McCrea v. Canada

McCrea v. Canada
Court (s) Database
Federal Court Decisions
Date
2019-01-29
Neutral citation
2019 FC 122
File numbers
T-210-12
Notes
Digest
Decision Content
Date: 20190129
Docket: T-210-12
Citation: 2019 FC 122
Ottawa, Ontario, January 29, 2019
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
JENNIFER MCCREA
Plaintiff
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
ORDER AND REASONS
[1] The Plaintiff and Defendant bring this joint motion pursuant to Rule 334.29 of the Federal Courts Rules, SOR/98-106 [the Rules] seeking approval of the Settlement Agreement in this class action. Within the Settlement Agreement, the parties also seek an honorarium in the amount of $10,000 for the representative plaintiff, Jennifer McCrea; the legal fees of the Class Counsel; a process to permit opting out of the Settlement Agreement; the appointment of a Monitor and a process to resolve disputed claims. In addition, the parties seek approval of an ancillary order to amend the Plaintiff’s Statement of Claim to reflect the causes of action which were certified and to certify an amended definition of the “Class”. The Court issued a Direction on December 4, 2018 to amend the style of cause to reflect that the Defendant is Her Majesty the Queen in Right of Canada.
[2] For the reasons that follow, the Court approves the Settlement Agreement, the honorarium for the representative plaintiff and the fees and disbursements of Class Counsel.
I. Background
[3] The background to this action was previously described in McCrea v Canada (Attorney General), 2013 FC 1278 [McCrea 2013], which addressed the Defendant’s motion brought pursuant to Rule 220 to determine a question of law, which the Defendant argued would be conclusive of the action.
[4] The background was also described in McCrea v Canada (Attorney General), 2015 FC 592, [2015] FCJ No 1225 (QL) [McCrea 2015], which is the Order and Reasons for the certification of this class action.
[5] The affidavit of Mr. Michael Wright, the managing partner at Cavalluzzo LLP, the Class Counsel’s firm, provides additional details of the procedural history. In addition, the Defendant provided a succinct and consistent summary.
[6] To provide context for the issues to now be determined, the key aspects of the background previously described are set out below.
[7] The Plaintiff, Ms. McCrea, represents others who, like herself, were contributors to the Employment Insurance [EI] program, gave birth to a child, and were in receipt of parental benefits. Some EI recipients became ill while in receipt of parental benefits and applied to convert their parental benefits to sickness benefits during their period of illness, which would have extended their benefit period to account for the period of time they were ill. Some recipients were not able to care for their child while they were ill and had to rely on others to do so. The EI recipients who sought to convert their parental benefits to sickness benefits were denied the sickness benefits. Some returned to work, although they required more time to recover from their illness, because their parental benefits ended.
[8] Other EI recipients, who became ill and made inquiries about sickness benefits, were advised by representatives of the Employment Insurance Commission (the relevant authority at the time) or Service Canada that they were ineligible for the sickness benefits and, therefore, they did not apply to convert their parental benefits to sickness benefits.
[9] The Plaintiff explained that the rationale or explanation offered for being denied sickness benefits was the strict application of paragraph 18(b) of the Employment Insurance Act, SC 1996, c 23 (as amended) [the Act], as it read at the relevant time. Paragraph 18(b) required that a claimant for sickness benefits be otherwise available for work. Claimants already on parental leave, who were caring for a child and receiving benefits, were considered not to be available for work.
[10] The Plaintiff argued that the wording of paragraph 18(b) made it impossible for claimants to receive sickness benefits. She noted that if the illness had occurred prior to the birth of their child, the claimants would have been entitled to up to 15 weeks of benefits because they would have been otherwise (i.e., but for their illness) available for work. Claimants would have subsequently received maternity and parental benefits after the birth of their child.
