Simon's Megalomaniacal Legal Resources

Appeals - Combining Appeals From Different Courts (3)

. Heegsma v. Hamilton (City) [when unadvanced interlocutory orders heard with main appeal]

In Heegsma v. Hamilton (City) (Ont CA, 2025) the Ontario Court of Appeal dismissed an interlocutory appellate motion by a municipality, here where it was seeking to strike portions of the Notice of Appeal that advanced appeals of two interlocutory order for which leave to appeal was not sought at the time. Further, because of the evidence-exclusion nature of these interlocutory orders in this specific case the appellants had included related subject material in the appeal book.

This case allowed the interlocutory appeals to be advanced, as they were "so interrelated with the final order that leave would inevitably have been granted", but the case illustrates the difficult position that appellants can be placed in these circumstances. How is one to adjudge with any certainty whether the subject matter of a denied interlocutory motion is "so interrelated with the final order that leave would inevitably have been granted" to merit the effort and expense of a leave to appeal application? Does this not compel cautious counsel to always for apply for leave to appeal any negative interlocutory outcomes unless it is obviously clear that the appellate court will allow the interlocutory matters to be heard? Further, does this doctrine not counter (by analogy) the well-known judicial review doctrine of 'prematurity' (which presumptively bars appeals of interlocutory orders) without any good rationale?:

[22] The issues are (i) whether this court has jurisdiction to hear the appeal of the two interlocutory orders; and (ii) whether an order permitting the appeal of the interlocutory orders to be heard with the appeal of the final order would contravene the principles of fairness, efficiency and finality in the doctrines of res judicata, and/or abuse of process.

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(a) Jurisdiction to appeal interlocutory orders

[26] Sections 6(1)(b) and 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, provide that an appeal of a final order lies to the Court of Appeal, while an appeal of an interlocutory order lies to the Divisional Court, with leave.

[27] Rule 61.03(1)(b) of the Rules of Civil Procedure provides that leave to appeal an interlocutory order must be sought from the Divisional Court within 15 days of the order.

[28] However, s. 6(2) of the Courts of Justice Act provides that,

The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal.

[29] In the normal course, leave to appeal must be obtained from the Divisional Court before seeking to combine an appeal that lies to the Divisional Court with an appeal of a final order that lies to this court as of right: Cole v. Hamilton (City), (2002), 2002 CanLII 49359 (ON CA), 60 O.R. (3d) 284 (C.A.), at paras. 15-16; Mader v. South Easthope Mutual Insurance Co., 2014 ONCA 714, 123 O.R. (3d) 120, at para. 55; Brown v. Hanley, 2019 ONCA 395, at paras. 19 and 20.

[30] However, if the final and interlocutory orders are “so interrelated that leave would inevitably have been granted on the interlocutory issue”, this court can assume jurisdiction over the appeal under s. 6(2) even if leave has not been sought from the Divisional Court: Carcillo v. Ontario Major Junior Hockey League, 2024 ONCA 685, at para. 35; P1 v. XYZ School, 2021 ONCA 901, 160 O.R. (3d) 445, at para. 37, citing Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 70 O.R. (3d) 520 (C.A.), at para. 9.

[31] The reason for allowing the appeal of interlocutory orders that are interrelated to a final appeal and permitting them to be heard together in this court, is to promote judicial economy and to secure “the just, most expeditious and least expensive determination of every civil proceeding on its merits”, as provided for in r. 1.04 of the Rules of Civil Procedure.

(b) When is an appeal of an interlocutory order “so interrelated that leave would inevitably be granted” such that it can be heard along with an appeal of a final order to this court?

