Court of Appeal for Ontario

Date: 2025-07-22
Docket: M55895 (COA-25-CV-0166)
Coram: Trotter, Thorburn and Wilson JJ.A.

Between:
Kristen Heegsma, Darrin Marchand, Gord Smyth, Mario Muscato, Shawn Arnold, Cassandra Jordan, Julia Lauzon, Ammy Lewis, Ashley Macdonald, Corey Monahan, Misty Marshall, Sherri Ogden, Jahmal Pierre, and Linsley Greaves
Applicants (Appellants/Responding Parties)

and

City of Hamilton
Respondent (Respondent/Moving Party)

Appearances:
Bevin Shores and Jennifer L. King, for the moving party/respondent, City of Hamilton
Sujit Choudhry, Sharon Crowe and Wade Poziomka, for the responding parties/appellants, Kristen Heegsma et al.

Heard: 2025-05-09

Thorburn J.A.:

A. Overview

[1] The central question on this motion is whether this court can hear and determine the responding parties’ appeal of two interlocutory orders along with their appeal of the application judge’s final order.

[2] The two interlocutory orders were made before the application was heard and the responding parties did not seek leave to appeal either order from the Divisional Court.

[3] The responding parties now appeal the final order dismissing their claim for damages for breaches of their ss. 7 and 15 rights under the Canadian Charter of Rights and Freedoms to this court.

[4] Ground 3 of the Notice of Appeal pertains to the interlocutory order made on November 12, 2024, excluding some of the evidence of physicians that addresses the responding parties’ vulnerabilities, and the harms of sheltering restrictions and evictions on them.

[5] Ground 1 of the Notice of Appeal relates to the interlocutory order made on December 4, 2024. This order struck documents which contain data regarding the number of homeless persons, shelter bed capacity (broken down by sex), and the demographic breakdown of Hamilton’s homeless (by sex and Indigenous identity).

[6] The City of Hamilton (the “moving party”) claims that Grounds 1 and 3 should be struck from the Notice of Appeal on the basis that the issues decided by the interlocutory orders are res judicata and the responding parties’ attempt to relitigate them now, by way of an appeal of the final order, constitutes an abuse of process and a collateral attack on the interlocutory orders, as such orders must be appealed to the Divisional Court.

[7] The moving party claims the documents in the Certificate Respecting Evidence that were excluded from the record pursuant to the interlocutory orders should be struck from this Appeal Record as “none of the documents had been adduced in any affidavit or exhibit to any cross-examination, and many of them had not been admitted to be authentic.”

[8] The responding parties claim the evidence excluded by virtue of the two interlocutory orders are inextricably linked and “integrally related to the substance of the broader appeal” such that leave would inevitably have been granted to appeal the interlocutory orders.

[9] The grounds for the appeal of the final order include, among other grounds, that the application judge (i) committed errors of law leading him to find the moving party’s sheltering restrictions and evictions did not violate ss. 7 or 15 of the Charter, and that Charter damages were not appropriate; and (ii) failed to comply with Rule 51 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and applied the wrong test in striking evidence of harm experienced by those subject to living restrictions.

[10] The responding parties therefore take the position that this court should hear the appeal of these two interlocutory orders excluding evidence, because the application judge made errors of law in these orders and excluded evidence that directly supports their claim on the appeal of the final order, that the shelter restrictions and evictions breached their Charter rights resulting in damages.

[11] For the reasons that follow, I would dismiss the moving party’s motion.

B. Background Facts

[12] The responding parties are 14 unhoused persons from Hamilton, Ontario. Between August 2021 and August 2023, they erected tents in public parks, in contravention of a municipal by-law. The moving party enforced the by-law and evicted them. The responding parties claim the sheltering restrictions and evictions constitute discrimination on the basis of sex, race, and the intersection of sex and race contrary to ss. 7 and 15 that were not justified under s. 1 of the Charter.

[13] On November 12, 2024, the application judge issued an interlocutory order excluding some of the evidence in physician affidavits attesting to the harm experienced by the responding parties due to restrictions and evictions. This evidence is the subject of Ground 3 of the Notice of Appeal which provides that,

The Application Judge erred in law by applying the wrong legal test in excluding some of the evidence from the Appellants’ doctors in his Endorsement of November 12, 2024, which included relevant evidence of the Appellants’ experience of sheltering restrictions and evictions and the resulting harms. [Emphasis added.]

[14] On December 4, 2024, the application judge issued a second interlocutory order excluding documents that contained monthly data on the numbers of actively homeless persons, their sex, shelter bed capacity, and the demographic breakdown of Hamilton’s homeless by sex and Indigenous identity. He held that,

It is the eve of the hearing. I cannot very well let the parties exchange materials on this simple motion about whether three volumes of City documents of various sorts should be admitted into evidence. They are not necessary to understand the issues. The motion was heard at the case conference. The parties knew ahead of time that they had 10 minutes for oral argument on this simple discrete point. Leave is given the respondents to bring the motion without further formality. It is allowed for these reasons.

