10.14.05
Constitutional tort, eh?
ONTARIO NURSES’ ASSOCIATION v. MOUNT SINAI HOSPITAL
Dated: May 4, 2005
Am I dreaming, or is Ontario Nurses’ Association v. Mount Sinai Hospital the thin edge of the wedge in expanding the application of the Canadian Charter of Rights and Freedoms beyond the constraint of state action?
The Court of Appeal struck down s. 58(5)(c) of the Employment Standards Act, which creates an exception to an employer’s severance pay obligations to employees whose contracts of employment have been frustrated because of illness or injury.
However, like much of this statute, this provision tracks common law doctrines, in this instance the doctrine of frustration of contract.
The next argument might well be that it makes no sense to deny common law wages in lieu of notice where a contract of employment is frustrated by an employee’s poor health.
All the Charter arguments apply, except that there is no state actor. Yet, if the principle is that the charter does not apply to private relationships, it strains sense to say that an employment relationship is private as regards notice but public as regards severance pay.
Or is this countered by the argument that not all chickens are ducks just because one mutant bears a resemblance?