On November 27, 2024, the Court of Appeal for Ontario ("Court of Appeal") released its decision in Heegsma v Hamilton (City), 2024 ONCA 865 ("Heegsma"). The decision clarifies the appeal routes from a motion for leave to intervene. Notably, it confirms that the nature of the decision, and therefore the appeal route, is different depending on whether intervention is sought as a friend of the court or as a party. An appeal from a motion for leave to intervene as a friend of the court lies to the Divisional Court, with leave, while an appeal from a motion for leave to intervene as a party goes directly to the Court of Appeal.
The intervention motions
The underlying application in Heegsma involved a number of individuals challenging the constitutionality of municipal by-laws under the Canadian Charter of Rights and Freedoms in relation to tents or shelters they erected ("encampments") in various public parks in Hamilton, Ontario.
In the underlying application, the Ontario Human Rights Commission ("OHRC"), along with the Canadian Civil Liberties Association, the British Columbia Civil Liberties Association and the Women's Legal Action Fund, sought leave to intervene as friends of the court pursuant to rule 13.01(2) of the Rules of Civil Procedure.1 The intervention motion was heard in writing. On September 13, 2024, the application judge denied all motions for leave to intervene.
OHRC's appeal
The OHRC appealed the decision denying it leave to intervene to the Court of Appeal. The OHRC relied on s. 6(1)(b) of the Courts of Justice Act and the decision in Bedford v Canada (Attorney General), 2009 ONCA 669 ("Bedford"). In Bedford, the Court of Appeal granted an appeal from a decision denying intervener status as a friend of the court in circumstances similar to those in Heegsma.
Court of Appeal declines jurisdiction in Heegsma
The Court of Appeal's decision focuses on jurisdiction and appeal routes, concluding that the Divisional Court, and not the Court of Appeal, has jurisdiction over an appeal of denial of leave to intervene as a friend of the court. This was a matter raised in oral submissions, during which the Court asked the OHRC for further input regarding the Court's jurisdiction to hear the appeal.
Section 6(1)(b) of the Courts of Justice Act2 provides that an appeal to the Court of Appeal lies from "a final order of a judge of the Superior Court of Justice." The Court of Appeal therefore has jurisdiction to hear final, but not interlocutory, orders of the Superior Court.3 However, section 19(1)(b) of the Courts of Justice Act provides for an appeal to the Divisional Court from "an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court."
Interlocutory and final decisions
The Court of Appeal in Heegsma acknowledged that determining the dividing line between final and interlocutory orders has attracted much attention in the jurisprudence. The Court of Appeal provided helpful guidance on how to properly apply the legal principles to this question.
An interlocutory order does not resolve the main issue in a case or determine any substantive rights of the parties. In contrast, a final order disposes of the matter and is appealable. Previous cases, like the (sometimes misapplied) Smerchanski v Lewis, 1980 CanLII 1699 (ON CA) and Royal Trust Corporation v Fisherman, 2001 CanLII 4080 (ON CA) clarified that an order directed at a non-party is not automatically final.4
The Court of Appeal in Heegsma explained that a final order typically resolves the core issues of the case, whereas an interlocutory order, at its core, does not determine the real matter in dispute between the parties or any substantive right. A matter "remains interlocutory in nature if the substantive matters lying at the heart of the subject matter of the litigation remain undecided."5
The Court of Appeal confirmed that, in determining if an order is interlocutory or final, the court will look to the order, the reasons for the order, the nature of the proceedings from which the order has emerged, and any "contextual factors that may inform the nature of the order."6
Friend of the court vs added party interventions
To determine whether a decision to deny intervention in a matter as a friend of the court is final or interlocutory, the court considered the differences between a motion seeking leave to intervene as an added party versus as a friend of the court. Rules 13.01 and 13.02 of the Rules of Civil Procedure7 provide for two different avenues for seeking leave to intervene:
Leave to Intervene as Added Party
13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.
Leave to Intervene as Friend of the Court
13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or associate judge, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument. [Emphasis added.]
In Heegsma, the OHRC sought leave as a friend of the court.
Departing from the jurisdiction assumed by the Court of Appeal in Bedford, the Court of Appeal in Heegsma found that a decision to deny intervention in a matter as a friend of the court does not have the effect of impacting the non-party's substantive rights. To the contrary, a proposed intervention as a friend of the court is predicated, not on the non-party's substantive interests, but on their expertise.8 This stands in contrast to the denial of an intervention in a matter where the non-party seeks leave to intervene as a party. The denial of intervenor status to a proposed added party intervenor precludes the non-party from participating in litigation that will directly or indirectly impact them, in accordance with the criteria set out in r. 13.01 of the Rules of Civil Procedure.
The Court of Appeal therefore concluded it lacked jurisdiction to hear the OHRC's appeal in Heegsma, finding that a denial of leave to intervene as a friend of the court does not impact the proposed intervenor's substantive rights. The leave decision, when intervention is sought as a friend of the Court of Appeal, is an interlocutory order, not a final one. It is therefore appealable to the Divisional Court, with leave.
Conclusion
The Court of Appeal decision in Heegsma is a helpful clarification of the appeal route when denied leave to intervene. It is also a useful reminder that a decision of a court exercising jurisdiction in one case is not necessarily determinative of whether jurisdiction will be exercised in another case. Specifically, where the "issue of jurisdiction is neither raised nor decided on appeal, a decision of a court exercising jurisdiction does not establish that jurisdiction in a subsequent appeal."9 Associate Chief Justice Fairburn in writing the decision for the Court of Appeal noted that "it would create great uncertainty if the parties could impute principles of law to past decisions without any foothold in the actual reasoning of those decisions."
- Note: Gowling WLG was counsel to the City of Hamilton in the Heegsma matter.
Footnotes
1. RRO 1990, Reg 194.
2. RSO 1990, c C 43.
3. Heegsma v Hamilton (City), 2024 ONCA 865 at para 9.
4. Heegsma v Hamilton (City), 2024 ONCA 865 at para 11.
5. Heegsma v Hamilton (City), 2024 ONCA 865 at para 12, references omitted.
6. Heegsma v Hamilton (City), 2024 ONCA 865 at para 13, references omitted.
7. RRO 1990, Reg 194.
8. Heegsma v Hamilton (City), 2024 ONCA 865 at para 14.
9. Heegsma v Hamilton (City), 2024 ONCA 865 at para 23 citing Singh v Heft, 2022 ONCA 135 at para 15; CIBC Mortgages Inc (FirstLine Mortgages) v Computershare, 2015 ONCA 846 at para 12.
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