Law360 Canada (September 18, 2026, 3:55 PM EDT) -- The Ontario Court of Appeal has updated the framework for leave to appeal Divisional Court decisions, clarifying that the grant of leave turns on whether an appeal raises an arguable question of public importance, regardless of whether the lower court exercised original or appellate jurisdiction.
In
Knauff v. Ontario (Human Rights Tribunal), 2026 ONCA 653, released Sept. 17, Justice Benjamin Zarnett held that it was appropriate for the court to update the 1973 framework.
“There is no need to retain a notional distinction between the approach to leave to appeal in cases where the Divisional Court exercised original jurisdiction and those in which it exercised appellate jurisdiction,” the judge wrote.
The underlying dispute concerned a human rights complaint brought by the moving party, Adam Knauff, an employee of the Ministry of Natural Resources.
Knauff alleged that his employer’s failure to provide him with vegan meals while he was on active duty as a forest firefighter constituted discrimination on the basis of creed.
The Human Rights Tribunal of Ontario directed a preliminary hearing to determine whether ethical veganism was a creed under the
Human Rights Code.
Before the tribunal ruled on the issue, the parties entered into a settlement that resolved Knauff’s substantive claims. The tribunal adjudicator was not made aware of the settlement before issuing its decision.
Knauff continued to seek a decision as to whether ethical veganism constituted a creed under the code. The tribunal ruled that it did not, and Knauff brought an application for judicial review in the Divisional Court.
The Divisional Court dismissed the judicial review application as moot, and Knauff moved for leave to appeal that decision.
Justice Zarnett noted that the primary guidance on leave to appeal a Divisional Court decision had been the Ontario Court of Appeal’s decision in
Sault Dock Co. Ltd. and City of Sault Ste. Marie, [1973] 2 O.R. 479.
In
Sault Dock, the Ontario Court of Appeal ruled that the overarching consideration on an application for leave to appeal from a Divisional Court decision was the importance of the question in issue to the development of Ontario law and the public interest.
The court also held that the question on which leave is sought must be arguable and provided a short, non-exhaustive list of examples of cases that may merit leave if they are arguable.
In
United Glass & Ceramic Workers of North America (AFL-CIO-CLC), Local 246 and Dominion Glass Co. Ltd. et al., [1973] 2 O.R. 763, the Ontario Court of Appeal expressed the view that leave to appeal would more readily be granted where the Divisional Court had exercised original, rather than appellate, jurisdiction.
Justice Zarnett noted that significant changes affecting the Divisional Court’s docket had occurred since
Sault Dock was decided.
“As a result, the issues that might form the basis for requests for leave to appeal to this court have evolved,” he wrote.
However, the judge ruled that nothing in those changes undermined
Sault Dock’s overarching message: leave to appeal generally turns on whether the issue is a question of law or mixed law and fact that is both arguable and of public importance.
He said the changes to the legal landscape called into question the utility of the list of examples, especially if parties ignored its non-exhaustive nature.
He also noted that, under the
Sault Dock framework, the lack of an arguable question was a basis for denying leave applications, but the decision did not elaborate on how that consideration interacted with the issue of public importance.
The court provided an updated framework under which the key consideration is whether the proposed appeal raises an arguable question of law or mixed law and fact that is of sufficient public importance to warrant consideration by the Court of Appeal.
“The components of the updated framework are accordingly arguability and public importance. They are separate but overlapping concepts,” Justice Zarnett wrote.
Justice Zarnett said arguability requires a real, debatable question of law or mixed law and fact and does not require a finding that the appeal will necessarily succeed.
He also clarified that public importance depends on the breadth and depth of the interests affected by the resolution of the legal issue.
He added that whether an issue goes to the development, progress, coherence, stability and predictability of the law is also a key consideration in assessing public importance.
The court also clarified that the same framework applies to all decisions of the Divisional Court.
“Whether leave to appeal to this court is granted should be a function of the nature of the question arising from the Divisional Court’s decision (whether it is an arguable question of public importance), not how the case got to the Divisional Court in the first place,” Justice Zarnett wrote.
Applying the updated framework, the court declined to grant Knauff leave to appeal the Divisional Court’s decision.
“We are disappointed that the court will not hear Mr. Knauff’s appeal,” said Alexandra Pester, counsel for the intervener Animal Justice, noting that the case raised the important question of whether ethical veganism is a protected creed under the Ontario
Human Rights Code.
“However, we are grateful that the court has updated the framework for its leave-to-appeal test, which will help ensure greater access to justice for marginalized interests like those of animals,” she added.
Counsel for the remaining parties were not immediately available for comment.
Counsel for the moving party were Wade Poziomka, Nick Papageorge and Justyna Zukowski of Ross & McBride LLP.
Mindy Noble acted for the Human Rights Tribunal of Ontario.
Kaitlyn Mitchell also acted as counsel for the intervener Animal Justice.
If you have any information, story ideas or news tips for Law360 Canada on business-related law and litigation, including class actions, please contact Karunjit Singh at karunjit.singh@lexisnexis.ca or 905-415-5859.