[11] The Act had been amended in 2002 by the Budget Implementation Act, 2001, SC 2002, c 9 to, among other things, respond to the decision of the Canadian Human Rights Tribunal [CHRT] in McAllister-Windsor v Canada (Human Resources Development), [2001] CHRD No 4, [2002] CLLC 240-001 [McAllister-Windsor]. In McAllister-Windsor, the CHRT found that the “anti-stacking” or capping of sickness, maternity and parental benefits at 30 weeks (the cap in existence at that time) discriminated against women who became ill before or during the maternity or parental leave period. The 2002 amendments allowed for extensions of the benefit period to allow “stacking” of maternity, parental and sickness benefits, but did not include a specific amendment to section 18 of the Act to remove the requirement that a person seeking sickness benefits must be otherwise available for work.
[12] The Plaintiff acknowledged that the parental benefits regime had evolved over the years in several positive ways, including the 2002 amendments to respond to McAllister-Windsor. The Plaintiff argued that the 2002 amendments were intended to provide that those on parental leave who become ill either before, during, or after their parental leave would be eligible to receive sickness benefits and that this would extend their benefit period by up to 15 weeks. The Plaintiff argued, among other things, that the 2002 amendments were not implemented as intended to address the identified gap because those who became ill while on parental leave were still denied sickness benefits.
[13] The Plaintiff noted that many claimants who were denied sickness benefits appealed their decisions to the Board of Referees and some also appealed to the EI Umpire (a process that no longer exists). Although the vast majority of claimants were unsuccessful, two (Ms. Rougas and Ms. Kittmer) were successful before the EI Umpire. It appears that these appeals to the Umpire, along with other advocacy efforts, raised awareness of the impossibility of being available for work while on parental leave, which is intended to permit a parent to be away from their employment to care for a young child.
[14] On March 24, 2013, amendments to the Act included in the Helping Families in Need Act, SC 2012, c 27 came into force. The Helping Families in Need Act, among many other amendments, amended section 18 to provide that those in receipt of parental benefits were not disentitled to sickness benefits due to their unavailability for work. This amendment ensured that claimants after March 24, 2013, in similar circumstances to the Plaintiff and Class Members would not be denied sickness benefits due to their unavailability for work. Since March 2013, those who apply to convert their parental benefits to sickness benefits are eligible to extend their benefits by up to 15 weeks, assuming that the other criteria for eligibility are met. However, the 2013 amendments do not benefit the Plaintiff or the Class Members who were on parental leave and became ill before that clarification in the Act came into force because the amendments are not retroactive.
[15] Although the Plaintiff filed her Statement of Claim in 2012, this class action is limited to the period from March 3, 2002, the date of the coming into force of the 2002 amendments, to March 24, 2013, the date of the coming into force of the 2013 amendments.
[16] Despite the change in policy evidenced by the 2013 amendments, the Defendant opposed the Plaintiff’s claim.
[17] The Defendant initially brought a motion pursuant to Rule 220 of the Federal Courts Rules, SOR/98-106, for a preliminary determination on a question of law, which focused on the interpretation of key provisions of the Act. The Defendants argued that the determination of the following question would be conclusive of the central issue and would dispose of the litigation:
Did the Employment Insurance Act preclude the payment of sickness benefits to individuals during the period in which they were in receipt of parental benefits, under the legislation as it stood between March 3, 2002 and March 24, 2013?
[18] The Court dismissed the Defendant’s motion (McCrea 2013), which meant that the question of law would not be determined. The Court found, among other things, that the statutory provisions at issue were interrelated and to some extent inconsistent, and that the Act had to be read as a whole to best understand the benefits regime. The Court noted that the record necessary to support the motion was at that point not sufficient and would be contentious at the next stages. In addition, the resolution of the proposed question of law would only narrow the issues, leaving several other complicated issues to be resolved.
[19] On the Plaintiff’s motion for certification in 2014, the Defendant argued that the causes of action pleaded had no reasonable prospect of success and disputed every other aspect of the test to determine whether the action should be certified as a class action.
