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Appeal - Interlocutory - When Unadvanced Interlocutory Appeals May be Heard with Main. 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.
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[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.
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