Court of Appeal for Ontario

CITATION: Hopkins v. Kay, 2014 ONCA 514

DATE: 20140702

DOCKET: M43501

Feldman, Watt and van Rensburg JJ.A.

BETWEEN

Jessica Hopkins, Heike Hesse, Erkenraadje Wensvoort on behalf of themselves and all others similarly situated

Moving Parties/Respondents (Plaintiffs)

and

Andrea Kay, Dana Gildon Cormier, Mandy Edgerton Reid, Dawn Deciocci, Jane Doe “A”. Jane Doe “B”, Jane Doe “C”, Peterborough Regional Health Centre and Sir Sanford Fleming College

Respondent/Appellant (Defendants)

Brought under the Class Proceedings Act, 1992

Jean-Marc Leclerc and Michael A. Crystal, for the moving parties

Patrick J. Hawkins and Daniel Girlando, for Peterborough Regional Health Centre

Heard: June 18, 2014

On motion to quash the appeal.

Reasons for Decision

van Rensburg J.A.:

[1] This is a motion to quash the appeal of an order of M.L. Edwards J. dated January 31, 2014 on the basis that the order is interlocutory, and that the proper route of appeal is to seek leave under s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, to appeal to the Divisional Court.

[2] The moving parties are the representative plaintiffs in a proposed class proceeding. Their statement of claim claims damages alleging that the Peterborough Regional Health Centre (the “Hospital”), the appellant in the appeal to this court and respondent to the motion to quash, breached the privacy interests of approximately 280 patients when their records were accessed. The claim in tort is based on this court’s decision in Jones v. Tsige, 2012 ONCA 32.

[3] The Hospital brought a motion under rule 21.01 for an order striking out the statement of claim and dismissing or staying the action against the Hospital as disclosing no reasonable cause of action (on the ground that the plaintiffs’ claim for personal health information privacy breach discloses no reasonable cause of action at common law) and for an order dismissing or staying the action on the ground that the Superior Court has no jurisdiction to hear the action as a result of the provisions of the Personal Health Information Protection Act, 2004, S.O. 2004, c.3, Sch. “A” (“PHIPA”).

[4] Edwards J. dismissed the motion. His order dated January 31, 2014 provides that: (1) the Hospital’s motion to strike the claim on the ground that the plaintiffs’ claim for personal health information privacy breach discloses no reasonable cause of action at common law is dismissed; (2) the Hospital’s motion to dismiss or stay the action on the ground that the court has no jurisdiction as a result of the provisions of PHIPA is dismissed; and (3) the Hospital shall pay the plaintiffs’ costs fixed at $24,000.

[5] The Hospital filed a notice of appeal to this court seeking to set aside the order of Edwards J., and substitute an order dismissing or staying the action on the grounds that the Superior Court has no jurisdiction over the subject matter unless and until Ontario’s Information and Privacy Commissioner makes an order affecting the plaintiffs under PHIPA, as well as striking the plaintiffs’ statement of claim and dismissing the action as disclosing no reasonable cause of action.

[6] The question on this motion is whether this court has jurisdiction to hear the appeal, which depends on whether the order under appeal is final. The moving parties submit that, on a review of the reasons of the motion judge, it is apparent that no issue was determined on a final basis. Rather, the action simply survived the “plain and obvious” test, and the motion did not dispose of any substantive rights of the parties.

[7] There are two parts to the order of the motion judge. The first, under rule 21.01(1)(b), did not dispose of any substantive rights on a final basis. Typically an order dismissing a motion under that subrule is an interlocutory order: S.(R.) v. H.(R.) (2000), 52 O.R. (3d) 152 (C.A.), at pp. 157-58.

[8] In this case however, there was also a determination by the motion judge under rule 21.01(3)(a), refusing to stay or dismiss the action on the basis of lack of jurisdiction over the subject matter of the action.

[9] In my view, the refusal to dismiss or stay the action based on lack of jurisdiction was a final order. See Manos Foods International Inc. v. Coca-Cola Ltd., [1999] O.J. No. 3623 (C.A.), and Abbott et al. v. Collins et al. (2002), 62 O.R. (3d) 99 (C.A.). 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.

[10] The moving parties refer to a passage in Abbott where Morden J.A. observed that not all orders made on motions under rule 21.01(3)(a) are final. They submit that when the reasons are read in the present case, the motion judge’s use of the “plain and obvious” wording suggests that he intended to leave open the issue of jurisdiction to be determined later in the proceedings. As such, the entire order, including the part of the order addressing jurisdiction, is interlocutory.

[11] I disagree with the moving parties’ interpretation of Abbott. In Abbott, Morden J.A. referred to this court’s decision in Suresh v. Regina et al. (1998), 42 O.R. (3d) 793 (C.A.), where an appeal was taken from an order dismissing a motion under rule 21.01(3)(a) where the judge declined to make a decision about jurisdiction without first assessing the merits of specific claims. The decision was not a final order because the motion was dismissed without a determination of the jurisdiction issue, and the appeal was quashed. See also, Mandeville v. Manufacturers Life Insurance Co., [2003] O.J. No. 2398 (C.A.), where Charron J.A. found that an order refusing to dismiss or stay an action based on lack of jurisdiction and abuse of process was interlocutory, where the motion judge concluded that the matters raised required a trial so that the court could decide, after a full review of the facts, whether the claim ought to be precluded on jurisdictional grounds.

[12] Where, as here, and as in Abbott, the court refused to strike the claim for lack of jurisdiction, and permitted the action to proceed, the order is clearly a final order. Unlike Mandeville, 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.

[14] For these reasons, I would dismiss the motion to quash, with costs of $5,000 inclusive of disbursements and HST payable by the respondents in the appeal to the appellant.

Released: July 2, 2014

(K.F.) “K. van Rensburg J.A.”

“I agree K. Feldman J.A.”

“I agree David Watt J.A.”