[20] Upon considering the submissions of the parties, the evidence on the record and the jurisprudence, the Court granted the Plaintiff’s motion and certified the action as a class proceeding, but only in part (McCrea 2015). The causes of action in negligent misrepresentation, unjust enrichment and misfeasance in public office were struck as they were found to have no reasonable prospect of success. The cause of action in negligence and some common questions which arise from that cause of action were certified. Ms. McCrea was found to be an appropriate representative plaintiff for the Class Members.
[21] The Defendant subsequently brought a motion, which the Court granted, to clarify specific terms of the Certification Order. The Plaintiff successfully appealed that decision and the original terms were reinstated. The parties then prepared for the next steps in the litigation and entered into discussions regarding amendments to the Plaintiff’s Statement of Claim to reflect the causes of action as certified and to amend the class definition. In early 2018, the Plaintiff adjourned its proposed motion to amend the definition of the class to pursue further settlement discussions to resolve the litigation. Ultimately, a proposed settlement agreement was reached in August 2018.
[22] On September 11, 2018, the Court approved the Notice Plan, including the Notice to the Class informing them of the Certification Order, the proposed Settlement Agreement and other pertinent information. This information includes: how to support or object to the settlement in writing or in person, how to participate at the hearing of the motion to approve the settlement, how to opt out of the class if desired, how the claims process would operate, who will administer the agreement, how disputes can be addressed regarding the payment of benefits pursuant to the agreement, and where to obtain additional information.
[23] The Notice Plan described the manner in which Notice would be provided in order to ensure, to the greatest extent possible, that all potential Class Members are aware of the proposed Settlement Agreement and, if approved, how they can claim their benefits. The Notice of the Settlement Agreement was posted on the Government of Canada website, Class Counsel’s website, and other social media and was published in major Canadian newspapers.
[24] This brings us to the present motion. In accordance with Rule 334.29, the Court must approve the Settlement Agreement. This motion is brought by the Plaintiff jointly with and on consent of the Defendant. However, this is not a rubber stamp process. Although the Court cannot tinker with the terms and conditions of the Settlement Agreement, the Court must determine whether the Settlement Agreement as a whole is fair and reasonable and whether it will reach those entitled to benefit from it.
[25] On this motion, Class Counsel thoroughly explained the terms of the proposed Settlement Agreement and responded to several questions from the Court. Similarly, Counsel for the Defendant highlighted key features of the Settlement Agreement and clarified some small, yet significant, aspects which will ensure that the settlement can be implemented efficiently.
II. The Proposed Settlement
[26] The proposed settlement provides that:
Class Members who establish that they applied for sickness benefits for an illness, injury, or quarantine during their parental leave, and were denied, are eligible for compensation. Claimants identified through the Employment and Social Development Canada [ESDC] File Review Project are deemed to be eligible Class Members. Claimants not identified as Class Members by the File Review Project will be eligible where it is established that they meet the class definition.
ESDC will determine the amount of each Class Member’s payment. The Defendant has agreed to make payments to eligible Class Members in an amount that is equivalent to the amount of sickness benefits that they would otherwise have received.
Class Members will submit their claims in a simple form and will not be required to provide medical evidence to establish their illness.
All eligible Class Members, including eligible estates, will receive compensation in satisfaction of all the claims raised, calculated as the number of weeks of illness they suffered during that benefit period, less the number of weeks they were paid sickness benefits, multiplied by the weekly EI benefit rate that applied at the time of their claim. The highest benefit rate in that period was $501. The details are set out in the Settlement Agreement which is attached to the Court’s Order.
In exchange for the compensation paid, all Class Members, except for those who have opted out within the Opt Out Period, will be deemed to have provided a full and final release of all claims against the government in respect of the matters at issue.
The opt out deadline will be 60 days from the date of the approval of the Settlement Agreement.
Class Members will be able to make their claim for compensation within a six month claims period. The claims period begins on the Implementation Date of the Settlement Agreement. Claimants may apply within five months from that date, with a possible one month extension, and their claims will be paid out in a timely manner.
