Executive Summary: Key Legal and Evidentiary Issues

• Appeal concerned a professional discipline decision of the College of Nurses of Ontario based on an agreed statement of facts, plea and joint penalty submission.
• Central evidentiary issue was whether the appellant could introduce fresh affidavit evidence on appeal alleging that a panel member was asleep during part of the hearing.
• Tribunal fairness was challenged indirectly through allegations that counsel and the panel failed to address an allegedly sleeping panel member, despite no objection being made during the hearing.
• The appellant’s post-hearing email excerpts with counsel, relied on to show that counsel also believed a panel member was asleep, were found unclear, partly hearsay and internally contradictory.
• Applying the well-established test for fresh evidence on appeal, the Court held that the proposed affidavit evidence was not sufficiently cogent and some portions were inadmissible.
• With the fresh evidence motion dismissed and no other grounds advanced, the Court dismissed the appeal and made no order as to costs, leaving the College’s discipline decision in place.

Facts of the disciplinary proceedings
The case arises from a discipline proceeding before the College of Nurses of Ontario (CNO), the regulator responsible for overseeing the nursing profession in Ontario. The appellant, Victor Jackson, was the subject of a discipline decision issued by the CNO on June 20, 2025. That decision was grounded in an agreed statement of fact, a plea, and a joint submission on penalty that were all accepted by the tribunal. During the discipline hearing, Mr. Jackson was represented by counsel, and the panel followed a process in which submissions were invited at each stage, including at the end of the hearing when the panel asked counsel if they had any questions or needed anything clarified. The internal substance of the professional misconduct, the detailed facts of the agreed statement of fact, and the precise terms of the penalty imposed by the CNO are not set out in the Divisional Court endorsement. As a result, the specific underlying conduct and any particular sanctions (such as suspension length, conditions, or fines) imposed at the CNO level cannot be determined from this court decision alone. What is clear, however, is that the decision stemmed from consensual resolution instruments typically used in professional discipline: the agreed facts, plea, and joint penalty proposal.

Appeal to the Divisional Court and allegation of an unfair hearing
Mr. Jackson appealed the CNO’s June 20, 2025 discipline decision to the Ontario Divisional Court. On appeal, he represented himself. His challenge did not focus on the substantive merits of the agreed facts or the joint penalty, but instead turned on an allegation that the hearing process before the CNO was procedurally unfair. The appellant asserted that one of the panel members was asleep during some part of the discipline hearing. This allegation was advanced through a motion to admit fresh evidence on appeal, in which Mr. Jackson filed his own affidavit stating that he had observed a panel member sleeping. He further claimed that he raised this concern with his counsel during a break, but that his counsel “did not raise any concerns” with the tribunal. No objection was recorded on the hearing transcript, and no complaint was placed before the panel at the time of the alleged incident. In addition, Mr. Jackson said that he intended to raise the issue at the end of the hearing but did not have an opportunity to do so, a point he clarified in his oral submissions to the Divisional Court.

Competing affidavit evidence and the motion for fresh evidence
The motion before the Divisional Court centred on whether the appellant’s affidavit should be admitted as fresh evidence. The College of Nurses of Ontario vigorously opposed the motion. In the alternative, the College asked that if the Court was prepared to admit Mr. Jackson’s affidavit, it should also admit an affidavit from an attendee at the hearing, who deposed that no tribunal member was asleep at any time during the proceeding. The appellant’s affidavit contained attachments comprising partial email exchanges between him and his former counsel after the hearing. He relied on these excerpts to argue that his counsel also believed a panel member had been asleep and described the end of the hearing as “abrupt.” However, the court noted that these email excerpts were unclear, included hearsay, and did not come with any confirming affidavit from counsel. By contrast, the official transcript showed that the panel repeatedly invited submissions and specifically asked counsel at the end of the hearing if they had any questions or required any clarification, undercutting the narrative that there was no opportunity to raise concerns about a sleeping panel member.

Application of the fresh evidence test and evidentiary concerns
The Divisional Court applied the “well-established test” governing the admission of fresh evidence on appeal in administrative and disciplinary matters. Under that framework, proposed new evidence must usually be credible, relevant and sufficiently cogent that it could reasonably be expected to have affected the result. In this case, the court held that the appellant had not met his burden to justify admitting his affidavit as fresh evidence. The portions of his material suggesting that his counsel agreed a panel member had been asleep were described as contradictory and partly hearsay. The absence of an affidavit from counsel, the unclear and fragmentary character of the email excerpts, and the factual context provided by the transcript all weighed against the reliability and cogency of the proposed evidence. Considering the motion record as a whole alongside the existing appeal record, the court concluded that the fresh evidence was not sufficiently cogent, and some of it was simply inadmissible. As a result, the motion to admit the appellant’s affidavit was dismissed. Given this disposition, it was unnecessary for the court to rule on or rely upon the opposing affidavit tendered by the College asserting that no panel member had been asleep.

Policy terms or clauses at issue
This Divisional Court endorsement is focused on procedural fairness and evidentiary rules in a professional discipline appeal, rather than on interpreting any specific written policy or contractual clause. The underlying CNO decision arose from an agreed statement of fact, a plea and a joint penalty submission, but the case report does not reproduce any particular policy wording, professional standards text, or code provisions. Accordingly, there is no discussion in this judgment of defined policy terms or clauses—such as detailed College standards, legislation sections, or insurance policy wordings—that would typically be parsed and applied in a policy-interpretation dispute. The legal analysis instead centres on the appellate test for fresh evidence, the treatment of hearsay and contradictory affidavit material, and the significance of a party’s failure to object or raise procedural concerns contemporaneously during the original tribunal hearing.

Outcome of the appeal and monetary consequences
Having rejected the motion to admit fresh evidence, the Divisional Court found that there were no other grounds on which the appeal could succeed. The appeal from the CNO’s June 20, 2025 discipline decision was therefore dismissed, with the result that the original discipline decision remained in force. In practical terms, this means that the College of Nurses of Ontario, as the respondent, was the successful party in the appeal, and the appellant, Victor Jackson, did not obtain any variation or setting aside of the disciplinary order. On the question of costs, the court expressly recorded that, in light of the appellant’s submissions regarding the College’s claim for costs, there would be no order as to costs. The endorsement does not describe any costs, fines or damages awarded at the tribunal level, and no financial figures are set out for the underlying discipline penalty. As a result, the total monetary award or costs ordered in this Divisional Court decision is zero, and the precise total amount (if any) imposed at the College level cannot be determined from this decision alone.