Abbott et al. v. Collins et al.

[Indexed as: Abbott v. Collins]

62 O.R. (3d) 99

[2002] O.J. No. 4058

Docket Nos. C38166 and M28910

Court of Appeal for Ontario,

Morden, Labrosse and MacPherson JJ.A.

October 18, 2002 (Orally)*

• Reasons released October 25, 2002.

Appeal -- Jurisdiction -- Final or interlocutory order -- Defendants moving unsuccessfully under rule 21.01(3)(a) for order dismissing plaintiffs' action on basis that court lacked jurisdiction over subject matter of action as dispute covered by collective agreement -- Order dismissing defendants' motion final -- Plaintiffs' motion to quash defendants' appeal dismissed -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(3)(a). [page100]

The plaintiffs brought an action relating to their employment as police officers. The defendants brought a motion under rule 21.01(3)(a) of the Rules of Civil Procedure for an order dismissing the action on the basis that the court lacked jurisdiction over the subject matter as the dispute was covered by a collective agreement that contained a grievance procedure. The motion was dismissed. The defendants appealed. The plaintiffs brought a motion to quash the appeal on the grounds that the order appealed from was interlocutory.

Held, the motion should be dismissed.

The order in question was a final one as it precluded the defendants from raising the question of the court's jurisdiction over the subject matter of the application. The purpose of rule 21.01(3)(a) is to confer jurisdiction to make orders that are final.

MOTION to quash an appeal from an order dismissing a motion to dismiss an action for a lack of jurisdiction.

Ball v. Donais (1993), 1993 8613 (ON CA), 13 O.R. (3d) 322, 45 M.V.R. (2d) 319 (C.A.), apld S. (R.) v. H. (R.) (2000), 2000 17038 (ON CA), 52 O.R. (3d) 152, 195 D.L.R. (4th) 345, 19 R.F.L. (5th) 383, 7 C.P.C. (5th) 32 (C.A.), consd Other cases referred to Manos Foods International Inc. v. Coca-Cola Ltd. (1999), 1999 3022 (ON CA), 180 D.L.R. (4th) 309, 40 C.P.C. (4th) 113, 2 C.P.R. (4th) 283 (Ont. C.A.); Ontario (Attorney General) v. Bowie (1993), 1993 8638 (ON SC), 16 O.R. (3d) 476, 110 D.L.R. (4th) 444, 1 C.C.E.L. (2d) 190 (Div. Ct.); Suresh v. Canada (1998), 1998 2843 (ON CA), 42 O.R. (3d) 793 (C.A.) (sub nom. Suresh v. R.); Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, 24 O.R. (3d) 358n, 125 D.L.R. (4th) 583, 183 N.R. 241, 30 C.R.R. (2d) 1, 12 C.C.E.L. (2d) 1, 24 C.C.L.T. (2d) 217, 95 C.L.L.C. 210-027 Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01

Craig J. Allen, for plaintiffs/respondents. Harry W. McMurtry, for the defendants/appellants.

The judgment of the court was delivered by

[1] MORDEN J.A. (orally): -- The plaintiffs move to quash the defendants' appeal from an order of Patterson J. that dismissed the defendants' motion under rule 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for an order that the action be dismissed on the ground that the court had no jurisdiction over the subject matter. The plaintiffs submit that the order is interlocutory and, accordingly, not appealable to this court as a final order under s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. [page101]

[2] The general subject matter of the action is a dispute relating to the plaintiffs' employment as police officers. The defendants contend that the dispute is covered by a collective agreement that contains a grievance procedure and, hence, that the court lacks jurisdiction on the basis of the doctrine in Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, 125 D.L.R. (4th) 583.

[3] Rule 21.01(3)(a), which authorizes the defendants' motion, provides that "[a] defendant may move . . . to have an action stayed or dismissed on the ground that . . . the court has no jurisdiction over the subject matter of the action".

