Court sides with mothers who were denied extra EI benefits

Toronto employment lawyer Stephen Moreau is “thrilled” that the Federal Court has approved a multimillion-dollar class-action settlement launched by people denied employment insurance (EI) sickness benefits because they were on parental leave at the same time as their illness, reports the Toronto Star.

“I’m glad to know this very long chapter has been closed,” says Moreau, a partner with Cavalluzzo LLP.

He says he’s particularly pleased that class members will receive 100 per cent of the EI benefits they are owed.

Moreau and his law firm were awarded about $2.5 million to cover legal costs, says the Star.

Change to EI legislation

The court action stems from a 2002 change to EI legislation that extended sickness benefits to working parents who become ill during pregnancy or while on maternity and parental leave.

Thousands denied between 2002 and 2013

The woman at the centre of the case was diagnosed with breast cancer in July 2011, while she was on maternity leave with her youngest son, who was eight months old at the time.

She had a double mastectomy in August 2011 and was deemed cancer-free shortly afterwards, but was denied sickness benefits, despite a 2002 law that allowed new parents to access the additional weeks of EI payments.

Moreau helped her take the government to court in 2012 alleging thousands of others were also denied benefits between 2002 and 2013 when the Tories clarified the law for all future claims.

The problem was that prior to 2013, the government wouldn’t let new mothers and fathers switch from parental to sickness benefits until they could show they were otherwise available for work.

The Star says the settlement is estimated to be worth between $8.5 million and $11 million, depending on the number of class members who apply for the money.

The Lawyer’s Daily says the Employment Insurance Act was amended in 2002 to allow for the “stacking” of maternity, parental and sickness benefits, but Moreau says the amendments “just never seemed to carry through into actual practice.”

“Training wasn’t done properly’

“Websites weren’t amended, training wasn’t done properly, and key documents that outline who gets what benefits and who adjudicates them were not properly changed to account for the scope of these amendments,” he tells the online legal publication.

“What happened was this doctrine of being otherwise available for work kept getting applied. So, what we were alleging was that this failure to update websites and properly train people amounted to operational negligence on the government’s part,” he further tells The Lawyer’s Daily.

Moreau says the case also shows the law of negligence is another method to hold governments to account.

“It’s not so for every case, but more and more it is something that governments should be wary of, and class plaintiffs can take heart that the government may be called to account in private negligence law,” he says. “Anytime you have a novel case that says that governments may owe these duties of care to people then I think people should sit up and take notice.”