[32] In P1, at paras. 38 and 39, this court determined that the interlocutory order was so interrelated to the final order that they should be heard together. In so finding, they relied on Lax, at para. 9, where this court held that,

Although the motion for summary judgment was dismissed, allowing the case to proceed to trial, the motion judge finally disposed of the issue whether the limitation period is 20 years or six years, thus removing the limitation period as a defence. The order is therefore a final order on a question of law and the appeal is properly brought to this court. Although the second issue would, if brought as a stand-alone appeal to the Divisional Court, require leave of that court, because the two issues are so interrelated, we were able to proceed to hear the two appeals together in accordance with s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C-43, on the basis that once the first issue was before this court, leave would inevitably have been granted on the second. [Citations removed; emphasis added.]

See also, 2099082 Ontario Limited v. Varcon Construction Corporation, 2020 ONCA 202, 97 C.L.R. (4th) 26, at para. 17; and Azzeh v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721, at paras. 25-26, leave to appeal refused, [2017] S.C.C.A. No. 289.

[33] Most recently, in Carcillo, at paras. 33-38, this court specifically addressed hearing an appeal of an interlocutory order for which the moving party had not sought leave to appeal to the Divisional Court. While recognizing that, “in the normal course”, the appellant must first obtain leave from the Divisional Court before seeking to combine an appeal that lies to the Divisional Court with an appeal that lies to this court, this court noted at paras. 35 and 38:

[I]f the interrelated final and interlocutory order are “so interrelated that leave would inevitably have been granted on the interlocutory issue”, this court can assume jurisdiction over the appeal under s. 6(2) even if leave has not been sought from the Divisional Court.

...

[H]earing this appeal with the appeals of the Certification and Dismissal orders would promote, not take away from, the time and cost-effective resolution of disputes.

(c) Whether these interlocutory orders are so interrelated with the final order that leave would inevitably have been granted such that the Orders are not res judicata or an abuse of process

[34] As part of its argument that the responding parties’ requested relief would contravene the principles of fairness, efficiency and finality in the doctrines of res judicata, and/or abuse of process, the moving party claims leave would not have “inevitably been granted” by the Divisional Court. The moving party refers to this court’s decision in Blair v. Ford, 2021 ONCA 841, 159 O.R. (3d) 415, at para. 28, leave to appeal refused, [2022] S.C.C.A. No. 15, where the court held that “it is not appropriate to await the outcome of the [matter] to then assert that the issue is intrinsically interrelated”, and in such circumstances, the appeal of the interlocutory orders should not be heard together with the appeal of the final order.

[35] However, the point was addressed in Carcillo at paras. 33-38, where this court noted the decision in Blair but reiterated that leave is not required to include the appeal of an interlocutory order as a ground of appeal of a final order, where the grounds of appeal are “so interrelated” that leave to appeal the interlocutory order would inevitably have been granted.

[36] In my view, the interlocutory orders in question pertain to the same issues as the appeal of the final order and are so interrelated to the constitutional questions that are the subject of the appeal of the final order, that leave would inevitably have been granted to appeal the interlocutory orders.

[37] Ground 1 is central to the legal questions at the heart of the appeal of the final order as it is evidence of the demand for shelter beds, the challenges and disproportionate effect of the measures taken on the responding parties which is relevant to the issue of whether the sheltering restrictions and evictions constitute a deprivation of their s. 7 right to life, liberty and security of the person, and their s. 15 right to equality, and whether the evictions were conducted in a manner that could be justified as a reasonable limit prescribed by law within the meaning of s. 1 of the Charter.

[38] The responding parties will argue that the application judge erred in law in excluding this evidence and holding that any party seeking to rely on authenticated documents must make them exhibits to an affidavit or cross-examination as they claim this is not required by Rule 51 of the Rules of Civil Procedure.

[39] The excluded physicians’ evidence that is the subject of Ground 3, includes evidence of the effect of sheltering restrictions on the responding parties’ mental and physical health, medical treatment and barriers to accessing shelter. This also is interrelated to the claim for damages for physical and psychological harms the responding parties allege were caused by the evictions and barriers to access to shelter which they claim violated their ss. 7 and 15 Charter rights.

