Conflations in Care Law

Conflations in Care Law

The McCrea case involved mothers on maternity leave who became sick, some life-threateningly so, and who applied for Federal disability benefits, which were denied.

The reason provided was that they were receiving maternity leave benefits. This disentitled them to sick leave benefits.

Maternity benefits conflated somehow with disability benefits?

As a result of this administrative decision, several mothers joined to certify a class action proceeding against the Canada Employment Insurance Commission. A tall order as litigation goes. It is not a simple matter to sue the Federal Government.

Although based on several claims, only one of their claims was certified. That was for negligent implementation of the Act in question. One aspect of the negligence they claimed took place was the pattern of denials of sickness claims by very ill mothers on maternity leave. Notably, this pattern of denials continued even after their claim was brought.

Early on, the government settled with some employees in the this litigation, and removed a clause in the benefit scheme that was problematic.

In this dispute the mother’s wanted law that supported them, while also mothering.


More specifically, the mother’s action was for denial of sick benefits was for provisions under the Employment Insurance Act, SC 1996 c 23, regarding in particular parental benefits under EI when parents became ill. The claim alleged that the Canadian Employment Insurance Commission and Service Canada had failed to properly implement the amendments, which resulted in individuals who were on parental leave being denied their claims for sickness benefits.

The class initially claimed the torts of misfeasance of public office, negligent misstatement and unjust enrichment.

The Federal Court certified the class proceeding for negligent implementation of the Act. The government appealed and that litigation went on for several years. See the more recent decision at the Federal Court of Appeal. a

See McCrea v Canada (AG), 2015 FC 592, (Motion for Class Certification), online: <http://www.cavalluzzo.com/docs/default-source/News-Items/order-and-reasons-%28c1327631xa0e3a%29.pdf?sfvrsn=0&gt; [McCrea (Class Certification]).

The motion for the class action for $450 million in damages was heard in the Federal Court in 2015 and the plaintiff mothers succeeded. It is quite uncommon that mothers litigating as a group prevail, as they did.

Below is a photo of named and lead plaintiff and Calgary mother Jennifer McCrae was sources from the Toronto Star online (ref’d below with link to its source).

Delving more into the actual provision in question, it provided that disability benefits were available only to people who would otherwise be available for work. Being at home taking care of an infant was not that.

In 2013 the clause about being available for work was removed, but the rule preventing sick benefits for mothers on maternity leave remained in force. See Gloria Galloway, “Ottawa Spends $1.3 Million Fighting Sick Moms’ EI Disability Benefits Lawsuit”, The Globe and Mail (30 January 2015) online: The Globe and Mail <http://www.theglobeandmail.com/news/politics/ottawa-spends-13-million-to-prevent-sick-new-moms-from-collecting-ei/article22731091/>.

Turning to the particulars of Jennifer McCrea’s situation, she had contributed to the EI program, had a baby, and received maternity leave payments. However, she became seriously ill while on maternity leave, and so she applied for sick benefits. Her request was denied. She then brought a claim arguing that the strict interpretation of the Act, which required that a sick benefit-recipient be available for work during coverage, was restrictive and that government was negligent in its refusal to allow the sick benefits to sick new mothers.

She pointed out that sick pregnant workers could access the 15 weeks of sick leave followed by maternity leave under the legislation, but that statutes excluded new mothers with medical disabilities/illnesses.

In keeping with the topic overall of Law’s Mum Blog. I note that after the McCrea case was certified by the Federal Courts as a class action, the federal government passed the Helping Families in Need Act. This Act contains provisions based on compassionate grounds and critical illness, a positive addition in the area of disability support. In this regard, it offers a maximum of 52 weeks leave for care of a critically ill child. However, this is not the same thing as a provision concerning care for a chronically ill or severely disabled child.

In that benefit scheme, the definition of critically ill child provided by government excludes a child who is always severely disabled. A critically ill child is defined in that statute is “a child who has a life-threatening illness or injury, that can include various acute phases of illness and for which continued parental care or support is required.

This does not include a child with a chronic illness or condition that is their normal state of health. It is evident that there must be a significant change from the child’s normal or baseline state of health at the time they are assessed by a specialist medical doctor. Which is a separate – but definitely related – care law issue for complex care mothers, in particular. However, given that we’re talking about Federal benefits here, which many caregiving mothers are simply not eligible for because they are not federally employed, it is not something I will focus on.

Suffice it to say that this support policy to mothers sidesteps the issue of what happens when a worker gives birth to a severely disabled infant. If she had a critically ill baby, one wonders if she would have difficulty accessing the additional benefit. Either way it may not be easy to access disability support of any kind. See “EI Benefits for Parents of Critically Ill Children – Overview”, (7 June 2016) Government of Canada, online: https://www.canada.ca/en/services/benefits/ei/ei-critically-ill-children.html

The McCrea case offers another example of how working mothers’ state supports fail in the setting of severe illness or disability. It is an example that invites one to consider government’s rejection of the claims to support in the convergence of disability, mothers, infants and care.

After 6 years of litigation, the Federal Court approved a class-action settlement. Ottawa is ordered to pay approximately $4,000 in sick benefits to approximately 2,000 -mostly mothers – who were seriously ill during their maternity leave, but who were denied money.

I note that Jennifer McCrea, was also awarded another $10,000 for her work as the named plaintiff. This media report stated that she was “very relieved that it is over” < https://www.thestar.com/news/canada/2019/01/30/court-approves-ei-sickness-class-action-settlement-with-new-moms.html>


As noted above, McCrea’s lawsuit began as a tort case. However on its facts, the case speaks volumes about the troubled status of caregiving mothers equality rights in public law. Joyfully the mothers prevailed, which is not a common occurrence in the setting of medical disability and support policy where children are also in the need-of-support frame.

Hat’s off to Jennifer!