M.J. Jones Inc. et al. v. Kingsway General Insurance Company et al.

[Indexed as: M.J. Jones Inc. v. Kingsway General Insurance Co.]

68 O.R. (3d) 131

[2003] O.J. No. 4388

Docket Nos. C40053 and M30181

Court of Appeal for Ontario

McMurtry C.J.O., Catzman and Sharpe JJ.A.

November 21, 2003

*Application for leave to appeal to the Supreme Court of Canada was granted with costs to the applicants in any event of the cause November 18, 2004 (Bastarache, LeBel and Deschamps JJ.)

Appeal -- Orders -- Final or interlocutory -- Motion to dismiss or stay an action on ground that court lacks jurisdiction over out of province defendants or on ground of forum non conveniens -- Final order for purposes of appeal -- Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(b), 19(1) (b).

An order dismissing a motion to dismiss or stay an action on the ground that the Superior Court lacks jurisdiction over out of province defendants or on the ground of forum non conveniens is a final order for the purposes of appeal.

MOTION to quash an appeal.

The judgment of the court was delivered by

Cases referred to Abbott v. Collins (2002), 2002 41457 (ON CA), 62 O.R. (3d) 99, 24 C.C.E.L. (3d) 219, 26 C.P.C. (5th) 273 (C.A.); Ball v. Donais (1993), 1993 8613 (ON CA), 13 O.R. (3d) 322, 45 M.V.R. (2d) 319 (C.A.); Lemmex v. Bernard (2002), 2002 44962 (ON CA), 60 O.R. (3d) 54, 213 D.L.R. (4th) 627, 13 C.C.L.T. (3d) 203, 26 C.P.C. (5th) 259 (C.A.), revg (2001), 2001 38747 (ON SCDC), 204 D.L.R. (4th) 192, 6 C.C.L.T. (3d) 286, 12 C.P.C. (5th) 169 (Ont. S.C.J.); 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, [1999] O.J. No. 3623 (QL) (C.A.); McNichol Estate v. Woldnik (2001), 2001 5679 (ON CA), 13 C.P.C. (5th) 61, 150 O.A.C. 68, [2001] O.J. No. 3731 (QL) (C.A.), affg (2000), 2000 26983 (ON SC), 52 O.R. (3d) 49, [2000] O.J. No. 5027 (QL), [2000] O.T.C. 921, 5 C.P.C. (5th) 333 (S.C.J.); Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC), [1990] 3 S.C.R. 1077, 52 B.C.L.R. (2d) 160, 76 D.L.R. (4th) 256, 122 N.R. 81, [1991] 2 W.W.R. 217, 46 C.P.C. (2d) 1, 15 R.P.R. (2d) 1; Muscutt v. Courcelles (2002), 2002 44957 (ON CA), 60 O.R. (3d) 20, 213 D.L.R. (4th) 577, 13 C.C.L.T. (3d) 161, 26 C.P.C. (5th) 206 (C.A.), supp. reasons (2002), 2002 9432 (ON CA), 213 D.L.R. (4th) 661, 13 C.C.L.T. (3d) 238, 26 C.P.C. (5th) 203 (Ont. C.A.), affg (2001), 5 C.P.C. (5th) 353 (Ont. S.C.J.); Nantais v. Telectronics Proprietary (Canada) Ltd., [1996] O.J. No. 1220 (QL) (C.A.); [page132] Noble v. Noble, [2003] O.J. No. 1151 (QL) (C.A.), affg (2002), 31 C.P.C. (5th) 175 (S.C.J.); Poirier v. Williston (1981), 1981 3027 (ON CA), 31 O.R. (2d) 320, 118 D.L.R. (3d) 576 (C.A.), affg (1980), 1980 2733 (ON CA), 29 O.R. (2d) 303, 113 D.L.R. (3d) 252 (Div. Ct.); Singh v. Howden Petroleum Ltd. (1979), 1979 1716 (ON CA), 24 O.R. (2d) 769, 100 D.L.R. (3d) 121, 11 C.P.C. 97 (C.A.), affg (1979), 1979 1679 (ON SC), 22 O.R. (2d) 588, 97 D.L.R. (3d) 160, 10 C.P.C. 48 (Div. Ct.); 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. Â210-027 Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(b), 19(1) (b)

