The Conduct of an Appeal Blog

Avery v. Pointes Protection Association: Standard of Review on Test for Leave to Appeal to Divisional Court is Same as Standard Applied if Leave is Granted

Mar 8, 2017 4 MIN READ
Mark A. Gelowitz

Partner, Disputes, Toronto

In Avery v. Pointes Protection Association, the Ontario Divisional Court held that when reviewing an application for leave to appeal, the Court should use the same standard of review when applying the test for leave to appeal as the standard that would be used if leave is granted.


The applicant developers sought leave to appeal a decision by the Ontario Municipal Board (the “Board”) regarding a proposed residential development called “Pointe Estates” in Sault Ste. Marie, Ontario. The residential development was opposed by a group called Pointes Protection Association (the “PPA”). The Board dismissed the developers’ appeal from a decision of the Sault Ste. Marie City Council, in which the Council denied the developers’ request for rezoning and draft subdivision approval, among other things.  The developers allege the Board committed a number of errors, such as misinterpreting the meaning of terms used in policy statements issued under the Planning Act.

The Issues Raised on Appeal

Rule 61.03(4) of the Rules of Civil Procedure provides that the moving party should set out the specific questions that the Divisional Court should answer if leave to appeal is granted. In the notice of motion, the developers listed 34 alleged errors of law on the part of the Board.

Justice Ellies, writing for the Divisional Court, stated that this “shotgun approach” in an application for leave to appeal serves to dilute, not distill, the merits of the appeal. In an application for leave, the Court must consider each and every alleged error in order to determine whether leave should be granted. Justice Ellies noted that where the number of errors alleged approaches the number alleged in this case, the resulting delay weighs heavily on the parties and on the court.

The Test for Leave to Appeal

According to s. 96(1) of the Ontario Municipal Board Act, an appeal lies to the Divisional Court, with leave, on a question of law. In addition to the requirement that the issue involve a question of law, the jurisprudence developed under this section also imposes the following conditions:

  • that there is reason to doubt the correctness of the decision on that issue; and
  • that the point of law is of sufficient importance to merit the attention of the Divisional Court.

This test for leave to appeal in this section is similar to the test in Rule 62.02(4)(b) for leave to appeal to the Divisional Court.

With respect to the first part of the test, namely that there be some reason to doubt the correctness of the decision, the parties disagreed how to phrase the first part of the test for leave to appeal. The developers argued that there need only be “good reason” to doubt the correctness of the Board’s decision whereas the PPA argued that the test is whether the Board’s decision is “open to substantial doubt.”

Justice Ellies noted that the difference between the two parties is tied to the question of what standard of review applies in an application for leave to appeal. The developers argued that the standard of review on a leave application is the less deferential standard of correctness, even where, if leave was granted, the standard on the appeal would be the more deferential standard of reasonableness.

In previous cases, the courts have described the test in a number of different ways. Some courts have said that the decision must be open to “substantial doubt” whereas others have used a “very serious debate,” “good reason to doubt” or “some reason to doubt” description of the test. According to Justice Ellies, the court’s choice of words used in the test depends on the court’s view of the degree of deference that should be shown to the decision.

Justice Ellies held that the standard of review on an application for leave to appeal should be the same standard that would be applied if leave is granted. Although applying a less deferential standard would have little impact where a court denies leave, it may have a significant impact where a court grants leave on a question of law that will attract deference on the appeal. According to Justice Ellies, it makes no sense to grant leave to appeal by applying a less deferential standard where the appeal is unlikely to succeed once a more deferential standard is applied. Such an approach would only add to the already overburdened justice system.

In this case, Justice Ellies found that, if leave was granted, the Board’s decision on a question of law concerning its own or related statutes would be reviewed on a standard of reasonableness. Therefore the standard of reasonableness should be applied to the first part of the test for leave to appeal. Once the degree of deference owed to a decision is made explicit, Justice Ellies explained that there is no reason to be concerned with the different wording used to describe the test (although he chose to use the “good reason to doubt” phrasing of the test).

After outlining the test, Justice Ellies reviewed the alleged errors of the Board raised by the developers and concluded that none of the many issues raised met the onerous test for leave to appeal. The Court therefore dismissed the application.