Appeals With Leave and Applications for Judicial Review: Caledon Residences Inc. v. Ontario Land Tribunal, 2025 ONSC 6546

Another entry in the catalogue of cases dealing with the interaction between rights of appeal and applications for judicial review is Caledon Residences Inc. v. Ontario Land Tribunal, 2025 ONSC 6546. This raises a question as to whether a right of appeal that is subject to a leave requirement and is contingent on demonstrating a question of public importance is an adequate alternative remedy for an issue that might not meet the public importance threshold.

Here, a company brought an application for judicial review alleging a breach of procedural fairness. It chose not to exercise a right of appeal (with leave) on a question of law. This right is created by s. 24(1) of the Ontario Land Tribunal Act, 2021, c 4, Sch 6:

Unless another Act specifies otherwise, an order or decision of the Tribunal may be appealed to the Divisional Court, with leave of that court on motion in accordance with subsection (3), but only on a question of law.

The Divisional Court held that the right of appeal was an adequate alternative remedy that barred consideration of the application for judicial review (although Backhouse J did go on to consider the merits of the procedural fairness argument):

Section 24(1) of OLTA indicates a clear legislative intention to subject the Tribunal’s decisions on questions of law to a requirement that leave be sought.  Allowing judicial review in these circumstances would undermine the Legislature’s choice to subject questions of law to a leave motion.  In Humberplex Developments Inc. v. Ontario (AG), 2024 ONSC 2335 (Div Ct.) the court held that questions of procedural fairness raised in an application for judicial review were more appropriately addressed in the motion for leave to appeal and appeal and that they provide an adequate alternative remedy that is consistent with the applicable statutory scheme, under which applicants can address questions of law (including procedural fairness) in the context of an appeal. The statutory appeal mechanism is a meaningful and adequate means to challenge decisions on questions of law that are incorrect or were taken in a way that was procedurally unfair (at para. 21).

There is, however, a twist. The test for leave under s. 24(1) is quite demanding:

(1)   the proposed appeal raises one or more extricable questions of law; and

(2)   if so, there is good reason to doubt the correctness of the Tribunal’s decision with respect to the question(s) of law raised; and

(3)   if so, the question or questions of law are of sufficient “general or public importance” to merit the attention of the Divisional Court (Frontenac Heritage Foundation v. Homestead Land Holdings Ltd., 2022 ONSC 3613, at para. 34).

Is the availability of an appeal that is subject to the discretion of the appellate court an adequate alternative remedy? In particular, if a procedural fairness argument is (as they almost inevitably are) fact-specific and heavily dependent on context, will it ever qualify as a question of “general or public importance”.

The Federal Court of Appeal has held, in the context of s. 18.5 of the Federal Courts Act, which is said to “codify” the principle that adequate alternative remedies must be exhausted (Canadian National Railway Company v. Alberta Pacific Forest Industries Inc., 2025 FCA 160, at para. 26), that an appeal is an adequate alternative even if leave is required. But the standard applied by the Federal Court of Appeal (and the Federal Court in the context of immigration decisions) is the “arguable case” standard — there is no public importance requirement. Whether a proposed appeal raises an “arguable case” is a question of law (see here) and the merits of the case will be considered by the court in deciding whether or not leave to appeal should be granted. Simply put, on the “arguable case” standard, a court will directly consider whether the administrative decision was correct, reasonable or procedurally fair (depending on which ground is raised). As such, the right of appeal does function as an adequate alternative remedy to judicial review.

However, it is by no means obvious that a leave requirement that requires the exercise of discretion as to whether an appeal is of public importance is an adequate alternative remedy, because it inserts an exercise of discretion between the underlying issue and a consideration of the merits. In short, the appellant has to demonstrate, independently of the merits, that their case meets a public importance threshold — to be determined in the discretion of the court granting leave — before the correctness, reasonableness or procedural fairness of the administrative decision is assessed. Put starkly, the court can decide to refuse leave to appeal even if the court believes the decision at issue is incorrect, unreasonable or procedurally unfair.* Moreover, in relation to s. 24(1) specifically, the second prong of the test for leave (“good reason to doubt the correctness of the Tribunal’s decision”) may be more demanding than the “arguable case” standard, inserting another layer between the procedural fairness issue and the prospect of a court dealing with it on an appeal on a question of law.

Accordingly, there is good reason to think that a fact-specific, context-dependent procedural fairness issue will not satisfy the test for leave and, therefore, the right of appeal cannot be an adequate alternative remedy. In my view, the applicant was on solid enough ground in proceeding as it did.

Now, one might respond that the applicant should have brought an application for leave to appeal anyway, just in case, and only pursued the application for judicial review if the Divisional Court found that it had not satisfied the s. 24(1) test. Maybe, but if counsel has a good-faith belief that they do not meet a threshold requirement and chooses not to expend private and court resources on an application they believe doomed to fail, should this really be held against them? Not to mention that in other courts, counsel have been rapped on the knuckles for doing just this (see here). And, again, there remains the issue of the insertion of an exercise of discretion between an allegedly incorrect, unreasonable or procedurally unfair administrative decision and any sort of court oversight.

The state of the law is not entirely satisfactory. I am reminded of what Professor David Mullan wrote in a classic article on remedies, “The Discretionary Nature of Judicial Review“:

Fortunately, as a result of modernization efforts throughout Canada over the last forty years, the malignant influence of the finicky requirements of the law governing the issuance of the prerogative writs has disappeared almost entirely from the processing of judicial review applications of all kinds.

It is important that we do not turn the relationship between applications for judicial review and rights of appeal into what an Irish judge once described as a “legal heffalump trap for the unwary”. At some point in 2026, I hope to gather my thoughts on the relationship, and the recent jurisprudence, in paper form, with a view to developing some analytical clarity in what is proving to be a difficult area for courts and counsel alike.

* Disclosure: I am counsel on a case that raises this issue, decided against us in a Federal Court judgment that is not yet on the website and currently under appeal. My client’s position is consistent with the argument laid out here, which is also consistent with my view of what the law ought to be.

This content has been updated on December 14, 2025 at 20:48.