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A class-action lawsuit launched by mothers on maternity leave against the federal government is set to proceed following a ruling by the Federal Court of Appeal, says Toronto employment lawyer Stephen Moreau, who represents dozens of plaintiffs in the ongoing matter.
The lawsuit alleges the government was negligent in implementing changes to the Employment Standards Act as it pertains to parental leave benefits during a 12-year period beginning in 2002, says Moreau, partner with Cavalluzzo LLP.
Meanwhile, the plaintiffs represented by Moreau launched an appeal after the Federal Court amended a previous order to delete one of the questions related to the class proceeding — a move that would have significantly impacted the class action, says Moreau.
Possible duty of care breach
The question was related to whether the defendants breached their duty of care related to the implementation of the amended Act.
In Mccrea v. Canada (Attorney General), 2016 FCA 285 (CanLII), a panel of judges allowed the appeal, which means the question will be included and the case will proceed to trial.
“Now we can have a full decision on all of the key issues, the main issue being, was the government negligent or not,” Moreau says.
“Going to trial and having a half-answer from the court on negligence would have been a significant challenge.”
As Moreau explains, when a case is certified, the court must decide whether the named plaintiff can act on behalf of the entire class. In this case, that person is Jennifer McCrea, who had breast cancer in 2011.
The next step is for the certification judge to certify which questions will be answered by the common issue trial judge, Moreau says.
“If you send one question to trial, it doesn’t really do much for anyone,” he says. “If you send a broader set of questions, it helps the trial run more smoothly.”
‘Fairly unique appeal’
In the McCrea case, the initial judge allowed the questions, then reversed herself on part of the second question regarding duty of care.
“This was a fairly unique appeal,” he says, adding it would be more common for a judge to amend a question regarding a factual error than to delete the entire question. “It’s very unusual for a Federal Court judge to issue an order on one day, and change his or her mind and issue a different order.”
In 2002, the government changed legislation to enable people who were sick during parental leave to claim EI sickness benefits, Moreau says. However, the women named in the class-action never got those benefits, according to the statement of claim.
In the lawsuit, the class alleges the respondents breached their duty by failing to provide proper training materials, a proper website and proper claim forms, among other things.
Moreau says there is no trial date set in the “large matter.”
“It’s a national class-action involving likely tens of thousands of documents over an 11-12 year time frame,” he says.
READ more in the Toronto Star