Peter R. Greene, for appellants Garan, Lucow, Miller, P.C. and Thomas W. Emery. John McNeil, Q.C., for respondents M.J. Jones Inc. and Melvin Jones. Victor T. Bulger, for respondent Kingsway General Insurance Company. John G. Webster, for respondent D.E. Fish & Associates Ltd.

[1] SHARPE J.A.: -- This motion to quash the defendant's appeal to this court raises the issue whether an order dismissing a motion to dismiss or stay an action on the ground that the Superior Court lacks jurisdiction over out of province defendants or on the ground of forum non conveniens, is final or interlocutory for the purposes of appeal.

[2] In the Superior Court, the defendants (appellants in this appeal), Garan, [Lucow], Miller, P.C. and Thomas W. Emery, unsuccessfully moved before Speigel J. for an order

(i) setting aside service outside Ontario of the statement of claim and the crossclaims of the defendants Kingsway General Insurance Company (Kingsway) and Donald Fish and D.E. Fish & Associates Ltd.;

(ii) dismissing or staying the claim and crossclaims on the ground that the Superior Court of Justice lacks jurisdiction against parties not resident in Ontario; or

(ii) alternatively, staying the claims and crossclaims on the ground of forum non conveniens.

[3] Those defendants appeal the motions judge's order to this court. In response, Kingsway, supported by the plaintiffs, moves to quash the appeal on the ground that the order appealed from [page133] is interlocutory rather than final and that any appeal properly lies to the Divisional Court, with leave, pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(b) and 19(1)(b).

[4] For the reasons that follow, I conclude that the order appealed from is final in nature and that the motion to quash must be dismissed.

[5] The moving parties rely on Nantais v. Telectronics Proprietary (Canada) Ltd., [1996] O.J. No. 1220 (QL) (C.A.) where this court quashed an appeal from an order dismissing a motion to set aside service ex juris and to stay or dismiss the action. However, the question before me is not explicitly dealt with in Nantais because that issue was not the focus of the motion to quash. At para. 2 of its endorsement, the court stated: "The question of forum was not at issue on the appeal, and not aggressively pressed on the motion. The only issue was whether the pleadings identify a cause of action against the appellant." Since the court in Nantais did not decide the appeal on the jurisdiction issue, authority of Nantais is clearly attenuated on that point.

[6] In earlier years, it would seem to have been common practice to consider such orders to be interlocutory in nature since appeals were routinely taken, in the first instance, to the Divisional Court: see Singh v. Howden Petroleum Ltd. (1979), 1979 1716 (ON CA), 24 O.R. (2d) 769, 100 D.L.R. (3d) 121 (C.A.); Poirier v. Williston (1981), 1981 3027 (ON CA), 31 O.R. (2d) 320, 118 D.L.R. (3d) 576 (C.A.). However, in recent years, following the regime for jurisdiction over out of province defendants established in Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC), [1990] 3 S.C.R. 1077, 76 D.L.R. (4th) 256, appeals to this court from orders dismissing jurisdictional challenges have proceeded without any question being raised that such an order is final: see McNichol Estate v. Woldnik (2001), 2001 5679 (ON CA), 13 C.P.C. (5th) 61, 150 O.A.C. 68 (C.A.); Muscutt v. Courcelles (2002), 2002 44957 (ON CA), 60 O.R. (3d) 20, 213 D.L.R. (4th) 577 (C.A.); compare Lemmex v. Bernard (2002), 2002 44962 (ON CA), 60 O.R. (3d) 54, 213 D.L.R. (4th) 627 (C.A.) where the matter came to this court after an appeal to the Divisional Court. While the reasons for judgment in Noble v. Noble, [2003] O.J. No. 1151 (QL) (C.A.) do not explicitly state that such an order is final, the research of the appellant's counsel reveals that the issue was raised in argument. By entertaining the appeal on the merits, the court in Noble appears to have implicitly rejected the contention that the order dismissing the motion to set aside service ex juris and the order dismissing the motion to stay the application because Ontario was not the proper forum was interlocutory.