[4] Patterson J.'s reasons for dismissing the motion are brief:

[The] essential element of Claim is disciplinary in nature & clearly outside the Collective Agreement.

[5] In our view, this order is a final one in accordance with the applicable authorities. The principal authority is Ball v. Donais (1993), 1993 8613 (ON CA), 13 O.R. (3d) 322, 45 M.V.R. (2d) 319 (C.A.) which was concerned with an appeal from an order under rule 21.01(1)(a), made on the defendant's motion, to determine the application of a limitation period. The motions judge held that the action was not statute-barred. On the defendant's appeal to this court, the plaintiff submitted that the court lacked jurisdiction because the order was interlocutory. The court held that the order was a final one. At p. 324 O.R. it said:

The effect of the order of [the motion's judge] was to preclude the defendant's entitlement to raise thereafter, as a defence to this action, the plaintiff's failure to sue within the limitation period prescribed by the Highway Traffic Act. While that order did not finally dispose of the rights of the parties to the litigation, it did, subject to appeal therefrom, finally dispose of the issue raised by that defence, and thereby deprived the defendant of a substantive right which could be determinative of the entire action.

[6] For the same reason, the order in this proceeding is final. It precludes the defendants hereafter from raising the question of the court's jurisdiction over the subject matter of the application. This is precisely the holding in Ontario (Attorney General) v. Bowie (1993), 1993 8638 (ON SC), 16 O.R. (3d) 476, 110 D.L.R. (4th) 444 (Div. Ct.) at p. 478 O.R. (query the Divisional Court's jurisdiction) and Manos Foods International Inc. v. Coca-Cola Ltd. (1999), 1999 3022 (ON CA), 40 C.P.C. (4th) 113, 180 D.L.R. (4th) 309 (Ont. C.A.) at p. 115 O.R., both of which held, following Ball v. Donais, that orders dismissing motions challenging the court's jurisdiction under rule 21.01(3)(a) were final orders.

[7] These decisions may be distinguished from this court's decision in S. (R.) v. H. (R.) (2000), 2000 17038 (ON CA), 52 O.R. (3d) 152, 195 D.L.R. (4th) 345, which held that an order dismissing a motion under [page102] rule 21.01(1)(b) to strike out a statement of claim as disclosing no reasonable cause of action is interlocutory. The reason for this conclusion was that rule 21.01(1)(b) did not confer the power to make other than interlocutory orders: S. (R.) v. H. (R.), at pp. 157-58 O.R. On the other hand, the purpose of rule 21.01(1)(a) and, we think, rule 21.01(3)(a), is to confer jurisdiction to make orders that are final. As will be indicated, it does not necessarily follow that all orders made on motions under rule 21.01(3)(a) are final.

[8] The plaintiffs submit that Patterson J.'s order is interlocutory because of the sparse nature of the material before him. It comprised only the statement of claim and the collective agreement. No affidavit material was filed. Accordingly, the plaintiffs submit, the decision amounts to no more than an explanation, at this point, for finding that the action should not be dismissed. It is sufficient to deal with this point to note that the reasons, as brief as they are, do not indicate that the judge dismissed the motion because the state of the material did not enable him to decide the merits of the motion. The reasons clearly and unequivocally decide, on the merits, the issue raised on the motion. They state that the "essential element of Claim is . . . clearly outside the collective agreement" and, hence, implicitly that the collective agreement has not blocked the court's jurisdiction. Contrast Suresh v. Canada (1998), 1998 2843 (ON CA), 42 O.R. (3d) 793 (C.A.) at pp. 796-97, where the motion judge's reasons for dismissing a motion for a stay of the proceeding were not based on the merits of the motion. They did not finally determine the moving party's right to a stay. For this reason, the order was held to be interlocutory.

[9] We are not concerned at this stage of the validity of the reasons, but only with the characterization of the order made.

[10] For these reasons, we dismiss the motion to quash with costs. (Submissions on quantum.) The costs are fixed in the amount of $2,500.

Motion dismissed.