CITATION: Hirtle v. College of Nurses of Ontario, 2021 ONSC 5689

DIVISIONAL COURT FILE NO.: 596/19

DATE: 20210823

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: PAUL Hirtle, Appellant (Responding Party)

AND:

College of nurses of ontario, Respondent (Moving Party)

BEFORE: Swinton J.

COUNSEL: Rebecca M. Young and Kelsey L. Ivory, for the Appellant (Responding Party)

Megan Shortreed and Glynnis Hawe, for the Respondent (Moving Party)

HEARD at Toronto (by videoconference): August 23, 2021

ENDORSEMENT

[1] The moving party, the College of Nurses of Ontario, brings a motion to introduce further evidence to address the appellant’s allegation, on appeal, that he was denied procedural fairness by the Discipline Committee of the College. The appellant brings a cross-motion to adduce responding evidence if the College’s motion is granted.

[2] Pursuant to s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), the court to which an appeal is made may admit further evidence on appeal to enable the court to determine the appeal. Rule 61.16(2) specifies that a motion to admit further evidence brought pursuant to s. 134(4)(b) of the CJA “shall be made to the panel hearing the appeal.”

[3] In addition, s. 21(3) of the CJA specifies that a single judge of the Divisional Court “shall” hear and determine motions “unless otherwise provided by the rules of court.”

[4] This appeal is scheduled to be heard by a panel on February 23, 2022. Given the wording of ss. 21(3) and s. 134(4)(b) of the CJA and rule 61.16(2), I have no jurisdiction to determine the motion and the cross-motion to admit further evidence on the appeal. Accordingly, I order that the motion and cross-motion are adjourned to by heard and determined by the panel hearing the appeal.

[5] As the motion and cross-motion are properly brought to the panel hearing the appeal, paragraph D.4.7 of the Notice to Profession – Divisional Court dated February 18, 2021 does not bar the parties from uploading their motion materials to Caselines for the appeal hearing on February 23, 2022. However, out of an abundance of caution, I direct that the parties are permitted to upload the motion and cross-motion materials that were filed before me to Caselines for the panel’s consideration at the time of the appeal.

[6] I also direct that, for purposes of the appeal, the parties are permitted to file and upload to Caselines a “Supplementary Factum (addressing the issue of procedural fairness in light of the motions respecting further evidence)”, not to exceed 10 pages in length.

[7] The parties are agreed that costs of today shall be reserved to the panel hearing the appeal.

Swinton J.

Date: August 23, 2021