A third party Monitor, Mr. Gordon McFee, will be appointed to provide outside oversight of the administration process and to make recommendations to the administrator to ensure the efficient and fair processing of the claims. Mr. McFee’s role, among other things, will permit possible problems to be resolved early in the process.
ESDC will provide notice of the settlement, opt out process, and claims process to the class in accordance with the Notice Plan and will administer the claims process in accordance with the Administration Plan. ESDC will develop guidelines and provide training to the officers who will administer the claims. The Defendants will pay all amounts and taxes for the notice and for the Administration process and for the appointment of the Monitor.
ESDC will send up to three reminders during the claims process to Class Members who have been identified and who have not submitted claims.
Class Members who are denied their claim may seek a review of the decision by a designated Prothonotary of the Federal Court. The Class Member may submit a form (which is attached to the Order approving the Settlement Agreement) to seek review and both the Class Member and ESDC will have an opportunity to make brief written submissions. The Prothonotary’s decision will be final.
The Administrator will provide periodic reports to Class Counsel and the Monitor. The Monitor and the Administrator will provide final reports to the Court on the results of the claims administration process.
The settlement is without any admission of liability.
The Court retains jurisdiction until the claims are administered.
[27] In addition, the Plaintiff’s Fresh as Amended Statement of Claim will be approved, which among other changes reflects the causes of action that were certified. The definition of the Class is also amended to include those who became ill while on maternity leave where that illness continued into the parental leave and benefits period and to include those who were in receipt of benefits under the analogous legislation in Quebec.
[28] The total amount of the settlement is estimated to be between $8.5 and $11 million. It is estimated that there are 1880 potential Class Members of which 1738 are deemed to be eligible because they have already been identified by ESDC. Another 142 possible Class Members have been identified, including those that will fall within the expanded definition of the Class.
[29] The Settlement Agreement also proposes that Class Counsel receive their legal fees and disbursements in the amount of $2,212,389, together with applicable taxes (GST and HST) thereon, not to exceed $2.5 million in total. The legal fees will be paid by the Defendant in addition to and separately from the compensation paid to eligible Class Members.
III. The Issues
[30] There are three issues to address:
Should the Court approve the Settlement Agreement? This entails consideration of whether the agreement is fair, reasonable and in the best interests of the class.
Should the Court approve an honorarium of $10,000 to Ms. McCrea as the representative plaintiff?
Should the Court approve the fee agreement for Class Counsel? The Court considers whether the amount of the legal fees and disbursements is fair and reasonable and should be approved only after determining whether to approve the proposed Settlement Agreement for the Class Members.
IV. Principles from the Jurisprudence Regarding Approval of Settlement Agreements
[31] Rule 334.29 of the Rules provides:
334.29 (1) A class proceeding may be settled only with the approval of a judge.
334.29 (1) Le règlement d’un recours collectif ne prend effet que s’il est approuvé par un juge.
(2) On approval, a settlement binds every class or subclass member who has not opted out of or been excluded from the class proceeding.
(2) Il lie alors tous les membres du groupe ou du sous-groupe, selon le cas, à l’exception de ceux exclus du recours collectif.
[32] Several recent cases have canvassed the principles that apply to the approval of a settlement in a class action and the principles are not in dispute. For example, Manuge v Canada, 2013 FC 341, [2014] 4 FCR 67 [Manuge]; Condon v Canada, 2018 FC 522, 293 ACWS (3d) 697 [Condon]; Riddle v Canada; 2018 FC 641, 296 ACWS (3d) 36, and Merlo v Canada, 2017 FC 533, [2017] FCJ No 773 (QL) [Merlo] have been cited by the Plaintiff and Defendant.
[33] As the parties note, the test for the approval of a settlement agreement has been stated in slightly different words in recent cases. While the basic test remains the same and is not in dispute, the relevant factors which inform the test may differ between cases and carry varying degrees of weight (Condon at para 20).
