The most interesting decision of the week for students of the Court was Heegsma v. Hamilton (City). In that case, the Ontario Human Rights Commission appealed an order of the Superior Court that dismissed its motion for leave to intervene as a friend of the court. The intervener motions of the Canadian Civil Liberties Association, the British Columbia Civil Liberties Association and the Women’s Legal Action Fund were also dismissed, but they did not appeal. The case involves a constitutional challenge to municipal by-laws that evicted homeless people who were living in tents and other shelters in various public parks in Hamilton. It is scheduled to be heard on December 16. The OHRC’s appeal was quashed for want of jurisdiction after the Court found that the order was interlocutory, not final. However, in doing so, the Court had to distinguish dismissals of motions to intervene as a party from motions to intervene as a friend of the court. Prior case law of the Court treats the former as final orders, and therefore there is an automatic right of appeal from the dismissal of motions to intervene as a party. The reason given by the Court for distinguishing between the two is that a litigant who seeks to intervene as a party could potentially be affected by the result and therefore such an order is final as it relates to their interests. The focus on such motions is whether the proposed intervener’s interests will be affected, such that they should be given intervener status. However, a motion to intervene as a friend of the court does not affect the proposed intervener’s interests, and therefore is an interlocutory order. The focus of motions to intervene as a friend of the court is on whether the proposed intervener can be of assistance to the court, not whether their substantive rights might be impacted by the decision in the case.
In coming to its conclusion, the Court had to decline to follow its own decision in Bedford v. Canada (Attorney General), 2009 ONCA 669 (which was a constitutional challenge to the criminalization of prostitution that was successful all the way up to the Supreme Court of Canada). The Court in Bedford had allowed an appeal from the dismissal of a motion by various public interest groups to intervene as friends of the court in that case. There was no discussion in that decision about whether the order appealed from was final or interlocutory or whether the Court had jurisdiction to hear the appeal. Citing prior case law, the Court in Heegsma confirmed that a decision by the Court in one appeal where the issue of jurisdiction is not considered or discussed (such as in Bedford) is not authority to establish the Court’s jurisdiction in a similar subsequent appeal. The lesson is that counsel need to beware of relying on decisions in support of the Court’s jurisdiction where the issue of jurisdiction was not discussed, as those decisions are of no precedential value.
I don’t comment very often on whether the Court got it right (it usually does). However, I feel compelled to provide my thoughts on this decision (they are my own). With respect, it seems to me that the Court could have just as easily decided the other way and found that the dismissal of both types of motions are final orders, since they both finally decide that someone cannot be an intervener. That would have resulted in more consistency in the law regarding what is and is not a final order, since both types of intervener motions seek the same ultimate relief and are bought under the same rule (Rule 13). Moreover, I would have thought that such a result would have been preferable from a policy perspective. Interveners should be encouraged to come forward in public interest litigation, and this decision discourages interveners from pressing their request to be heard. On the facts of this case, it seems like a lost opportunity that there will be no intervener at the hearing of the application in what appears to be a very important case regarding the rights of indigent people and the use of public spaces. It would have been easy to justify allowing the appeal in this case. The decision of the motion judge who dismissed the intervener motions was one paragraph long. The proposed intervener in this case was not just any proposed intervener. One would have thought that the Human Rights Commission would have had something useful to say about the issues in this case. Whether intentional or not, the effect of this decision is to make it more difficult to intervene in public interest litigation. There is a good chance this case ends up in the Court of Appeal again following a decision by the Superior Court on the merits. The OHRC and the other advocacy groups whose motions were dismissed will have another opportunity to seek intervener status on the appeal.
In Trop v. Trop, Blaney McMurtry’s very own Jim Edney successfully argued that a husband’s motion for a stay of a financial disclosure order pending an appeal in a family law case should be dismissed. The Court held that the husband was not attorning to the jurisdiction by complying with the order and could continue with his jurisdictional challenge.
In Temagami Barge Limited v. Ontario, the Court dismissed an appeal for a stay of an injunction that barred the appellants from conducting certain commercial activities on their property that had been found to be in breach of a municipal bylaw. The Court found no irreparable harm if the stay was not granted and emphasized that the public interest in enforcing the bylaw tipped the balance of convenience scales in favour of the municipality.
Other topics covered this week included equalization of net family property, enforcement of evictions orders under the Residential Tenancies Act due to non-payment of rent, MVA, summary judgment and security for costs.
