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!

To Be Negligent Or Not To Be Negligent? That Is The Question.

Featured

Ryan Dobson with his mother Cynthia and his maternal grandmother

This is the very first post on my new blog! Stay tuned for more & subscribe below to get notified when I post new updates.

This wonderfully warm photo was taken by Diane Doiron of the National Post back in 1999. https://www.fact.on.ca/newpaper/np99070m.htm In it we see caregiving mother Cynthia Dobson with her laughing young son Ryan and the maternal grandmother, also interviewed by the National Post.

Cynthia & Ryan were involved in a tort case, along with Cynthia’s father who acted as guardian ad litem for Ryan. Cynthia was situated in an adverse relation to her young son in this case, which you can access at Dobson (Litigation Guardian of) v. Dobson, 1999 CanLII 698 (SCC), [1999] 2 SCR 753, <http://canlii.ca/t/1fqkz>, retrieved on 2019-11-27.

Dobson v Dobson (Litigation guardian of) was heard in the Supreme Court of Canada. In this, my very 1st Blog Post, I provide a Case Brief and Commentary. So, first I provide a basic case brief of Dobson. And then present my commentary which offers a few thoughts on what was going on in this case from the legal perspective of a caregiving mother.

The Dobson case involved a car accident that happened in very bad weather. A pregnant woman, Cynthia Dobson, was driving the car. The accident she was in caused serious physical injury to her fetus and the fetus was subsequently delivered by c-section the day of the accident.

The Maternal grandfather of Ryan, acting as litigation guardian sough to assert that his daughter Cynthia owed a duty of care to her son, Ryan. This raised some thorny legal issues in the area of motherhood. I will speak to that issue after I relay how the court examined this situation.

The primary legal issue identified by the court in this case was whether or not Cynthia Dobson (and pregnant women more generally) can be found liable for injuries caused to a fetus as a result of their own actions.

The Supreme Court of Canada decided that even though the relationship between a women and a fetus met part of the legal test in a duty of care analysis (reasonable foreseeability and proximity for legal negligence) for public policy reasons the court would not impose a duty of care on Cynthia Dobson.

Thus a fetus, when born, could not sue their own mother. The reason the matter was decided this way, was that the court found that imposing liability on a woman when pregnant threatened her bodily integrity, her privacy, and also her autonomy.

The court clarified that a child ‘born alive’ could sue a third party for injuries caused to them before their birth, but they cannot sue their own mother in a like way.

The reasoning of the court was that if a duty of care was found to exist between a mother and her ‘unborn child’, then mothers more generally would find themselves legally liable whenever engaging in activities that could potentially cause injury to a fetus were she pregnant. This would then impact all pregnant women as well as those who may become pregnant one day.

Moreover, the prospect of conducting a trial against one’s own mother could have significant emotional ramifications and harm the relationship, opined the Supreme Court of Canada. Ultimately, the court determined that this was a policy issue for the legislature to tackle and no duty of care was imposed on Cynthia Dobbson.

Justice Major did not agree with the majority of the other judges. He found that while a mother had no duty of care to a fetus, she does have a duty of care to a child (born alive), so long as she knew or should have reasonably known that she was expecting at the time the incident took place. He found there to be no legal nor public policy reason to decide against a pregnant woman being liable in this manner on the basis that it would restrict the mother’s freedom.

His opinion was that this pregnant woman did not have a right to be a negligent driver, and therefore the ‘born child’s’ claim does not impede on any legal right of the pregnant woman. To summarize his view, to grant a pregnant woman immunity from the consequences of her conduct would set up a legal conundrum since it would give an advantage to a defendant that no other defendant in tort law would have.

Law’s Mum Case Commentary

Graeme Hamilton (see link above) wrote that this “landmark” case “rallied forces on both sides of the abortion debate and led Supreme Court justices to muse over the rights of a foetus.”

First – the National Post wrote that Cynthia Dobson was driving her car toward Moncton from the family home & was following her husband’s vehicle along with other drivers on a windswept highway. Her car hit a pile of slush & she swerved into the other lane, crashing into a moving truck.

So, what was and is the Dobson really about? What was it that they sought and why did they need to attempt this legally drastic action?

As stated when interviewed by The National Post the family stated the law suit was “about looking after Ryan.” It was about care. It was about support. Of a child with a significant medical condition.

“It’s being done for Ryan’s benefit and Ryan’s benefit alone,” said Ann MacAulay, half of the wife-and-husband legal team representing Ryan. Bev Price, Ryan’s maternal grandmother stated in the same interview that “It’s suing the insurance company for Ryan’s sake,” added . “That’s what it has always been.”

The “problem” was, that to be able request that the insurance company pay out, Ryan — represented by his maternal grandfather, Gerald Price, as litigation guardian — needed to be able to sue his own mother in tort, for legal negligence. As the National Post writer noted, no child in Canada had sued their own mother for injuries sustained while she was pregnant.

I address this case to make one point only.

It is that mothers with severely disabled children frequently agree to socially & legally risky things in order access support & care for their medically disabled children. Dobson is nothing new in this particular regard.

In this case, had the Supreme Court of Canada found that young Ryan could sue his own mother in negligence, and had he been able to show that she had breached a duty of care that caused his condition, then that would effectively have operated as nasty precedent in the life of his mother. Such a finding would ‘legally colour’ how she was perceived outside of tort law. And even socially. And as the court noted, there could be harmful emotional aspects as well.

Were child welfare authorities to investigate the family, as is too often the case where there are grossly under-supported mothers with medically complex kiddos & youth, their investigation would uncover that Cynthia Dobbs had already been found legally negligent by a court.

Although the test for negligence under child welfare legislation is not the same as it is in tort law, contrary to the children’s song sticks and stones, names (like “negligent mother”) can cause legal damage down the road.

Dobbs was prepared to assume all of that risk, for Ryan. For his future care. So that his needs could be met. She would not have appreciated that it may also have made him more legally vulnerable.

All of which means that Dobson v Dobson was not at all what it was framed as at the time. It was about disability care & support in the context of #complexmothering. And it was about the extraordinary lengths a caregiving mother would go to to access it.

How was that missed you may wonder? It was missed because complex care of infants and children is way off the radar in law. Not only in tort law but in many areas of law where mothers seek support. It was missed because it was not the issue that went before the court. The practice of finding ways and means to access support for severely disabled children is much the same now, as it was in 1999, when this cases was decided. Mothers try this way and they try that way, and as in Dobson often times they do not prevail.