[7] In the absence of explicit authority I turn to analogous cases. Ball v. Donais (1993), 1993 8613 (ON CA), 13 O.R. (3d) 322, 45 M.V.R. (2d) 319 (C.A.), at p. 324 O.R. establishes that even where an order does [page134] "not finally dispose of the rights of the parties to the litigation", it will be final for the purposes of appeal if it conclusively disposes of an issue raised by way of defence and "thereby deprive[s] the defendant of a substantive right which could be determinative of the entire action". The issue on this appeal is whether or not the order under appeal here has that effect in law.

[8] Abbott v. Collins (2002), 2002 41457 (ON CA), 62 O.R. (3d) 99, 26 C.P.C. (5th) 273 (C.A.) involved an appeal from the dismissal of a motion by the appellant for an order staying the action on the ground that the court had no jurisdiction over the subject matter. The appellants had argued that, under the principles laid down in Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, 125 D.L.R. (4th) 583, the court lacked jurisdiction since the dispute was governed by a collective agreement and fell within the jurisdiction of the grievance procedure. Morden J.A. held in Abbott that the order was final and that an appeal could be taken to this court pursuant to the Courts of Justice Act, s. 6(1)(b). In coming to his conclusion, Morden J.A. applied Ball v. Donais, supra, holding, at p. 101 O.R., that the order was final because it "precludes the defendants hereafter from raising the question of the court's jurisdiction over the subject matter of the application".

[9] The reasoning in Ball and Abbott is echoed in Manos Foods International Inc. v. Coca-Cola Ltd., 1999 3022 (ON CA), [1999] O.J. No. 3623 (QL), 180 D.L.R. (4th) 309 (C.A.). At para. 4, the court in Manos held that,

The effect of the order under appeal [dismissing a motion to stay or dismiss paragraph 1(b) of the Statement of Claim] is to preclude the appellants from raising again the issue that the Ontario Court lacks jurisdiction to make a mandatory order of the nature sought in paragraph 1(b). The order under appeal finally disposes of that jurisdictional issue and deprives the appellants of a substantive right that could be determinative in opposing the remedy sought in paragraph 1(b).

[10] The moving parties urge us to distinguish Abbott and Manos on the basis that those cases dealt with jurisdiction over the subject of the action, while the order at issue here deals with jurisdiction over the person of the defendants. In my view, this is not a meaningful distinction. Following Morguard Investments Ltd. v. De Savoye, supra, a challenge to the jurisdiction of the Superior Court by an out-of-province defendant rests on a substantive legal right rooted in constitutional principles: see Muscutt v. Courcelles, supra. Morguard held that jurisdiction may only be asserted against a defendant where there is a "real and substantial connection" variously described, at paras. 45-52, as a connection "between the subject-matter of the action and the territory where the action is brought", between the jurisdiction and the wrongdoing", "between the damages suffered and the jurisdiction", [page135] "between the defendant and the forum province", "with the transaction or the parties" and "with the action". In my view the right to resist jurisdiction in the absence of a "real and substantial connection" is the equivalent of the assertion of a substantive defence to the action. From this, it follows, therefore, that an order dismissing such a challenge is final in nature for the purposes of appeal.

[11] Accordingly, I would dismiss the motion to quash this appeal. The appellants may make brief written submissions as to costs within ten days of the release of these reasons. Responding submissions, if any, to be made within ten days thereafter.

Motion dismissed.