CITATION: Ontario Nurses’ Assn. v. Grand River Hospital Corp., 2012 ONSC 1323
DIVISIONAL COURT FILE NO.: 94/11
DATE: 20120224
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, PEPALL AND MACKINNON JJ.
BETWEEN:
ONTARIO NURSES’ ASSOCIATION
Applicant
– and –
GRAND RIVER HOSPITAL CORPORATION
Respondent
Elizabeth J. McIntyre and Danielle Bisnar, for the Applicant
John-Paul Alexandrowicz, for the Respondent
HEARD at Toronto: February 24, 2012
ASTON J. (orally)
[1] At paragraphs 22 and 23 of the recent decision of the Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, the Court confirmed that courts have the discretion not to consider a new issue raised for the first time on judicial review and the general rule that the Court should not consider new grounds or new issues that were not raised with the tribunal below.
[2] At paragraphs 24 to 26, the Court explained the rationale for this approach and highlighted the fact that courts must be careful not to overlook the loss of the benefit of having the specialized tribunal’s views.
[3] We are not prepared to consider the new arguments and issues raised today for the first time because they were not raised in a timely fashion and because it would be prejudicial to the respondent to have to address the issue. Furthermore, the issue was not raised with the Arbitrator and our task is to review the record as it is, not as it might have been.
[4] Our options, as I outlined earlier this morning, are to proceed on the basis of the record as we have it or perhaps to refer the matter back to the Arbitrator if we could be persuaded we have jurisdiction to do so, and that it is an appropriate course to follow.
[5] Having now heard from counsel, it is our view that we do not have jurisdiction to refer the matter back to the arbitrator to consider the new issue, without the consent of the parties. The respondent employer does not consent and so we are left with proceeding today on the record as it is, with one possible other alternative. Before we do proceed, we will put this to the applicant, as to whether the applicant may wish to consider withdrawing the judicial review application without any determination on the merits, an option that we are putting out there for consideration simply because of our understanding that if there is no determination on the merits it may facilitate other options for the Nurses’ Association.
FOLLOWING DISCUSSION WITH COUNSEL
[6] We have endorsed the Appeal Record, “On consent, the application is withdrawn, without prejudice to the applicant’s position and without determination on the merits. The applicant is to pay the respondent costs fixed at $3,500.00 all inclusive.”
ASTON J.
PEPALL J.
MACKINNON J.
Date of Reasons for Judgment: February 24, 2012
Date of Release: March 6, 2012
CITATION: Ontario Nurses’ Assn. v. Grand River Hospital Corp., 2012 ONSC 1323
DIVISIONAL COURT FILE NO.: 94/11
DATE: 20120224
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, PEPALL AND MACKINNON JJ.
BETWEEN:
ONTARIO NURSES’ ASSOCIATION
Applicant
– and –
GRAND RIVER HOSPITAL CORPORATION
Respondent
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: February 24, 2012
Date of Release: March 6, 2012