Elizabeth McIntyre

The plaintiffs, nurses who contracted SARS during the 2003 outbreak, sued Ontario for negligence and breach of section 7 of the Charter.

Ontario moved to strike the claim, arguing it owed no private law duty of care to the nurses.

The motion judge struck parts of the claim but allowed the action to proceed.

On appeal, the Court of Appeal struck the entire claim, holding that Ontario's duty to protect the public from communicable diseases does not create a private law duty of care to individual healthcare workers.

The Court also found no basis for the section 7 Charter claim, as the government's actions were not arbitrary.

The grievor, a nurse, was dismissed for innocent absenteeism after a non-work-related injury frustrated her employment contract.

The employer refused to pay severance pay, relying on s. 58(5)(c) of the Employment Standards Act, which exempts employers from paying severance to employees whose contracts are frustrated due to illness or injury.

The union grieved the denial as a violation of s. 15 of the Charter.

The Court of Appeal upheld the Divisional Court's finding that the provision discriminates against disabled employees by perpetuating the stereotype that they will not return to the workforce, and declared the provision unconstitutional.

The union and the employer had a collective agreement providing for a 5% wage increase on October 1, 1993.

The Social Contract Act, 1993 froze public sector compensation but allowed unions to preserve certain increases under s. 24(5), provided they were not merit, cost-of-living, or grid-based increases.

The union elected to preserve the increase.

An arbitrator ruled the increase could not be preserved.

The Divisional Court quashed the award, finding the increase was a simple pay increase that could be preserved, and ordered it paid.

The Court of Appeal upheld the Divisional Court's interpretation on a correctness standard but allowed the appeal in part to remit the matter to a new arbitrator to determine the appropriate remedy.