$450-million EI class-action lawsuit

February 8, 2012 Yosie Saint-Cyr, LL.B. Managing Editor Employment/Labour Standards, Human Resources, Payroll, Pensions and Benefits

The federal government is facing a $450-million class-action lawsuit for failing to provide sickness Employment Insurance benefits to women already receiving maternity EI benefits while on maternity leave. The aim of the lawsuit is to ensure no other new mother who becomes seriously ill during maternity leave has to fight for sickness benefits.

This lawsuit follows a mother’s recent successful fight to win EI sickness benefits while on maternity leave. Natalya Rougas was diagnosed with breast cancer during maternity leave in 2010, and was awarded the maximum 15 weeks of sickness benefits in addition to her combined 50 weeks of maternal and parental benefits. The award amounted to about $6,000, or $400 a week.

So what happened with allocating combined maternity/parental and sickness benefits to mothers on leave?

Currently, the Employment Insurance Act allows for more than one type of special EI benefit (maternity, parental, sickness and compassionate care EI benefits) to be claimed during a benefit period while on a related leave of absence from work. However, the maximum number of weeks for combined special EI benefits is 50 in a 52-week benefit period, but can extend to 65 weeks when combined (except for biological mothers who could be eligible for combined EI benefits for 71 weeks). Proof of entitlement is required for each type of special EI benefit.

As stated by Service Canada, this means that mothers who have given birth could potentially receive EI sickness benefits for up to 15 weeks, EI maternity benefits for up to 15 weeks, and EI parental benefits for up to 35 weeks, and EI compassionate care benefits for up to 6 weeks, as long as they meet the entitlement conditions for each type of benefit requested.

Unfortunately, and according to Jennifer McCrea and Carissa Kasbohm who are spearheading this class action, the law was not applied properly. The government has denied the EI sickness claims of an estimated 30,000 mothers since 2002, the year the government amended the Employment Insurance Act to extend EI sickness benefits to women who become ill during pregnancy or maternity and parental leave.

Stephen Moreau, the lawyer who represented Rougas, and is now acting on behalf of McCrea, argues that the EI commission’s “narrow” reading of the 2002 legislation meant that only women who claimed sickness benefits during pregnancy were deemed eligible. The Toronto lawyer, at Cavalluzzo Hayes Shilton McIntyre & Cornish LLP, says that the problem is not with the law but with the staff who refuse to apply the law or apply it inconsistently.

The class-action lawsuit was filed January 19, 2012 in Federal Court and is awaiting certification to proceed.

What is a class-action lawsuit?

Class actions are lawsuits in which the claims and rights of many people, defined as having common but no identical interests, are decided in a single court proceeding brought by representative plaintiffs, or representatives of the class. A motion must be brought before a Canadian Court of Justice, and the action must meet the following five conditions in order to be certified to proceed as a class action:

The pleadings show a cause of action
There is an identifiable class of persons that could be represented by a representative plaintiff
The claims of the class members raise common issues
A class proceeding is deemed the preferable procedure for the resolution of common issues
There is a representative plaintiff, or plaintiffs, who would fairly represent the interests of the class

Any settlement reached in a class action must be approved by the court as being fair, reasonable and in the best interests of class members.

Ontario, British Columbia, Alberta, Quebec, Saskatchewan, Manitoba, New Brunswick, Nova Scotia and Newfoundland and Labrador are the provinces in Canada with class proceedings legislation in effect. In any event, the Supreme Court of Canada has recently ruled that court procedures allowing representative actions can be interpreted so as to allow for class proceedings.

This case has not yet gone to trial before the Federal Court in Canada and there has been no judicial decision made on the merits of this lawsuit.

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor

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Yosie Saint-Cyr, LL.B. Managing Editor

Managing Editor at First Reference Inc.

Yosie Saint-Cyr, LL.B., is a trained lawyer called to the Quebec bar in 1988 and is still a member in good standing. She practiced business, employment and labour law until 1999. For over 18 years, Yosie has been the Managing Editor of the following publications, Human Resources Advisor, Human Resources PolicyPro, HRinfodesk and Accessibility Standards PolicyPro from First Reference. Yosie is one of Canada’s best known and most respected HR authors, with an extensive background in employment and labour across the country. Read more