Government bureaucracy being challenged in class-action suit by mothers denied sickness benefits

by David Keelaghan05 Oct 2016
The lead lawyer in a class-action suit currently underway against the government believes there are systemic problems when it comes to bureaucracy with the benefits process.

Stephen Moreau is representing thousands of women who were denied sickness benefits after developing an illness while on maternity leave. The class dates back to 2011 when Moreau helped Toronto mother Natalya Rougas win an appeal after she was denied EI sickness benefits despite being diagnosed with breast cancer while on maternity leave.

Rougas initially lost her appeal with the EI Board of Referees, but was more successful when faced by the highest EI tribunal, the Umpire.  Shortly after this, Moreau received a call from another mother who faced the same problem, and after further investigation, he realized these were far from isolated incidents.

“This class-action suit is on behalf of thousands, maybe tens of thousands of women, and a claim of $450 million,” he says.

The woman that contacted Moreau following Rougas’ successful appeal was Jennifer McCrea. The Calgary resident was diagnosed with breast cancer in 2011 while still on parental leave following the birth of her second son. She subsequently had a double mastectomy, a procedure she believed meant she could receive EI sickness benefits while in recovery. As it turned out, her assumption was wrong.

“I called into Service Canada to see about my EI sickness benefits and had a lengthy conversation with someone there and they said I qualified. That meant my parental leave would stop, I would go on sick leave for however long my doctor said I needed, I would then finish my parental leave and after that I would go back to work.”

Having submitted the required paperwork and made numerous trips and phone calls to enquire about her claim, eventually she was informed by Service Canada that her application had been denied. The reasoning the government gave was that McCrea was not eligible for sickness benefits as she was on parental leave at the time and thus not available to work.

Living in the Calgary Southwest riding, she turned to her local MP, who coincidently was also the prime minister of Canada at the time. Stephen Harper’s office also hit a brick wall when enquiring on McCrea’s behalf, but it wasn’t long before another possible solution presented itself.

“I did a Google search and found out that on the day I was diagnosed a woman in Ontario had won her fight against EI,” says McCrea.

Natalya Rougas’ case has since turned into a full-blown class-action suit, but despite the claim amount and number of plaintiffs involved, the silence has been deafening from Ottawa, says Moreau.

“There has been no change from the government in the sense of trying to resolve this,” he says. “They have never explained why they are fighting this. We haven’t even received a statement of defence saying there’s a statute I haven’t read saying these benefits aren’t payable. We haven’t seen anything that explains what their actual position is.”

This approach has remained despite new legislation being enacted in 2013 by the Harper government to prevent situations like this arising again. It makes the whole process even more frustrating, says McCrea.

“The Conservatives created a Helping Families in Need Act so anyone this happened to now would receive those benefits. It left the rest of us, myself included, in limbo. So this class-action is saying what about us?”

Since that act came into force and the class-action suit started, Canada has had big changes in its corridors of power. In the lead-up to the last election, McCrea felt a new administration might mean a resolution to this ongoing dispute. So far, however, she has been left disappointed.  
“We put some pressure on both the NDP and the Liberals before the election asking what they would do if elected. It was the Liberals that said in a written statement, ‘we will settle this, immediately.’ That was a year ago, but so far – nothing.”

This inaction is pretty damning in Moreau’s view, who points out that the issues that have arisen in this case are the result of previous legislation not being followed properly.

“You can only take promises made during an election so far, but this promise was made in writing,” he says.  “They (The Liberals) were in government in 2002 when they brought about the underlying legislative changes on sickness during parental leave benefits. They are the ones that made this more accessible to women.”
*The office of The Minister of Families, Children and Social Development that oversees Employment Insurance benefits was contacted by Life-Health Professional for this piece but did not respond by time of writing.

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