[34] The recent jurisprudence in this Court has been consistent in articulating the test. In Merlo, Justice McDonald noted at para 16, “[o]n approving a settlement, the test to be applied ‘is whether the settlement is fair and reasonable and in the best interests of the class as a whole ’” (citations omitted).
[35] In Condon, Justice Gagné provided an overview of the principles regarding the approval of a settlement in a class action and the factors to consider at paras 17-19:
[17] The test for approving a class action settlement is whether, in all of the circumstances, the settlement is fair, reasonable and in the best interests of the Class as a whole, taking into account the claims and defences in the litigation and any objections to the settlement by class members. However, the test is not whether the settlement meets the demands of a particular class member.
[18] A settlement need not be perfect (Châteauneuf v Canada, 2006 FC 286 at para 7). It need only fall “within a zone or range of reasonableness” (Ontario New Home Warranty Program v Chevron Chemical Company (1999), 46 OR (3d) 130 (Ont Sup Ct J) at para 89).
[19] In determining whether to approve a settlement, the Court may take into account factors such as:
1. The likelihood of recovery or likelihood of success;
2. The amount and nature of discovery, evidence or investigation;
3. Terms and conditions of the proposed settlement;
4. The future expense and likely duration of litigation;
5. The recommendation of neutral parties, if any;
6. The number of objectors and nature of objections;
7. The presence of arm’s length bargaining and the absence of collusion;
8. The information conveying to the Court the dynamics of, and the positions taken, by the parties during the negotiations;
9. The degree and nature of communications by counsel and the representative plaintiffs with class members during the litigation; and
10. The recommendation and experience of counsel.
(See Ford v F Hoffmann-La Roche Ltd (2005), 74 OR 3d 758 (Ont Sup Ct J) (QL) at para 117.)
V. The Settlement Agreement
[36] The Court has considered all the relevant factors. As noted by both the Plaintiff and the Defendant, the most relevant considerations are the likelihood of recovery and success and the settlement terms and conditions.
A. The likelihood of recovery if the action proceeded to trial
[37] The action claimed several causes of action, including negligence, against the Defendant with respect to how the EI Commission implemented the 2002 amendments to the Act. The Plaintiff notes that despite their intention to establish negligence, there would have been several hurdles, including establishing a duty of care and proving that it was not met. For example, both parties note that the majority of the decisions of the EI Umpires relied on a strict or literal interpretation of section 18. This would have posed an obstacle to establishing negligence in the administration of the amendments.
[38] The Plaintiff also sought general damages, including for inconvenience and mental distress related to the pursuit and denial of claims. The Plaintiff acknowledges that there was a substantial likelihood that general damages would not have been awarded at trial. This is due in part to the current state of the law regarding general damages for this kind of anxiety and frustration and to the difficulty in establishing the criteria for general damages for mental distress as set out in Fidler v Sun Life Assurance Co. of Canada, 2006 SCC 30, [2006] 2 SCR 3.
[39] The Defendant agrees that this is a novel case which raises complex issues involving a comprehensive statutory benefit scheme. The Defendant notes that the Courts have not yet recognized a duty of care related to the implementation of statutory provisions, as claimed by the Plaintiff. The Plaintiff would first need to establish that such a duty exists and then prove a breach of the duty, both of which would be challenging and would require a voluminous record, witness testimony and novel legal arguments. The Defendant adds that the entitlement to and quantification of general damages would pose similar challenges.
[40] The Plaintiff and Defendant acknowledge that if general damages could be sought, each Class Member would have to establish their individual claim, which would pose significant challenges. In the event that the Plaintiff succeeded at trial, individual trials would have been required to determine whether each Class Member had met the test for general damages and whether the statutory limitation period barred their claim.
