Knauff v. Ontario: The Court of Appeal Resets the Test for Taking a Case Further

On September 21, 2026, the Court of Appeal for Ontario released Knauff v. Ontario (Human Rights Tribunal), 2026 ONCA 653. A unanimous five-judge panel used the case to restate, for the first time in more than fifty years, the test for leave to appeal from the Divisional Court to the Court of Appeal. If your dispute with a tribunal such as the Human Rights Tribunal of Ontario ever reaches the Divisional Court and you lose, this decision now decides what it takes to get one level higher.

What happened in the case

Mr. Knauff's underlying matter was a Human Rights Tribunal of Ontario (HRTO) case. When he sought judicial review, the Divisional Court declined to hear it because the issue had become moot, applying the well-established test for mootness. Mr. Knauff then asked the Court of Appeal for permission, called leave, to appeal that decision, and asked the Court to assemble five judges to reconsider the governing framework.

That framework came from Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, 1972 CanLII 572 (ON CA), the 1972 decision that set out when the Court of Appeal will grant leave from a Divisional Court decision. In late 2024, two Court of Appeal panels appeared to pull in different directions. In West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910, one panel seemed to loosen the test. Two weeks later, in Davis v. Aviva General Insurance Company, 2024 ONCA 944, another panel held that Sault Dock still governed. Litigants were left guessing which framework applied.

What the Court decided

The five-judge panel reaffirmed the core of Sault Dock but distilled it into two components that must be assessed in sequence:

1. Arguability. Is there a genuine, arguable question of law or mixed law and fact? A purely factual disagreement will not qualify. Nor will an issue that is moot, or that attracts a high degree of deference and nothing more. Importantly, the Court recognized that even where the Divisional Court correctly applied existing law, an arguable question may still arise if that law should be reconsidered, clarified, expanded or changed.
2. Public importance. If the question is arguable, the Court asks who is affected and how. The broader the category of persons affected and the more fundamental the interest, the more the question qualifies. The Court also weighs legal importance: whether resolving the question would advance the development, coherence, stability and predictability of Ontario law. Public importance is not limited to public law.

The panel made three further points that matter in practice:

• No more "special circumstances." The old residual category for clear-error cases is gone. A clear error by the Divisional Court is now simply one factor inside the public importance analysis.
• One test for all cases. The same framework applies whether the Divisional Court was exercising original jurisdiction, as it does on judicial review, or appellate jurisdiction, as it does on statutory appeals.
• The statute still matters. Under section 6(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, an appeal lies only on a question that is not a question of fact alone.

Applying the framework, the Court dismissed Mr. Knauff's leave motion. The Divisional Court had applied the well-established and undisputed test for mootness, so the appeal did not raise an arguable question.

What this means for you

The Divisional Court is where most challenges to tribunal decisions land, including HRTO decisions and, in some matters, reviews of Landlord and Tenant Board outcomes. There is no automatic right of appeal from the Divisional Court to the Court of Appeal. Leave is a filter, and most requests fail.

The practical rule from Knauff: before asking to go further, be ready to answer two questions in order. First, is there a real question of law or mixed law and fact, not just a disagreement with how the facts were seen? Second, does the answer matter beyond your own case, to a broad group of people or to the development of Ontario law? If both answers are yes, the Court may grant leave. It may not. Outcomes are never guaranteed, and leave is discretionary.

Two further points of caution:

• Deadlines are short. A motion for leave to appeal must be brought promptly under the Rules of Civil Procedure; missing the window may end the matter regardless of the strength of the question.
• Choose the right question. Because arguability is assessed first, a motion built on factual complaints may be refused without the Court ever reaching public importance.

The bottom line

Knauff does not change who may appeal or when. It clarifies how the Court of Appeal decides whether to listen at all: arguability first, public importance second, and no shortcuts. If you have lost a judicial review or an appeal at the Divisional Court and are weighing a further step, JSR Immigration and Legals can assess whether your case raises the kind of question that may clear this test. See our HRTO services page and Small Claims Court services page, or contact us at (647) 286-4266 or info@jsrlegals.ca.

This post is general information, not legal advice, as of October 26, 2026. For advice on a specific matter, please contact JSR Legals.

Sources

• Knauff v. Ontario (Human Rights Tribunal), 2026 ONCA 653 (CanLII): https://www.canlii.org/en/on/onca/doc/2026/2026onca653/2026onca653.html
• Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, 1972 CanLII 572 (ON CA): https://www.canlii.org/en/on/ca/onca/doc/1972/1972canlii572/1972canlii572.html
• West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910 (CanLII): https://www.canlii.org/en/on/onca/doc/2024/2024onca910/2024onca910.html
• Davis v. Aviva General Insurance Company, 2024 ONCA 944 (CanLII): https://www.canlii.org/en/on/onca/doc/2024/2024onca944/2024onca944.html

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