Volumes XVIII, XIX and XX of the application record might have been admissible if they had been introduced before cross-examinations but admitting them now would be prejudicial to the respondents. The expert witnesses could have relied on the documents in their affidavits or in cross-examination. The requests to admit authenticity do not constitute notice that the documents would be admitted into evidence. These three volumes of the application record are struck.

[15] These documents are the subject of Ground 1 of the Notice of Appeal which provides that,

The Application Judge erred in law by striking Volumes 18 (as amended), 19, and 20 of the Application Record in his Endorsement of December 4, 2024, containing the Appellants’ Requests to Admit attaching the Respondent’s public documents, and the Respondent’s Responses to Requests to Admit admitting the authenticity of these documents, because he failed to comply with Rule 51 of the Rules of Civil Procedure, whereby authenticated documents become part of the record without the need to be adduced by a witness, by superimposing the additional requirement that any party seeking to rely on authenticated documents must make them exhibits to an affidavit or cross-examination. [Emphasis added.]

[16] On December 5, 2024, the responding parties indicated that they would seek leave to appeal from the December 4, 2024 order. On December 6, 2024, the moving party indicated that they would contest any request to adjourn the application.

[17] On December 9, 2024, the responding parties indicated that they would no longer be seeking leave to appeal.

[18] The application was heard on December 16 to 18, 2024, without the evidence that was excluded pursuant to the two interlocutory orders. On December 23, 2024, the application judge issued a final order dismissing the responding parties’ application for violation of their ss. 7 and 15 Charter rights.

[19] On January 22, 2025, the responding parties appealed the final order dismissing their Charter challenge to this court but did not seek leave to appeal the two interlocutory orders to the Divisional Court.

[20] The responding parties now seek to include the appeal of the two interlocutory orders in their appeal of the final order to this court, to be heard with the appeal of the final order. Their Certificate Respecting Evidence on this appeal includes documents excluded by the two interlocutory orders, namely: (i) the physician affidavits without the redactions ordered by the application judge; and (ii) Volumes 18 to 20 of the Amended Application Record that include the responding parties’ Requests to Admit and the moving party’s Responses to Requests to Admit that were struck by the application judge and were excluded from evidence on the application.

[21] The moving party seeks an order denying the responding parties the right to have these two interlocutory orders heard with the appeal of the final order and an order to remove the documents excluded by the application judge, from the Appeal Record.

C. The Issues

[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.

D. The Positions of the Parties

[23] The moving party claims:

i. this court has no jurisdiction to hear the appeal of the two interlocutory orders because leave was never sought from the Divisional Court and the 15 day timeframe for seeking leave to appeal has expired;

ii. the issues are not “so interrelated” that leave should now be granted; and

iii. because the interlocutory orders were not appealed before the application was heard, to include those documents that were excluded pursuant to the interlocutory orders on this appeal, would contravene the principles of res judicata and abuse of process.

[24] The responding parties claim that they should be permitted to appeal the two interlocutory orders, which should be heard at the same time as the appeal of the final order. They claim the subject-matter of the two interlocutory orders is inextricably linked to the final order dismissing their Charter challenge, which was properly appealed to this court.

[25] On their appeal of the final order, the responding parties claim that the application judge made errors of law by excluding (i) some of the evidence from the physicians in the November 12, 2024 order, and (ii) the monthly data on the numbers of actively homeless persons as categorized, when he dismissed the application for violation of the responding parties’ ss. 7 and 15 Charter rights. They further claim that allowing them to appeal these two interlocutory orders will not dispose of any issues on appeal; it will simply amplify the record. As such, it would not constitute an abuse of process.

E. Analysis

(a) Jurisdiction to Appeal Interlocutory Orders

[26] Sections 6(1)(b) and 19(1)(b) of the Courts of Justice Act, RSO 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), paras. 15-16; Mader v. South Easthope Mutual Insurance Co., 2014 ONCA 714, para. 55; Brown v. Hanley, 2019 ONCA 395, paras. 19-20.

[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, paras. 33-38; P1 v. XYZ School, 2021 ONCA 901, paras. 37-39, citing Lax v. Lax, 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 v. XYZ School, 2021 ONCA 901, paras. 38-39, 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 v. Lax, 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, para. 17; and Azzeh v. Legendre, 2017 ONCA 385, paras. 25-26, leave to appeal refused, [2017] S.C.C.A. No. 289.

[33] Most recently, in Carcillo v. Ontario Major Junior Hockey League, 2024 ONCA 685, 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, 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 v. Ontario Major Junior Hockey League, 2024 ONCA 685, 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.

Released: July 22, 2025

“G.T.T.”
“Thorburn J.A.”
“I agree. Gary Trotter J.A.”
“I agree. D.A. Wilson J.A.”