Court File and Parties

Court of Appeal for Ontario

Date: 2024-11-27 Docket: COA-24-CV-1036

Fairburn A.C.J.O., Coroza and Sossin JJ.A.

Between:

Kristen Heegsma, Darrin Marchand, Gord Smyth, Mario Muscato, Shawn Arnold, Bradley Caldwell, Christine Delorey, Glenn Gnatuk, Taylor Gogo-Horner, Cassandra Jordan, Julia Lauzon, Ammy Lewis, Ashley MacDonald, Corey Monahan, Misty Marshall, Sherri Ogden, Jahmal Pierre, Linsley Greaves and Patrick Ward Applicants (Respondents)

And:

City of Hamilton Respondent (Respondent)

And:

Ontario Human Rights Commission Proposed Intervener (Appellant)

Counsel:

Reema Khawja and Alisha Krishna, for the appellant Ontario Human Rights Commission Sujit Choudhry, for the respondents Kristen Heegsma, Darrin Marchand, Gord Smyth, Mario Muscato, Shawn Arnold, Bradley Caldwell, Christine Delorey, Glenn Gnatuk, Taylor Gogo-Horner, Cassandra Jordan, Julia Lauzon, Ammy Lewis, Ashley MacDonald, Corey Monahan, Misty Marshall, Sherri Ogden, Jahmal Pierre, Linsley Greaves and Patrick Ward Jennifer L. King, for the respondent City of Hamilton

Heard: November 14, 2024

On appeal from the order of Justice James A. Ramsay of the Superior Court of Justice, dated September 13, 2024.

Fairburn A.C.J.O.:

A. Overview

[1] This is an appeal from a decision denying the Ontario Human Rights Commission (“OHRC”) leave to intervene in an application before the Superior Court of Justice. The application is set to commence on December 16, 2024. It involves 19 individuals (the “applicants”) who erected tents or shelters (“encampments”) in various public parks in Hamilton, Ontario. The applicants were evicted from those encampments by the respondent City of Hamilton pursuant to several municipal by-laws. The applicants now challenge the constitutionality of various sections of those by-laws under ss. 7 and 15 of the Canadian Charter of Rights and Freedoms.

[2] Along with the Canadian Civil Liberties Association, the British Columbia Civil Liberties Association and the Women’s Legal Action Fund, the OHRC sought leave to intervene as friends of the court in the underlying application. The motion for intervention was brought pursuant to r. 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[3] The applicants in the underlying application consented to the motion to intervene and the respondent City of Hamilton did not oppose.

[4] The motion was heard in writing. On September 13, 2024, the application judge issued an endorsement denying all motions for leave to intervene. His reasons for dismissing the motion are as follows:

The [Canadian Civil Liberties Association], [Women’s Legal Action Fund], the [British Columbia Civil Liberties Association] and the Ontario Human Rights Commission seek leave to intervene. The Applicants, who are very well-represented, propose to file expert evidence on the impact of the by-law in question and to make argument with respect to constitutional implications, the effect of international law and the particular impact of the by-law on vulnerable communities, including women. I do not think that the proposed interveners have much to add.

The applications to intervene are dismissed.

[5] The OHRC appeals from the order dismissing their motion to intervene. They claim multiple errors on the part of the motion judge (who is also the application judge), including that he misapprehended and misapplied the law on intervention and failed to provide adequate reasons.

[6] I would quash this appeal for want of jurisdiction. For the reasons that follow, I conclude that this court does not have jurisdiction to hear an appeal from the dismissal of a motion for leave to intervene as a friend of the court.

B. The Hearing

[7] In their written submissions, the OHRC submitted that the “decision denying leave to intervene is a final order as it disposes of the OHRC’s ability to participate in the Application.” In support of this proposition, the OHRC cited to Maybank Foods Inc. Pension Plan v. Gainers Inc. (1990), 77 D.L.R. (4th) 236 (Ont. C.A.). In Maybank, at para. 12, this court said that “[a]n order refusing intervener status is a final order”. In that case, the appeal was ultimately dismissed because this court found that the weekly court judge had properly exercised his discretion in refusing the request for party intervener status pursuant to r. 13.01(1)(b) of the Rules of Civil Procedure.

[8] During oral submissions, the OHRC was asked for further input regarding this court’s jurisdiction to hear this appeal. The OHRC then also pointed to this court’s decision in Bedford v. Canada (Attorney General), 2009 ONCA 669, 98 O.R. (3d) 792. In Bedford, this court granted an appeal from a decision denying intervener status in circumstances similar to this case, where the motion for intervener status as a friend of the court was made pursuant to r. 13.01(2) of the Rules of Civil Procedure.

C. Interlocutory vs Final Orders

[9] This court has jurisdiction to hear final, not interlocutory, orders of the Superior Court. Section 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, provides that an appeal to this court lies from “a final order of a judge of the Superior Court of Justice”. By contrast, s. 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.”

[10] Determining the dividing line between a final and interlocutory order has attracted much attention in the jurisprudence. In my view, when the principles are properly applied, this matter falls on the side of an interlocutory order.

[11] While there has been some suggestion in the past that Smerchanski v. Lewis (1980), 30 O.R. (2d) 370 (C.A.), at pp. 377-78, stood for the proposition that an order finally disposing of an issue between a party and non-party or a “stranger to the action” is a final order for purposes of appeal to this court, this suggestion has since been rejected. In Royal Trust Corporation v. Fisherman (2001), 55 O.R. (3d) 794 (C.A.), at para. 16, this court explained: “Smerchanski was not intended to mean that all orders directed to a non-party must be final, and the principle expressed therein should not be further expanded in that way.”

