CASE IN POINT Disabled Employee Challenges Denial of Statutory Severance Pay Ontario Nurses Association v Mount Sinai Hospital, 2005 CanLII 14437 (Ont CA) Facts Christine Tilley was hired as a nurse in the neonatal intensive care unit at Mount Sinai Hospital in 1985. Ten years later she seriously injured her knee in a waterskiing accident. Because of subsequent complications, including depression, she was unable to return to work and in 1998 the hospital terminated her employment on the ground of innocent absenteeism. The employer refused to pay Tilley statutory severance pay under the ESA because the Act contained an exception for employees whose ability to remain on the job has been "frus- trated" (made impossible) as a result of an illness or injury. Tilley challenged this refusal, arguing that the exception violated her section 15 equality rights under the Charter. The employer countered that the legislation was not discrimina- tory because the main purpose of statutory severance pay is prospective-to compensate employees as they move on to find new employment. It contended that employees whose employment has become frustrated because of severe injury or illness are unlikely to return to the workforce, and therefore it is not discriminatory to deny them this form of compensation. Relevant Issue Whether section 58(5) (c) of the ESA, which creates an exception to an employer's c to pay everance pay A) What are your views on this change of law? B) What can be some disadvantages of amending the laws frequently? to employees whose contracts of employment have been frustrated because of illness or injury, contravenes section 15 of the Charter. Decision The Ontario Court of Appeal found that the denial of ESA severance pay to employees whose contracts have been frustrated because of illness or injury violated the Charter's equality rights provision. The court held that even if it ac- cepted the employer's argument that the dominant purpose of severance pay is prospective-to compensate those em- ployees who will return to the workforce-this exception still contravenes section 15. This is because differential treatment based on disability is premised on the Inaccurate stereotype that people with severe and prolonged disabilities will not return to the workforce. The court concluded that this stereotype "can only have the effect of perpetuating and even promoting the view that disabled individuals are less capable and less worthy of recognition and value as human beings and as members of Canadian society. As a result, section 58(5) (c) of the ESA was struck down and Tilley was entitled to statutory severance pay.