[41] The success of this litigation could not be predicted with any certainty. Continuing the litigation would have required considerable time, effort and resources which may not have been warranted by the risk. Even if negligence or the other causes of action were found, the nature of the damages claimed would not be easily established. Despite the natural inclination to root for a fair and equitable result to address a seemingly unfair or illogical situation caused by the provisions of the Act, the Court’s focus would be on the legal issues, which are complicated. As noted by the parties, they each knew the issues and the strengths and weaknesses of their case and used their knowledge in a collaborative way to reach this settlement.
B. The amount and nature of discovery evidence
[42] The record before the Court is voluminous and permits the Court to determine that the Settlement Agreement is fair and reasonable. The Record includes the past decisions of the Court with respect to the Rule 220 motion and the Certification motion. The Record also includes several affidavits, including affidavits prepared for the approval of the Notice to the Class; the affidavit of Mr. Michael Wright, the managing partner of the Class Counsel’s firm, Cavalluzzo LLP, which details the history of the litigation; the affidavit of Ms. Manon Courcelle, Manager of Employment Insurance Business Services, Transformation and Integrated Service Management Branch at Service Canada, which details the work undertaken by ESDC to identify Class Members and to prepare for the administration of the settlement; and the affidavits of Ms. McCrea.
[43] Although the litigation did not proceed to the discovery stage, the evidence before the Court provides a comprehensive background, demonstrating the issues at stake and the efforts of the parties to reach a fair settlement. The Plaintiff and Defendant both acknowledged each other’s full understanding of the EI regime, the issues and the strengths and weaknesses of their positions.
C. The terms and conditions of the settlement
[44] The terms and conditions of the settlement are outlined above. The parties agree that the terms were carefully crafted by both parties to ensure fair compensation, a timely administrative process and other safeguards to ensure that the interests of the class are protected.
[45] The terms and conditions of the settlement are outlined above. The parties agree that the terms were carefully crafted by both parties to ensure fair compensation, a timely administrative process and other safeguards to ensure that the interests of the class are protected.
[46] The highlights include that the eligible Class Members who submit valid claims will be paid 100% of the amount they would have received had their claim been approved when they requested to convert their parental benefits to sickness benefits. The costs of the administration of the claims, the Monitor fees and Class Counsel’s fees and disbursements will be paid separately by the Defendant. In other words, these costs will not cut into the amount to be paid to Class Members. The Claims process is designed to be simple and efficient. The evidentiary threshold to establish a claim is relatively low and Class Counsel will provide assistance to Class Members with their claims. ESDC has established a dedicated team to determine the claims and an internal review process for claims that may be denied. In addition, denied claims will be independently reviewed, on application by the claimant, by a Prothonotary of this Court, as an additional safeguard.
[47] Although the Class Members will not receive general damages as originally sought, they will receive the full amount that they would have received at the time they sought to convert their parental benefits to sickness benefits.
[48] Class Members will not receive interest. However, any award of interest following trial would be discretionary. The Court notes that in the relevant period, interest rates were low. The Plaintiff and Defendant both agree that the settlement, which provides 100% of the amount that the claimant would have received at the time of the illness, but without interest, remains a fair amount given the other attributes of this Settlement Agreement.
[49] Other beneficial features of the agreement offset what has been abandoned and must be considered. Timely payments are promised to class members who need only submit a simple form, without the need for documentary proof or testimony. As noted above, 1738 claimants are deemed to be eligible Class Members as they are already known to ESDC. Another 138 persons may be Class Members. ESDC has done extensive preparatory work, including identifying and contacting Class Members, which should pave the way for a streamlined and prompt payment process.
[50] Other non-monetary features of the Settlement Agreement also enhance its benefit to Class Members. Notably, the definition of the Class is amended to capture all claimants who applied for and were denied benefits for sickness during their EI “parental window”. This will include those who became ill while on maternity leave and continued to be ill while on parental leave, to permit them to claim the weeks of illness while on parental leave as sickness benefits. The expanded definition was a point of dispute, but was ultimately negotiated and included in the Settlement Agreement.