[12] Since the time of Smerchanski and Royal Trust Corporation, there has been significant discussion around how to identify the dividing line between interlocutory and final orders. At its core, an interlocutory order is one that does not determine the “real matter in dispute between the parties — the very subject matter of the litigation — or any substantive right”: Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 16; Paulpillai Estate v. Yusuf, 2020 ONCA 655, at para. 16. Although an order will undoubtedly answer the question raised by the relevant motion, it remains interlocutory in nature if the substantive matters lying at the heart of the subject matter of the litigation remain undecided: Drywall Acoustic, at para. 16, citing Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), at p. 678 and Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.).

[13] In determining whether this test is met, one must 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”: Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, 142 O.R. (3d) 317, at para. 7; Paulpillai Estate, at para. 16; and P1 v. XYZ School, 2021 ONCA 901, 160 O.R. (3d) 445, at para. 12.

D. Party vs Friend Interventions

[14] In my view, a decision to deny intervention in a matter as a friend of the court will not have the effect of impacting the non-party’s substantive rights as they are not in play. To the contrary, the proposed intervention as a friend of the court is predicated, not on the non-party’s substantive interests, but on their expertise and how that expertise may be of assistance to the court. 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 intervention status to a proposed party intervener precludes them from participating in litigation that they say will directly or indirectly impact them at some level, in accordance with the criteria set out in r. 13.01 of the Rules of Civil Procedure.

[15] Rules 13.01 and 13.02 of the Rules of Civil Procedure address leave to intervene as a party and as friend of the court:

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.

[16] As can be seen, there exists a fundamental difference between motions to intervene as a party (r. 13.01(1) and (2)) and motions to intervene as a friend of the court (r. 13.02). In broad strokes, and in accordance with r. 13.01(1), resolving a motion for intervention as a party to the proceedings requires the court to consider how the proceedings may impact the proposed intervener. By denying a motion for leave to intervene to a proposed party intervener, the moving party is denied the opportunity to contribute to the underlying litigation that they say will have a direct impact on their interests. This consideration is entirely absent from a r. 13.02 motion which focusses, not on how the proposed intervener might be impacted by the proceedings, but how the proposed intervener might assist the court in the proceedings.

[17] While both types of interventions – party and friend – are discretionary in nature, they serve different purposes which I conclude informs the jurisdictional question in this matter. Party interventions focus on ensuring that non-parties who may be impacted by the litigation are given an opportunity to participate in appropriate circumstances. Friends of the court intervention motions are focussed upon whether the court will be assisted by the proposed intervention, not on whether their substantive rights might be impacted by the underlying proceeding.

[18] This brings us to the question of when this court has jurisdiction to hear an appeal from a decision denying intervention.

[19] In Maybank, a decision relied upon by the OHRC to suggest that this court has jurisdiction in this appeal, the court concluded that it had such jurisdiction. But that conclusion must be read in its full context, most specifically that the proposed intervener was seeking party intervener status pursuant to r. 13.01(1)(b), claiming that they could be adversely impacted by a judgment resulting from the underlying proceedings.

[20] Similarly, in Hollinger Inc. v. The Ravelston Corp., 2008 ONCA 207, 89 O.R. (3d) 721, where this court unanimously concluded that the denial of intervention status was final in nature, the matter was decided in the context of an application for party intervener status: see the decision appealed from, Hollinger Inc. v. Ravelston Corporation Ltd., 83 O.R. (3d) 258 (S.C.).

[21] The only decision that remains an outlier, which I must address, is Bedford, where this court allowed an appeal from the dismissal of a motion for leave to intervene as a friend of the court. As noted at the outset, in addition to Maybank, the OHRC relies upon the Bedford decision to suggest that this court has jurisdiction to hear this appeal. It is understandable why the OHRC points to Bedford in support of its position on jurisdiction as the case involved an appeal from the dismissal of a motion for leave to intervene as a friend of the court.

[22] While the OHRC is correct that this court exercised jurisdiction in that appeal, ultimately allowing the appeal and granting the intervener status requested, the issue of jurisdiction was neither raised nor decided on appeal. This is the only decision of this court that has been drawn to our attention that involves an appeal from this type of order.

[23] In my view, Bedford is not determinative of the jurisdictional question before this court. The fact that the court in Bedford exercised jurisdiction is only discernable in hindsight by necessary implication. The Bedford court did not pronounce any principle of law relating to jurisdiction and it should not be taken as such. 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. To the contrary, where the issue of jurisdiction is neither raised nor decided on appeal, a decision of this court exercising jurisdiction does not establish that jurisdiction in a subsequent appeal: Singh v. Heft, 2022 ONCA 135, at para. 15; CIBC Mortgages Inc. (FirstLine Mortgages) v. Computershare, 2015 ONCA 846, 342 O.A.C. 49, at para. 12. Accordingly, Bedford is not determinative of this court’s jurisdiction.

[24] In my view, this court has no jurisdiction to hear an appeal from the dismissal of a motion for leave to intervene as a friend of the court. Quite simply, the proposed intervener’s substantive rights are not engaged during the motion or impacted as a result of the motion. To the contrary, the dismissal of a motion for leave to intervene as a friend of the court means only one thing, that the court does not need the offered assistance of the non-party in resolving the underlying proceedings. This is not a final order and not appealable to this court.

E. Conclusion

[25] In conclusion, there is no jurisdiction to hear this appeal.

[26] To be clear, nothing in these reasons should be taken as suggesting, had there been jurisdiction, that we would have found that the application judge erred.

[27] Appeal quashed for want of jurisdiction.

Released: November 27, 2024 Fairburn A.C.J.O. I agree. Coroza J.A. I agree. Sossin J.A.