Table of Contents
Civil Decisions
Keywords: Family Law, Motions, Duty to Disclose Financial Disclosure, Production Order, Jurisdiction, Stay, Interlocutory Injunction, RJR-MacDonald Inc. v. Canada (Attorney General), [1994], 1 S.C.R. 311, Pannone v. Peacock, 2022 ONCA 520, Fatahi-Ghandehari v. Wilson, 2016 ONCA 921, Wachsberg v. Wachsberg, 2018 ONCA 508, M. v. H., [1996] O.J. No. 540 (Ont. C.A. – In Chambers), Yaiguaje v. Chevron Corporation, 2014 ONCA 40, leave to appeal dismissed, [2018] S.C.C.A. No. 255, Sakab Saudi Holding Company v. Al Jabri, 2021 ONCA 548, BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Van Damme v. Gelber, 2013 ONCA 388, leave to appeal refused, [2013] S.C.C.A. No. 342, Roberts v. Roberts, 2015 ONCA 450, Husid v. Daviau, 2012 ONCA 469, Dickie v. Dickie, 2007 SCC 8
Temagami (Municipality) v. Temagami Barge Limited, 2024 ONCA 859
Keywords: Municipal Law, Land Use Planning, By-Laws, Enforcement, Remedies, Injunctions, Civil Procedure, Appeals, Stay Pending Appeal, Municipal Act, 2001, S.O. 2001, c. 25, s. 447.1, Planning Act, R.S.O. 1990, c. P.13, s. 34(9), Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Longley v. Canada (Attorney General), 2007 ONCA 149, Zafar v. Saiyid, 2017 ONCA 919, Saint-Romuald (City) v. Olivier, 2001 SCC 57, [2001] 2 S.C.R. 898, Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441, Syntex Inc. v. Novopharm Ltd. (1991), 36 C.P.R. (3d) 129, Daniel v. Canada (Minister of Citizenship and Immigration), 2007 FC 392, M & M Homes Inc. v. 2088556 Ontario Inc., 2020 ONCA 134, Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, Maple Ridge (District of) v. Thornhill Aggregates Ltd. (1998), 54 B.C.L.R. (3d) 155 (C.A.), Saskatchewan (Minister of Environment) v. Redberry Development Corp., [1987] 4 W.W.R. 654 (Sask. Q.B.), Royal Canadian Horse Artillery Brigade Assn v. Kingston (City), 2003 CanLII 49319 (Ont. S.C.)
Heegsma v. Hamilton (City), 2024 ONCA 865
Keywords: Civil Procedure, Jurisdiction, Leave to Intervene as Friend of the Court, Appeals, Canadian Charter of Rights and Freedoms, ss. 7 and 15, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 6(1)(b(), Rules of Civil Procedure, rr. 13.01 and 13.02, Maybank Foods Inc. Pension Plan v. Gainers Inc. (1990), 77 D.L.R. (4th) 236 (Ont. C.A.), Bedford v. Canada (Attorney General), 2009 ONCA 669, Smerchanski v. Lewis (1980), 30 O.R. (2d) 370 (C.A.), Royal Trust Corporation v. Fisherman (2001), 55 O.R. (3d) 794 (C.A.), Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Paulpillai Estate v. Yusuf, 2020 ONCA, Hendrickson v Kallio, [1932] O.R. 675 (C.A.), Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, P1 v. XYZ School, 2021 ONCA 901, Hollinger Inc. v. The Ravelston Corp., 2008 ONCA 207, Hollinger Inc. v. Ravelston Corporation Ltd., 83 O.R. (3d) 258 (S.C.), Singh v. Heft, 2022 ONCA 135, CIBC Mortgages Inc. (FirstLine Mortgages) v. Computershare, 2015 ONCA 846
Short Civil Decisions
Potofsky v. Chen, 2024 ONCA 862
Keywords: Contracts, Real Property, Leases, Residential Tenancies, Default, Non-Payment of Rent, Enforcement, Eviction Orders, Civil Procedure, Leave to Appeal, Extension of Time, Stay Pending Appeal, Rules of Civil Procedure, r. 61.03.1(3)(a), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Sault Dock Co. Ltd. v. Sault Ste. Marie (City), [1973] 2 O.R. 479 (C.A.), Shearer v. Oz, 2021 ONSC 7844 (Div.Ct.), RJR-Macdonald v. Canada (Attorney General), [1994] 1 S.C.R. 311, Louis v. Poitras, 2020 ONCA 815
Leith v. Leith Estate, 2024 ONCA 863
Keywords: Family Law, Wills and Estates, Property, Equalization of Net Family Property, Remedies, Constructive Trusts, Civil Procedure, Directions, Appeals, Extension of Time, Stay Pending Appeal, Family Law Act, R.S.O. 1990, c. F.3, ss. 5-7
Asghar v. Dial and File Process Servers Inc., 2024 ONCA 864
Keywords: Consumer Protection, Deceptive Marketing, Torts, Fraud, Misrepresentation, Malicious Falsehoods, Breach of Contract, Duty of Good Faith, Consumer Protection Act, 2002, S.O. 2002, c. 30, Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922
Morales v. Laguardia, 2024 ONCA 869
Keywords: Torts, Negligence, MVA, Civil Procedure, Summary Judgment, Standard of Review, Expert Evidence, Housen v. Nikolaisen, [2002] 2 S.C.R. 235, Gill v. Canadian Pacific Railway, [1973] S.C.R. 654
Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Security for Costs, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 71, Rules of Civil Procedure, rr. 61.13(3.1) and r. 72.03(1)