[40] At the merits hearing of the appeal, the responding parties will argue that the application judge’s decision to exclude this evidence was based on an error of law – categorizing the physicians’ as “participant experts” although the responding parties claim the physicians were only ever offered as fact and/or participant witnesses. They will argue that, had the application judge correctly categorized the physicians, he would not have excluded those parts of their evidence.

[41] Since Lax was decided, this court has accepted jurisdiction over grounds of appeal challenging interlocutory orders under s. 6(2) of the Courts of Justice Act, alongside grounds of appeal challenging final orders, if they were sufficiently interconnected, without requiring appellants to first obtain leave from the Divisional Court. These orders are inextricably linked to whether the moving party breached the responding parties’ Charter rights and what, if any, damage resulted therefrom.

[42] As such, Grounds 1 and 3 are not barred by the doctrines of res judicata, abuse of process, or collateral attack.

F. Conclusion

[43] Given that Grounds 1 and 3 are inextricably linked and interrelated to the appeal of the final order, leave to appeal the interlocutory orders would inevitably have been granted and those appeals may be addressed together within this appeal of the final order. The appeal of those orders is neither res judicata nor an abuse of process. The documents pertaining to those issues may also remain in the Appeal Record.

[44] The motion to exclude Grounds 1 and 3 from the Notice of Appeal is therefore dismissed, with costs reserved to the panel hearing the appeal.

. Ross v. Luypaert

In Ross v. Luypaert (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from application orders for sale of one property and a writ of possession regarding another.

The court considers a Partition Act appeal route issue, here where different appeal issues lay to different courts [CJA 6(2)]:

(1) Does this court have jurisdiction to hear the appeal?

[15] As a preliminary issue, the respondents raised the issue of this court’s jurisdiction to hear the appeal, given that s. 7 of the Partition Act, R.S.O 1990, c. P.4 states that an appeal from any order made under the Act lies to the Divisional Court.

[16] Section 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), gives this court jurisdiction to “hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal.”

[17] While the application judge’s order included relief under the Partition Act related to the Galt property, it also included the relief of a writ of possession related to the Bristol Property under r. 60.10 of the Rules of Civil Procedure. The respondent concedes that the relief relating to the Bristol Property was not granted under the Partition Act.

[18] Accordingly, this case may be distinguished from the circumstances of Webster v. Groszman, 2021 ONCA 55; and 2650971 Ontario Inc. v. Shameti, 2022 ONCA 62, relied on by the respondents, where this court found it did not have jurisdiction to hear the appeal because all the relief in the final order flowed from the sale of a property under the Partition Act. We conclude that this case is more analogous to Billimoria v. Mistry, 2022 ONCA 276, 470 D.L.R. (4th) 406, where this court found it did have jurisdiction to hear the appeal under s. 6(2) of the CJA. In Billimoria, the final order included a declaration regarding each parties’ percentage ownership in the property at issue, which did not flow from the Partition Act. This court held that “[a]lthough appeals from orders made under the Partition Act lie to the Divisional Court, the appeal from the final judgment determining the ownership of the property lies to this court, and this court has jurisdiction to deal with all the issues on appeal pursuant to s. 6(2) of the Courts of Justice Act”: at para. 21.

[19] Following Billimoria, as this court has jurisdiction over the appeal regarding the writ of possession concerning the Bristol property, we conclude that s. 6(2) of the CJA provides this court jurisdiction to hear the appeal against the order under the Partition Act relating to the Galt property as well.

. Binance Holdings Limited v. Ontario Securities Commission

In Binance Holdings Limited v. Ontario Securities Commission (Ont CA, 2024) the Ontario Court of Appeal grants an appeal motion to consolidate to the Court of Appeal (CA) an appeal from the Divisional Court with one already in the CA [under CJA 6(2-3)]:

[1] The moving party, Binance Holdings Limited, seeks an order under ss. 6(2) and (3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, joining two appeals: (1) its appeal to the Divisional Court from an April 30, 2024 decision of the Ontario Securities Commission; and (2) its appeal to the Court of Appeal from a September 28, 2023 decision of the Divisional Court for which it was granted leave to appeal on September 13, 2024.

