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?

Bozzo v. Giampaolo, released May 25, 2005.

The Ontario Rules take a weird approach to prejudgment interest. They basically say that the rate is the one prevailing when the claim is issued.

What could possibly be the reason for that? Especially when, as the Court of Appeal observed in this case, “the purpose of prejudgment interest is to compensate for loss of use of money.�

Rates vary over time. Litigation takes time.

Judges typically ignore the rule and average the rates. The OCA upheld that approach again in this case.

Let me suggest another approach.

Many jurisdictions in the United States require very high pji rates, often more than triple the prime rate.

This prevents defendants from using delay as cheap financing.

If you do not think it is cheap, try doing the math. Prejudgment interest in Ontario is not onerous, is not compounded, and is paid only at the end when the principal amount is due. My bank won’t do that.

Litigation moves much faster in the U.S.

Hmmmmmmmmm…

Everyone should read Justice John Laskin’s judgments. Each is a lesson on how effective legal writing can be when it is pithy, direct, and cast in short sentences.

Take for instance the April 20, 2005 decision of the Court of Appeal in Tuttle v. The Travelers Indemnity Company. In three short introductory paragraphs, Justice Laskin set out the essential facts, the result below, his own disposition and the reason why.

The head note writer could simply say, “see below.�

Certainly the conclusion reached won’t come up much: an insurer under a U.S. “collision only� insurance policy is not caught by the “no subrogation� rule in section 263 of the Insurance Act because, unlike all Ontario policies providing such coverage, it is not a motor vehicle liability policy.

The broader conclusion is of more importance. The result may seem unfair because an insurer who received a premium for collision coverage will obtain reimbursement from another insurer who did not. However, just because the legislative draftsman did not anticipate the possibility of this result is no reason for the court to re-write the statute. This is not black letter law. It is simple recognition of where an appellate court can go.

A-C-H INTERNATIONAL INC. v. ROYAL BANK OF CANADA, released May 25, 2005

As in lotteries, plaintiffs may have lots of ways to win.

When drafting pleadings, counsel should be careful to consider all of the legal pigeonholes that might permit success.

In this appellate case, the bank pleaded “that such proceeds had been obtained by ACPI fraudulently and without colour of right,� but Justice Blair held that this by itself was insufficient to bring the tort of conversion into play in the crossclaim.

Appeal allowed.

CHILDREN’S LAWYER FOR ONTARIO v. GOODIS

I have never understood administrative law. This case from last April reminds me why.

First off, this whole business of differing standards of review eludes me. To my mind, the administrative tribunal either got it right or got it wrong. The fact that the decision may be guilty with an explanation does not cut it. Who came up with the idea that a tribunal’s decision can be incorrect, but reasonable nonetheless?

It doesn’t stop there. We also have the “patently unreasonable� standard of review. On this model, the appellate tribunal can disagree with the result, and also find it unreasonable, but conclude that there may be at least some people stupid enough to be fooled by it. On that basis, the decision should stand.

Against this backdrop, we find in Children’s Lawyer that someone who had been represented by the Children’s Lawyer in her tender years thought she would like to see her legal file. She requested a copy. This simple request by a client for her file unleashed a maelstrom of argument among provincial government agencies, including amicus curiae submissions, tribunal dispositions, dispositions varied on reconsideration, tribunal standing submissions on first level of review, several fine points of statutory interpretation, appeals on standing and, finally, nice philosophizing on whether tribunal members should be able to hire counsel to follow their own decisions right up the appellate ladder, explaining to each court along the way why their specialized expert judgment is correct, or at least reasonably incorrect, or, in the final resort, unpatently unreasonably incorrect.

In 1989, apparently, the Supreme Court of Canada declared itself in favour of this procedure in a case called Paccar, but with a curious qualification. The one thing – repeat, the one thing – that the tribunal cannot do on a judicial review of its own decision is suggest that its decision was correct.

I am not making this up.

Can you imagine what the submissions of tribunal counsel might be like? “My client does not take lightly its approach to being wrong. Its errors rest on stout pillars of reason, and this is as it should be. Its decision may be travesty, but it is a most plausible travesty, justices, in every way.�

In the Children’s Lawyer case, we are all grateful to learn that the requester/client bailed out after her initial request and had nothing to do with the matter after that.

Good choice. Litigants would only have impeded this litigation.

We are even more grateful that our Court of Appeal felt that the whole thing may have been argued on the wrong basis and might never have required any resort at all to the Freedom of Information and Protection of Privacy Act, being the whole basis on which matters proceeded.

I pause here to beseech the summary dismissal of whoever at Queen’s Park generates such oxymoronic names for legislation. What next? An Act Respecting the Drowning of Chickens and Rescue of Poultry? This person’s malignity peaked in naming the Tenant Protection Act. He or she should move on to fresher fields.

To return, Justice Goudge commented right up front,

“The Children’s Lawyer, whose office operates as a branch of the Ministry of the Attorney General, treated this as a request for information under FIPPA rather than as a request from a client for her file. However reasonable it might be to analyze the interests at stake in this framework, this was not raised as an issue before us, and I will say nothing more about it.”

Now this observation is truly patent. When I pick up my shirts at the cleaners, I don’t want to hear any noise about who owns them. Even less should I need permission of a government functionary under the Pressed Shirts and Rumpled Chemises Act.

But then again, I do not understand administrative law.