Unjust Or Just Too Late? Loss of Sickness Leave Benefits Leads To Class Action

Should individuals on parental leave have sick leave benefits?

The federal court has recently approved of a class action started by parents who were denied sick leave while on parental leave. These parents were faced with sickness while on parental leave and applied for Employment Insurance Sickness Benefits which was denied by the federal government. The name of the woman behind the action is Jennifer McCrea, she lives in Calgary.

McCrea’s story

While on parental leave with a nine month old baby, McCrea was informed that she would require a double-mastectomy. McCrea applied for sick leave and was informed she qualified for 15 week benefits but was then later denied these benefits.

McCrea is not alone; she suggests that there are thousands of others who should have received their 15 week benefits between 2002 and 2012 in addition to the 50 weeks of Employment Insurance Maternity and Parental Benefits they were paid. According to McCrea’s claim approximately 3,177 Employment Insurance Sickness Benefits applicants were denied benefits within this time period. This $450 million class action is pursuing compensation for damages including retroactive payments and claims of pain, suffering along with psychological losses.


In 2011, a Toronto lawyer successfully argued a case on behalf of a woman who was diagnosed with breast cancer, had to undergo chemotherapy and get a double-mastectomy while on parental leave. However, the Toronto lawyer faced some challenges in his case as his first attempt was not successful.  He  was informed that his client would not be eligible for Sickness Benefits as she was not available for work during the time. The lawyer chose to appeal the decision and took the matter to the Employment Insurance Board of Referees; an adjudicator supported his client’s entitlement to Sickness Benefits.

Following this decision, the Helping Families in Need Act was put in place by the government which pays women who have become ill while on parental or maternity leave. Why isn’t McCrea covered under this Act?

McCrea brought her action forward before this legislation was in force.  Perhaps this is why the class action was approved as these rights are already provided to women who become sick while on parental leave after March of 2013. However, the government argues that McCrea has a weak case.

The government is arguing that the Employment Insurance Board of Referees made a decision outside of its jurisdiction by adding words that were not in the act; hence this skewing the interpretation of the act. It was reported that the government has spent over 1.3 million dollars in legal fees to counter this class action.

This is definitely an interesting case to follow.

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Points of discussion
1. Do you believe McCrea should be compensated under the Employment Insurance Act?
2. Do you believe the law should be enforced in strict coherence to the words or in the spirit of the law?

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