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Administrative - Hearing - Bifurcated

. Sudbury and District Health Unit v Ontario Nurses’ Association

In Sudbury and District Health Unit v Ontario Nurses’ Association (Div Court, 2023) the Divisional Court considered whether, and if so how, the bifurcation of a hearing impacted JR prematurity doctrine:

[23] The Applicant suggests that because the hearing was bifurcated at a natural break between separate phases of the hearing, it does not raise the same concerns with respect to fragmentation and delay. The case law does not support this argument. While the Federal Court of Appeal has recognized that decisions bifurcated between the merit and remedy phases of a hearing may not raise the same concerns about fragmentation, it explicitly contrasts that with the situation where the hearing is bifurcated on the merits. (Wilson v. Construction and Allied Workers (Labourers’ International Union of North America, Local 607), 2008 CanLII 6522 (ON LRB) at para. 36, reviewed on other grounds 2016 SCC 29.)

[24] Even where the only remaining issue is remedy, the court is often loathe to intervene, finding that the question of remedy should be determined before recourse is made to the Divisional Court. (Air Canada v. Canadian Union of Public Employees, Air Canada Component, 2020 ONSC 847 (CanLII); Jones Lang Lasalle Real Estate Services Inc. v Human Rights Tribunal of Ontario and Brian Graff, 2015 ONSC 4005 (CanLII)).

[25] In this case, the decision in question is clearly “in the middle of the hearing on the merits”. There are multiple issues remaining to be determined and there is a real risk of fragmentation and piecemeal litigation if the court proceeds with the application at this time.


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