[2] Binance submits that the appeals are “in the same proceeding” for the purposes of s. 6(2) of the Courts of Justice Act, as they involve identical challenges to the constitutionality of a summons issued by an Ontario Securities Commission investigator pursuant to an investigation order under the Securities Act, R.S.O. 1990, c. S.5. In addition, it argues that combining the appeals comports with the administration of justice.

[3] The responding party, the Ontario Securities Commission, resists this request. It maintains that the two appeals are not “in the same proceeding” as required by s. 6(2) of the Courts of Justice Act and, even if they could be so considered, I should not exercise my discretion to permit the requested order combining the appeals. It argues that: such an order would result in delay; the issues at the core of the two appeals are distinct; the risk of inconsistent decisions is low; and Binance ought not to be permitted to bypass the normal appellate hierarchy that is reflective of legislative intent.

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Test for Combining Appeals

[16] Sections 6(2) and (3) of the Courts of Justice Act govern combining appeals. Those provisions state:

(2) The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal.

(3) The Court of Appeal may, on motion, transfer an appeal that has already been commenced in the Divisional Court or the Superior Court of Justice to the Court of Appeal for the purpose of subsection (2).

[17] The test for combining appeals is twofold. First, given the language of subsection (2), the appeals must be in the same proceeding. Provided that threshold is met, the court must then consider whether separate appeals in different courts or combining the appeals in the Court of Appeal better comports with the administration of justice: Cavanaugh v. Grenville Christian College, 2013 ONCA 139, 360 D.L.R. (4th) 670, at para. 87, and Davis v. Amazon Canada Fulfillment Services, ULC, 2023 ONCA 634, at para. 8. Factors that may be considered in the exercise of that discretion include: the risk of inconsistent results; the extent of overlap in the two appeals; and whether combining the two appeals is contraindicated due to different issues in the two appeals: Davis, at para. 9.

[18] To these factors, I would add two others: what prejudice, if any, arises as a result of a combination of appeals; and whether a combination secures the just, most expeditious and least expensive determination of the issues in the appeals on their merits. This latter phraseology derives from r. 1.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which is stated to apply to the Rules. That provision is silent on the Courts of Justice Act. While there are some provisions of that Act to which such a provision would be inapt, I see no reason not to consider those factors in the exercise of a discretion relating to combining appeals pursuant to s. 6(2).

[19] The first issue to consider is whether the two appeals in issue on this motion are in the same proceeding.

[20] This issue is not one of first impression for this court. In Confederation Trust Co. v. Donofrio (1994), 1994 CanLII 999 (ON CA), 73 O.A.C. 132 (C.A.), 33 appeals arose from separate actions and some appeals lay to Divisional Court. Nonetheless, Laskin J.A. determined that he had jurisdiction under s. 6(2) of the Courts of Justice Act to allow all of the appeals to be heard by the Court of Appeal. Similarly, in McLeod v. Castlepoint Development Corp. (1997), 1997 CanLII 12080 (ON CA), 31 O.R. (3d) 737 (C.A.), Moldaver J.A. (as he then was), writing for the panel, considered whether this Court had jurisdiction under s. 6(2) to hear an appeal from an order overruling a Land Titles Deputy Director’s decision under the Land Titles Act, R.S.O. 1990, c.L.5 and an order arising from a separate application to court. The former provided for an appeal to the Divisional Court and the latter to the Court of Appeal. He wrote at para. 35:

While the matter is not entirely free from doubt, I am satisfied that this Court has jurisdiction under s. 6(2) of the Courts of Justice Act. In this regard, I note that both appeals relate to the same subject matter; that the grounds of appeal and legal issues raised are identical in each; that MacKinnon J. heard and disposed of the application and the appeal from the Deputy Director together and that the order under appeal incorporates both matters. I note as well that the respondents did not raise the jurisdictional issue in their written material, nor did they pursue it when it was brought to their attention by the court in oral argument. Indeed, they submitted that it would be appropriate for the court to determine all aspects of the appeal. Accordingly, in the particular circumstances of this case, I am of the view that jurisdiction lies with this Court.

