In her July 2, 2014 decision in Hopkins v. Kay, van Rensburg J.A. of the Ontario Court of Appeal considered when an order declining to dismiss an action for lack of jurisdiction will be final or interlocutory. This is particularly important for appellate practice in Ontario, as it determines whether an appeal from such an order should be brought to the Court of Appeal or the Divisional Court.

The appeal in question emerged from a proposed class action, alleging that a hospital breached the class members’ privacy rights. The hospital brought a motion for an order striking out the statement of claim and dismissing or staying the action as disclosing no reasonable cause of action, and for an order dismissing or staying the action on the ground that the Superior Court had no jurisdiction over the subject matter. Edwards J. of the Superior Court dismissed the motion and the hospital appealed to the Court of Appeal. The representative plaintiffs then moved to quash the appeal on the ground that Edwards J.’s order was interlocutory and should have been brought in the Divisional Court.

The representative plaintiffs submitted that no issue was determined on a final basis in Edwards J.’s order and no substantive rights were disposed of on a final basis. Rather, the action simply survived the “plain and obvious” test. Consequently, the appeal was interlocutory.

Writing on behalf of a unanimous Court of Appeal, van Rensburg J.A. agreed that an order dismissing a motion to strike a claim for disclosing no reasonable cause of action is typically interlocutory. However, in this case, the core of the order was refusing to stay or dismiss the action due to lack of jurisdiction over the action’s subject matter. In these circumstances, van Rensburg J.A. was satisfied that the order was final and properly appealed to the Court of Appeal:

[9]       … Where, as here, the effect of the order is that the action is going to proceed in the Superior Court, the consequence is that the defendant is precluded from continuing to dispute the court’s jurisdiction over the subject matter of the action. The order therefore is final on the jurisdiction question.

She agreed that there would be cases where a motion to dismiss a claim for lack of jurisdiction would be dismissed, but the order would be interlocutory. This would be the case if the judge had decided he or she needed a trial, or at least an evidentiary basis, to determine whether the Court had jurisdiction over the subject matter – in other words, if the defendant could still dispute jurisdiction at a later date. This, however, was not such a case:

[12]     Where, as here … the court refused to strike the claim for lack of jurisdiction, and permitted the action to proceed, the order is clearly a final order. … no factual record was needed to determine the jurisdictional issue.

[13]     The question then arises as to the proper scope of the appeal. In the present case, a review of the reasons of the motion judge suggests that the issues of whether the pleading disclosed a cause of action and jurisdiction were bound up in the same question: whether the statutory scheme creates a complete code for the determination of the plaintiffs’ rights which precludes an action for the tort of breach of privacy where PHIPA applies. This issue is properly characterized as one of jurisdiction, and as such the entire appeal is properly before this court.