[51] The appointment of a third party Monitor to assist in identifying any systemic issues that may arise and to make recommendations to the Administrator to address any such issues, will add to the efficiency of the claims process. The proposed monitor, Mr. McFee, is a retired senior Public Servant with extensive experience and knowledge of social benefits schemes, including EI. Mr. McFee was the former Director of Policy and Legislative Development and former Director of EI Appeals. However, his role now is independent from ESDC. Both parties strongly support Mr. McFee as Monitor.
[52] The review process for disputed claims is also designed to be simple and to bring finality. A claimant who is denied compensation may seek a review by a Prothonotary of the Federal Court. The Prothonotary will review the claim based on the same documents or record provided to ESDC, along with the submissions of the claimant and ESDC. The Prothonotary will either confirm the ESDC decision or send the claim back to ESDC for redetermination. The Prothonotary’s determination of the disputed claim will be a final determination, not subject to further review or appeal. This process is designed to ensure that there is an additional level of independent review.
[53] Class Members will be assisted by Class Counsel during the claims process if necessary. There is no need for the Class Members to engage or pay other counsel. Class Members who seek a review by a Prothonotary of a denied claim will also be assisted by Class Counsel.
[54] The Monitor and the Administrator will provide final reports to the Court after the administration period. The Court will retain jurisdiction over this Action until all the claims submitted in accordance with the Settlement Agreement have been determined.
[55] The take up rate for this settlement is anticipated to be high. The file review undertaken by ESDC to identify eligible claimants has resulted in 1738 claimants being deemed eligible. The multi-faceted Notice Plan, which includes Facebook, Twitter, the Government of Canada website, ads in major newspapers, and the toll-free phone line and website established by Class Counsel, has reached many Class Members. Further outreach will continue as the second phase of the Notice Plan is implemented and reminders are sent throughout the administration of the agreement.
[56] It is also noted that to date, 106 letters of support for the Settlement Agreement have been received.
D. The Risks of not Approving the Settlement
[57] In the event that the Settlement Agreement is not approved, Class Members who pursued the litigation would incur expenses and further periods of uncertainty, perhaps up to three years. A discovery process, lengthy trial, and possible appeal would prolong the determination of an uncertain outcome.
[58] Moreover, the Plaintiff and the Class would be bound by the original Statement of Claim and the original definition of the Class. As such, some Class Members who will benefit from this Settlement Agreement would not benefit from the litigation even if it were ultimately successful. Similarly, the estate of any deceased claimant would not benefit from ongoing litigation.
E. Communications with Class Members
[59] Since this litigation commenced in 2012, Class Counsel have maintained a website, a toll-free phone line and a Facebook page to provide information to potential Class Members about the status of the litigation. More recently, the website and Facebook page have communicated the Notice to the Class Members of the terms and conditions of the proposed settlement, how to convey support or to object and how to participate in the hearing of this motion, among other information. Class Counsel sent emails to all Class Members who had registered with them advising of the proposed Settlement Agreement. Class Counsel reports that their website has been viewed by over 5300 users and that they have received more than 240 calls.
[60] In addition, the Notice of the Proposed Settlement was posted on the Government of Canada website in September 2018 and was published in major Canadian newspapers.
F. Support for the Agreement; The Views of Class Members
[61] Class Counsel received 106 letters and emails of support in response to the Notice of the proposed settlement. A potential Class Member, T.R., also spoke in support of the proposal at the hearing of the motion to approve the proposed settlement.
[62] The overall sentiment expressed in the letters was strong support for the settlement. Many Class Members wrote in detail about becoming sick while on leave, some very seriously, and described the significant challenges, pain and fear their illnesses injected into what had been expected to be a happy time in their lives. Class Members explained how being denied sickness benefits affected them and their families by exacerbating financial and emotional stresses and requiring them to make difficult choices about their work and health. Several Class Members communicated intense frustration that they had been denied benefits and relief that they might now see that money.
