The Court of Appeal for Ontario Clarifies When Interlocutory Orders Can Be Appealed with a Final Order

In Heegsma v. Hamilton (City), the Court of Appeal for Ontario confirmed that parties can appeal interlocutory orders together with a final order if the issues are inextricably linked.

Heegsma seems to expand the circumstances in which a party may await the outcome of a proceeding on the merits before seeking to appeal interlocutory orders, in particular interlocutory orders concerning the exclusion of evidence. The Court of Appeal’s decision has potential implications for litigation strategy, particularly in proceedings by way of application.

The underlying application

Fourteen unhoused individuals in Hamilton, Ontario, brought an application against the City of Hamilton alleging that municipal sheltering restrictions and evictions violated their rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms. The applicants had erected tents in public parks contrary to a municipal by-law. The City enforced the by-law and evicted them.

Before the application was heard on its merits, the application judge made two interlocutory orders excluding evidence:

• on November 12, 2024, the judge excluded portions of physician affidavits detailing the alleged harms experienced by the applicants due to sheltering restrictions and evictions; and
• on December 4, 2024, the judge excluded documents containing data on the number of homeless persons, shelter bed capacity, and demographic breakdowns by sex and Indigenous identity.

The application proceeded without this evidence. On December 23, 2024, the application judge dismissed the Charter challenge.^[1]

The legal framework

Under Ontario’s Courts of Justice Act, appeals from final orders of the Superior Court of Justice lie to the Court of Appeal, while appeals from interlocutory orders generally lie to, and require leave from, the Divisional Court. However, section 6(2) of the Act provides an exception: if an appeal in the same proceeding lies to the Court of Appeal, and the interlocutory and final orders are “so interrelated that leave would inevitably have been granted on the interlocutory issue,” the Court of Appeal can assume jurisdiction over both.^[2]

The appeal

The applicants appealed the application judge’s final order to the Court of Appeal. They also sought to appeal the two interlocutory orders excluding evidence, even though they had not sought leave to appeal these orders to the Divisional Court within the 15-day window prescribed in the Rules of Civil Procedure.

The City’s motion

The City brought a motion to strike the grounds of appeal relating to the interlocutory orders. It argued that:

• the Court of Appeal lacked jurisdiction to hear appeals of the interlocutory orders because leave had not been sought from the Divisional Court within the 15-day timeframe;
• the issues were not “so interrelated” that leave would inevitably have been granted; and
• allowing the appeal would contravene the principles of res judicata and abuse of process.^[3]

The applicants countered that the excluded evidence was inextricably linked to the final order dismissing their Charter challenge, and that the Court of Appeal should hear all issues together. They also submitted this was not an abuse of process. According to the applicants, appealing the interlocutory orders together with the final order would allow the Court of Appeal to consider the complete record — or, more accurately, what the applicants submit should have been the complete record — in disposing of their appeal.

The Court of Appeal’s decision

The Court of Appeal dismissed the City’s motion. In a unanimous decision authored by Thornburn J.A., the Court of Appeal concluded that “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”.^[4] The Court of Appeal therefore had jurisdiction and it was appropriate to consider all of the issues together.

According to the Court of Appeal:

• the excluded evidence on shelter bed demand and demographic breakdowns was relevant to whether the sheltering restrictions and evictions constituted a deprivation of the applicants’ rights under sections 7 and 15 of the Charter; and
• the excluded evidence from physicians addressed the physical and psychological harms allegedly caused by the City’s actions, which was directly tied to the Charter claims.

The Court of Appeal emphasized that the exclusion of this evidence was not a peripheral issue but went to the heart of the constitutional questions on appeal. On this basis, the Court of Appeal concluded that the interlocutory and final orders were inextricably linked.^[5] The Court also held that, where interlocutory and final orders are so interrelated, the doctrines of res judicata and abuse of process do not bar the appeal.

Why this matters

Rulings excluding (or including) evidence are common in civil litigation. When such a ruling is made during a trial, the disappointed party waits until after final judgment before appealing the evidentiary ruling. The Court of Appeal then considers the evidence issue at the same time it considers the trial judge’s decision on the merits of the case. As a practical matter, this makes sense; mid-trial interlocutory appeals would be highly disruptive to the trial process.

In Heegsma, the Court of Appeal implicitly endorsed this approach in a proceeding in which there was no trial. The applicants’ Charter challenge proceeded by way of an application to the Superior Court of Justice. Unlike an action, which culminates in a trial at which witnesses give “live” evidence, an application is usually decided on a written record. Witnesses provide evidence by affidavit and then are cross-examined on their affidavits out of court. The affidavits and cross-examination transcripts are then filed in court, together with the parties’ written arguments. The court then hears oral argument at a hearing.

Applications are not reserved for Charter cases. Many commercial disputes are commonly litigated this way. The Court of Appeal’s approach in Heegsma may therefore have broad implications for civil litigation and appeals.

It is not obvious — or at least was not, before Heegsma — that an interlocutory order excluding evidence before the hearing of an application should generally be appealed with the final order, similar to a ruling on evidence made during a trial. Heegsma suggests, however, that s. 6(2) of the Courts of Justice Act applies in these circumstances. After all, it is difficult to imagine how the question of whether arguably relevant evidence ought to have been admitted on an application would not be deeply “interrelated” with the issue of whether the application was correctly decided.

The Heegsma applicants could have sought leave to appeal the orders excluding evidence before the merits hearing. Instead, they waited and then appealed them afterwards, together with the final order. The Court of Appeal endorsed that approach. This puts the City in the unenviable position of having to respond to the appeal in two ways: on the basis of the evidence that actually was before the application judge and, in the alternative, on the basis of the evidence that the applicants say should have been admitted. This is because, if the Court of Appeal determines that the excluded evidence should have been admitted, it could send the matter back to the Superior Court but it could also step into the Superior Court’s shoes and decide the case itself.

It remains to be seen whether the Court of Appeal will take a more restrictive approach to combining interlocutory and final orders in future appeals. In the meantime, Heegsma indicates that a party to an application may take the same approach to interlocutory rulings on evidence as would be expected during a trial: allow the 15-day leave deadline to expire and instead await the matter’s final determination before appealing.

^[1] Heegsma v. Hamilton (City), 2024 ONSC 7154 (CanLII).

^[2] Heegsma v. Hamilton (City), 2025 ONCA 554 (CanLII), at para 30.

^[3] Ibid at para 23.

^[4] Ibid at para 36.

^[5] Ibid at para 43.