[21] The moving party relies on McLeod v. Castlepoint Development Corp. and Confederation Trust Co. v. Donofrio and urges me to adopt a purposive approach that focuses on the substance of the dispute and that interprets the language in s. 6(2) as meaning appeals that relate to the same lis or dispute. It argues that by enacting ss. 6(2) and (3), the Legislature provided a mechanism to avoid inefficiencies, reduce costs, and avoid inconsistent results and these provisions should be interpreted in that light. It argues that both of its appeals relate to the same dispute or lis, and involve identical factual and legal issues relating to the constitutionality of the summons and the jurisdiction of the Ontario Securities Commission to hear the challenges.

[22] The Ontario Securities Commission acknowledges that the parties and issues overlap but submits that the decisions are legally distinct proceedings, as they were decided by two different adjudicators following two different hearings arising from two different originating processes. It argues that the cases relied upon by the moving party were unique decisions that turned on their particular facts. It particularly relies on Wright v. Strauss, 2019 ONCA 844.

[23] That case involved an appeal from an order striking a notice of application challenging the transfer of a mortgage from a family company to a trust and an appeal of a second order striking a statement of claim challenging the validity of the trust. One appeal lay to the Divisional Court and the other to the Court of Appeal. This court determined that it did not have jurisdiction under s. 6(2) as the appeals involved legally distinct proceedings each with its own originating process.

[24] I find in favour of Binance on the first component of the test.

[25] Although I accept that the two cases relied upon by Binance are factually different, this court determined in both that the words “in the same proceeding” could encompass proceedings commenced by different originating processes. Thus, the fact that two procedural routes were taken does not preclude the application of s. 6(2).

[26] In this case, both appeals involve the same parties, the same facts and the same legal issues, and they have the same legal origin, namely the investigation order and the summons. In contrast, Wright involves two appeals concerning distinct legal issues.

[27] In my view, Binance has met the first hurdle associated with its request for a combination order.

[28] I turn now to the second component of the test. Again, I conclude that it favours Binance’s position.

[29] I agree with Binance that combining the appeals will permit this court to fully and finally resolve which body has original jurisdiction to review and quash a summons issued by an investigator under s. 13(1) of the Securities Act, the issue raised in both appeals. Neither the Capital Markets Tribunal nor the Ontario Securities Commission would take jurisdiction. Meanwhile, the Divisional Court said that an unpursued avenue was an application to quash the summons before the Ontario Securities Commission under s. 144(1).

[30] Moreover, there is a risk of inconsistent findings on whether the Ontario Securities Commission has jurisdiction to quash a summons under s. 144(1).

[31] Further, there are no issues that contraindicate combining appeals and no real or compelling prejudice has been identified by the Ontario Securities Commission. The request to stay the summons was refused, and combining the appeals will permit the matters to be heard by just one court rather than two, since leave to appeal the Divisional Court’s order was granted by this court.

[32] Lastly, combining appeals secures the just, most expeditious and least expensive determination of the issues in the appeals on their merits. In that regard, to ensure that there is no further delay, I am ordering that the hearing of the appeals be expedited.

[33] For these reasons, the motion is granted. I order that: (1) Binance’s appeal to the Divisional Court be transferred from the Divisional Court to this court; (2) the transferred appeal be heard in combination with Binance’s appeal to this court; (3) both appeals be expedited; and, as agreed by the parties, the respondent shall pay costs of $2,500 to Binance.