[63] S.D. wrote:
I believe the settlement offered at this point in time is sufficient and reasonable form of compensation for my loss… At the time of denial I felt pressure to return to work and the decision made by EI employees forced me to return to work on a part time basis which was not enough time for me to recover fully and I actually ended up having to quit my job that I had been an employee of for 15 years and so I do feel that the settlement will help me feel that some form of justice is and will be served after such a stressful experience at the time.
[64] S.B. wrote:
Now with this Class Action I feel that my voice can be heard, that perhaps some restitution can be made and that there are others out there who deserve the same consideration.
[65] T.H. wrote:
I would like to extend my sincerest thank you to Jennifer McCrea for having the courage and determination to put forth the energy to show what is right and just. Thank you… Support is everything. Support when needed is everything. This is why I support this class action suit. This needs to be corrected.
[66] At the settlement approval hearing, T.R spoke about her experience of being denied EI sickness benefits while on parental leave. T.R. described the physical and emotional strain created by her long-term illness and the great difficulty it presented for her family. She was unable to return to work when she had planned but was denied sickness benefits. The denial caused enormous financial stress. T.R. told the Court that she was livid and heartbroken but did not have the energy to continue to challenge the denial at the time. She expressed gratitude towards the women who began this action and offered her support for the Settlement Agreement because she wants the sickness benefits to be given to the people who should have received them.
[67] In Ms. McCrea’s affidavit, she expressed the belief that the Settlement Agreement is fair and reasonable for the Class, considering the risks and delays associated with continuing the litigation. In particular, she noted that the proposed settlement provides for a simple application process and recovery of the full amount of the EI benefits that Class Members would have received. She said that non-recovery of interest is a small concession, representing a reasonable balance.
[68] Some Class Members noted with concern that the Settlement Agreement does not provide damages for mental distress. For example, D.D. sent a letter stating that she supports payments being made, but she disagrees with the settlement amount. She noted that the proposal does not include interest or compensation for pain and suffering, which she believes should be considered. D.D. described her fight with cancer and the financial impact of being denied benefits. She wrote:
I was forced to work via lack of monetary support by an employment insurance program I had paid into for ten years prior to my diagnosis. I risked my life for nearly a full year after I returned, and I was not declared “cured” for another 4 after that. Certainly this must be considered.
[69] T.R. also stated before the Court her hope that emotional costs be considered for compensation.
[70] In Ms. McCrea’s affidavit, she noted that there is a substantial likelihood that damages for inconvenience and mental distress would not have been awarded after trial. She also acknowledged that Class Members would have had a significant burden to provide individual evidence justifying such recovery. Ms. McCrea believes that a significant portion of the potential recovery is achieved in the Settlement Agreement.
[71] While some Class Members expressed concern about the settlement amount, the great majority of those who expressed views regard the proposed settlement favourably.
G. Objections to the Settlement Agreement
[72] Only five written objections were received, which represents approximately 0.2 % of the estimated Class Members. The written objections filed do not reveal the reason for the objection. For example, one objector stated that “it does not apply to me,” and another, that she “[does not] want to fight for this”. The cryptic nature of the objections suggests that the objectors did not fully understand the terms of the Settlement Agreement, including that they did not have to do anything more to make a claim. Objectors may choose to opt out of the litigation and could pursue their own actions. However, if they do not opt out, they will be bound by the settlement whether they make a claim or not.
[73] The Court’s focus is on the reasonableness and fairness of the settlement for the class as a whole. A few dissatisfied or misinformed Class Members should not derail an agreement that is otherwise well supported and reasonable when all relevant factors are taken into account
H. Good Faith
[74] The Plaintiff and Defendant commended each other for their conduct in advocating for their respective positions in an assertive yet respectful and collegial manner, and in their approach to the negotiation of the settlement. Although the settlement discussions remain privileged, each party acknowledged the other’s skill and advocacy coupled with the good faith demonstrated throughout the process.
[75] Of note, ESDC undertook an extensive File Review Project to identify all potential Class Members and to contact them directly and indirectly through public and social media campaigns. The fea