Court Of Appeal For Ontario Clarifies Appeal Route From A Motion For Leave To Intervene As A Friend Of The Court

• Published date: 15 January 2025
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Gowling WLG
• Author: Ms Erin Farrell, Jennifer King, Bevin Shores, Jordan Diacur and Taylor Rodrigues

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...