Mothers denied sickness benefits urge Liberal government to end legal battle
More than a year has passed since Liberals pledged to ‘immediately end’ Ottawa's legal battle with ill mothers.
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For Jennifer McCrea, 2016 was a milestone year.
The Calgary mother of two celebrated five years cancer-free. She saw her favourite band The Tragically Hip five times. And she ran five marathons in 12 months to mark her good health.
But as the New Year dawns, there is a gnawing sense of unfinished business for the breast cancer survivor who launched a class action lawsuit in 2012 on behalf of more than 3,000 mothers who say they were wrongfully denied EI sickness benefits while on maternity leave.
“During the election, the Liberals promised to ‘immediately end’ this legal battle,” says McCrea, 39.
“They’ve been in office now for a year and we are still waiting.”
McCrea, who has contacted about 20 MPs of all political stripes about holding the Liberals to account, is growing impatient.
“It’s been very frustrating,” she says in a phone interview. “Nobody seems to be able to tell me anything.”
A spokesman for Families, Children and Social Development Minister Jean-Yves Duclos says the government is “working on the file.”
“Because it is in court right now, I cannot comment more at this time,” Mathieu Filion told Torstar in an email.
In July 2011, when her second son Ethan was just eight-and-a-half months old, McCrea was diagnosed with breast cancer and had a double mastectomy.
But when she applied for EI sickness benefits so she didn’t have to use the rest of her parental leave to recover from the surgery, she was turned down.
EI legislation was changed in 2002 to extend sickness benefits to working women who become ill during pregnancy or while on maternity and parental leave.
It meant new mothers, such as McCrea, who were diagnosed with a serious illness could take up to 15 weeks of sickness benefits to recuperate and then resume their maternity or parental benefits.
But EI officials didn’t interpret the changes that way; they argued that since an ill woman on maternity or parental leave wasn’t available for work, she wasn’t eligible for EI sickness benefits.
It wasn’t until a Toronto woman successfully appealed her case in 2011 that the federal government took notice.
The previous Harper government eventually changed the law in 2013 to ensure new mothers with serious illnesses are not denied EI sickness benefits.
And it quietly paid about 350 women who had their applications denied in 2012 and 2013.
But it refused to pay McCrea and others who were denied sickness benefits between 2002 and 2013.
In May 2015, a judge certified McCrea’s class action suit, which if successful, could give her and other women deemed class members up to $7,515 each, plus damages, according to her lawyer Stephen Moreau of Cavalluzo Shilton McIntyre Cornish LLP.
Government documents released in March 2016, show the previous government spent $2.2 million fighting the class action, but it is not clear how much the Liberals have spent.
Moreau says the mothers have been “more than patient.”
He hopes a court decision last fall in McCrea’s favour will bring the government to the table.
The decision, based on the former Harper government’s appeal of what the judge can rule on in the class action suit, has strengthened McCrea’s hand, Moreau says.
“This decision allows me to argue that the government breached its duty of care to these women,” he says. “This is the most serious and costly element of any successful class action case, if proven
“One would think the government would want to avoid that risk.”