In his August 15, 2014 decision in George v. Anishinabek (Police
Service), Justice Doherty, on behalf of a unanimous
Ontario Court of Appeal, allowed an appellant to raise a
dispositive jurisdictional argument on appeal, even though the
appellant did not make the argument in the Divisional Court, where
it had been respondent in an application for judicial review. The
respondent on appeal (a Mr. George, applicant in the application
for judicial review) understandably objected to this, but Doherty
J.A. concisely responded to his concerns, giving guidance for when
the Court of Appeal will allow a new issue to be raised:
an appellate court is understandably reluctant to consider an issue
not raised in the court below, I would address the merits of the
appellants' jurisdictional argument. I would do so for
three reasons. First, it is potentially determinative of the
appeal. Second, apart from the collective bargaining
agreement itself, the terms of which are not in dispute, the
jurisdictional argument can be fully considered without adding
anything to the record that was before the Divisional Court.
This court is not being asked to address a new issue on a record
that does not speak to that issue. Nor is this court being
asked to augment the existing record with untested contentious
evidence relating to the new issue. Third, addressing the
merits of the jurisdictional issue for the first time in this court
does not prejudice Mr. George in any manner that cannot be properly
addressed by an appropriate cost order.
 As to the
merits of the jurisdictional argument, I would hold that the
Divisional Court had no jurisdiction to consider the issue raised
on Mr. George's judicial review application ... an arbitrator
appointed under the collective agreement had exclusive jurisdiction
to determine whether Mr. George was entitled, as a matter of
procedural fairness, to notice of the application for the extension
of time to bring discipline proceedings against him. I would
allow the appeal on that ground alone and would not address the
Doherty J.A. decided that the Divisional Court had no
jurisdiction over the matter because the essential character of Mr.
George's complaint was disputing how he was disciplined –
in light of the particular collective agreement in issue, and based
on established principles of labour law and administrative law, he
needed to pursue his remedies over all such matters through the
grievance process in a collective agreement.
With respect to the costs order, he held:
 Counsel for the appellants
conceded that if the appellants were successful on the
jurisdictional issue, the costs order made in the Divisional Court
should stand in light of the appellants' failure to raise the
jurisdictional argument in that court. I agree with that
concession. Counsel did submit that the appellants should
have their costs in this court. Again, I agree with that
submission. However, in my view, in all the circumstances,
those costs should be modest. I would award costs in the
amount of $5,000, inclusive of disbursements and relevant
taxes. Those costs can be set off against the costs awarded
to Mr. George in the Divisional Court, assuming, of course, that
the appellants have not paid those costs to Mr. George.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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