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:
[8] Although 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.
[9] 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 other issues.
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:
[45] 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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