A class action lawsuit is going ahead that claims thousands of Canadians who fell ill while on parental leave should not have been denied sick leave benefits from the federal government, CTV News has learned.
Jennifer McCrea of Calgary alleges she and thousands of others should have been paid 15 weeks of Employment Insurance Sickness Benefits between 2002 and 2012, on top of the up-to 50 weeks of Employment Insurance Maternity and Parental Benefits they were already being paid.
McCrea had a nine-month-old son in 2011 when her doctor told her she needed a double-mastectomy. Originally, she was told she would be eligible for the 15-week benefit, but then she was denied.
The lawsuit is seeking $450-million of damages to cover retroactive payments and alleged “pain, suffering and psychological losses.”
According to McCrea’s claim, at least 3,177 of people who applied for EI Sickness Benefits between 2002 and 2011 were denied.
The claim alleges the government took an overly “strict interpretation” of the Employment Insurance Act clause that required those claiming sickness benefits to “be otherwise available for work.”
McCrea’s case is not the first time denial of sickness benefits by those on parental or maternity leaves have been disputed.
Employment lawyer Stephen Moreau, who is also representing McCrea, helped Toronto mother Natalya Rougas win Sickness Benefits in 2011, after she was struck by breast cancer and required chemotherapy and a double-mastectomy while on maternity leave. The government had turned down Rougas’ application for about $400 in weekly Sickness Benefits due to her not being otherwise available for work at the time of her illness, but an EI Board of Referees adjudicator sided with Rougas’ appeal.
After that, the government passed the Helping Families in Need Act and began routinely paying Sickness Benefits to women who became ill while on parental or maternity leave.
In its response to the class action application, the government argued that there was “no reasonable prospect of success,” citing a number of reasons including that the EI Board of Referees adjudicator had “no jurisdiction to read words into the Act.”
Although Minister of Employment and Social Development Pierre Poilievre would not comment on McCrea’s particular, he said the government’s “hearts go out to the families in these difficult circumstances.”
"That’s precisely why, in 2013, our government brought in the Helping Families in Need Act (C-44) to ensure that parents who fall ill during their parental claim can access sickness benefits,” he went on to say.
The Helping Families in Need Act does not apply to McCrea, whose claim was made before it came into effect in March, 2013.
The government spent more than $1.3 million in its unsuccessful attempt to prevent the class action lawsuit from going ahead.
McCrea’s class action represents those who, from March 3, 2002 to March 24, 2013
- applied for and received EI parental benefits
- suffered from an illness, injury or quarantine during the course of their parental leave; and,
- applied for EI sickness benefits and were denied because they were on parental leave or not otherwise available to work at the time of their sickness benefit application.
