn’t have gone rogue and mounted a judicial coup (my inference and words)..
Justice Sossin did throw the West Whitby panel a bone, while at the same time minimizing the decision’s impact, by concluding that the decision should be read as a helpful discussion of the application of Re Sault Dock.
ANALYSIS: SUBTEXT OF WEST WHITBY
The three-judge panel in West Whitby sought to free the CA from what the panel treats as the strictures of Re Sault Dock. Although it does not address this (and nor does Davis), doing so would potentially allow it to wrest the shaping of administrative law at the provincial level from the Divisional Court. This despite the creation of the Divisional Court as specialized court for hearing “statutory appeals from administrative tribunals in the province, and [for serving as] the primary forum for judicial review of government action in Ontario”, as described on the Ontario Courts website (see here) and as recommended by former Chief Justice James McRuer in the McRuer Report (Gerard Kennedy, “Wither the Divisional Court? Looking at the Past, Analyzing the Present, and Querying the Future of Ontario’s Intermediary Appellate Court”, p. 100). Over time, as Kennedy describes, the Divisional Court’s jurisdiction expanded in part to alleviate the Court of Appeal’s caseload (Kennedy, p. 102).
While under section 18(3) of the CJA all judges of the Superior Court of Ontario are judges of the Divisional Court, the Divisional Court has acquired institutional expertise through its decisions (not everyone agrees it has this expertise: see Kennedy, p.114).
As the panel in Re Sault Dock explained, the Divisional Court’s appellate jurisdiction was previously exercised by the Court of Appeal. One might infer that the legislature could not have intended to return that particular jurisdiction to the CA through a more expansive leave to appeal formula. (I note that in proposing the abolition of the Divisional Court, Gerard Kennedy suggests that the Divisional Court’s diverse and broad jurisdiction, now going beyond its jurisdiction in 1972, could be allocated to other courts and would not therefore overly increase the CA’s workload.)
Justice Sossin in Davis sought to tone down the potential impact of West Whitby, no doubt for the reason he gave: to alleviate uncertainty for litigants. However, Davis also not so subtly raps the West Whitby panel across the knuckles for going rogue. In other words: you shouldn’t have tried to do what you did try to do, but you failed anyway, and really, you didn’t change anything. Although Sossin JA suggests the West Whitby panel did not have to take a run at Re Sault Dock to reach the decision it did, it is not clear that is the case.
The situation in West Whitby posits a classic administrative law function: the OEB had to determine a matter within its competence, whether the land development was an “expansion” or an “enhancement”. As far as judicial review of tribunal decisions is concerned, the “limited” scope of review inherent in the preconditions for review under section 6(1) of the CJA and under Re Sault Dock reflects the role of tribunals under administrative law.
Tribunals are specialized, expert adjudicative bodies intended to advance the policy objectives of the legislature, as reflected in their enacting statutes. The Court of Appeal may disagree with their decisions, but absent more, that is not a reason to review the case. It is not for the Court to introduce extraneous circumstances, as did the West Whitby panel, in order to incorporate political considerations into its analysis. In West Whitby, the tribunal had to make a fact-based determination in response to the parties’ agreement and to exercise the wide discretion provided by statute in handling the landowners’ complaint about that opinion.
CONCLUSION
The Court of Appeal panel in West Whitby appears surprisingly eager to throw Re Sault Dock to the wolves, given that it did not follow the Court’s process for reviewing significant precedents. With this knowledge of the process, an innocent reader might ask why the panel was prepared to (evidently) “go rogue”. Did the reason have to do with this specific case and government objectives (which no party apparently raised) or more generally with the approach to administrative law? At the very least, the decision gives rise to speculation that the Court of Appeal intended to intrude to a greater extent into the Divisional Court’s jurisdiction and thereby potentially to undermine deference for specialized tribunals’ decisions.
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