McCrea v. Canada (Attorney General)

McCrea v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2015-05-07
Neutral citation
2015 FC 592
File numbers
T-210-12
Decision Content
Date: 20150507
Docket: T-210-12
Citation: 2015 FC 592
Ottawa, Ontario, May 7, 2015
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
JENNIFER MCCREA
Plaintiff
and
THE ATTORNEY GENERAL OF
CANADA AND THE
CANADA
EMPLOYMENT INSURANCE COMMISSION
Defendants
ORDER AND REASONS
[1] This is a motion brought by Jennifer McCrea [plaintiff] to certify an action as a class proceeding in accordance with Rule 334.16 of the Federal Courts Rules, SOR/98-106 [Rules] against Her Majesty the Queen [defendant], named as representative of the Canada Employment Insurance Commission [Commission], Service Canada and the Minister of Employment and Social Development Canada [Minister or ESDC], formerly the Minister of Human Resources and Skill Development [HRSDC]. The Commission is responsible for the oversight of the Employment Insurance Program and reports to Parliament annually. On behalf of the Commission, ESDC and Service Canada carry on the administration and management of the Employment Insurance Act, SC 1996, c 23 [EI Act or Act], which provides benefits to eligible claimants, for example, those who have lost their employment or who are away from their workplace or employment on maternity or parental leave or due to illness or caring for critically ill children.
Table of Contents
Overview 4
The Plaintiff's Overall Position 7
The Defendant's Overall Position 14
Relevant Statutory Provisions 19
The Issues 24
Do the Pleadings Disclose Reasonable Causes of Action? Rule 334.16(1) (a) 25
Overarching Issues 25
The Plaintiff's Submissions 26
The Defendant's Submissions 29
Conclusions of law cannot be pleaded 30
The statute was interpreted correctly 31
No cause of action for breach of statute 34
Conclusion on Overarching Issues Regarding the Cause of Action 35
This is not simply a claim for benefits 38
The conclusion of law relied on by the plaintiff is not incapable of proof 39
The statute is not unambiguous 42
The plaintiff does not plead breach of a statute 46
Negligence and Negligent Misrepresentation 47
The Plaintiff's Submissions 47
The Defendant's Submissions 55
It is not plain and obvious that the cause of action in negligence has no reasonable prospect of success 58
The plaintiff's claim for negligent misrepresentation has no reasonable prospect of success 67
Misfeasance in Public Office 70
The Plaintiff's Submissions 70
The Defendant's Submissions 71
It is plain and obvious the claim for misfeasance in public office has no reasonable prospect of success 73
Unjust Enrichment 78
The Plaintiff's Submissions 78
The Defendant's Submissions 79
It is plain and obvious that the claim for unjust enrichment has no reasonable prospect of success 81
The Claim for Damages 83
The Plaintiff's Submissions 83
The Defendant's Submissions 84
The claim for and scope of the damages should be addressed at trial 85
Have the Remaining Tests for Certification Been Met? Rule 334.16(1)(b)-(e) 86
Is there an Identifiable class of two or more persons? Rule 334.16(1) (b) 87
The Plaintiff's Submissions 87
The Defendant's Submissions 91
An identifiable class exists for Category 1 95
Do the claims raise common questions of law or fact? Rule 334.16(1) (c) 98
The Plaintiff's Submissions 98
The Defendant's Submissions 101
The plaintiff has established common issues 103
The common issues to be certified 108
Is a class proceeding the preferable procedure for the just and efficient resolution of common questions? Rule 334.16(1) (d) 112
The Plaintiff's Submissions 113
The Defendant's Submissions 117
The Class Proceeding is the preferable procedure 120
Is Ms McCrea an appropriate representative plaintiff? (Rule 334.16(1) (e) 125
The Plaintiff’s Submissions 125
The Defendant’s Submissions 127
Ms McCrea is a proper representative plaintiff for Category 1 128
Conclusion 131
Overview
[2] The background to this action was previously described in McCrea v
Canada
(Attorney General), 2013 FC 1278 [McCrea 2013] and is repeated and elaborated on below.
[3] The plaintiff, Ms McCrea, proposes to represent others who, like herself, were contributors to the EI program, gave birth to a child, and were in receipt of parental benefits. Some EI recipients became ill, applied to convert their parental benefits to sickness benefits during the period of illness, and were denied the sickness benefits. Other EI recipients who became ill were advised by representatives of the Commission or Service Canada that they were ineligible for the benefits and, therefore, did not apply to convert their parental benefits to sickness benefits. The plaintiff asserts that claimants were denied sickness benefits because of the strict interpretation of paragraph 18(b) of the Act, as it read at the relevant time, which required that the claimant be otherwise available for work. Claimants already on maternity or parental leave, caring for a child and receiving benefits, were considered not to be available for work. The plaintiff submits that the wording of paragraph 18(b) makes it impossible for such claimants to receive the sickness benefits to which they are entitled and to which the 2002 amendments intended that they be entitled. The plaintiff points out 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. This would have been followed by their maternity and parental benefits after the birth of their child.
[4] The plaintiff notes that the Act was amended in 2002 as Part 3 of the Budget Implementation Act, 2001, SC 2002, c 9 [formerly Bill C-49] 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 [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 and/or parental leave period.
[5] The plaintiff claims 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 therefore claims that the Act was not implemented as intended.
[6] The plaintiff notes that many of those denied sickness benefits appealed their decisions to the Board of Referees and some also appealed to the EI Umpire. Although the majority of the claimants were unsuccessful, two (Ms Rougas and Ms Kittmer) were successful before the EI Umpire.
[7] On March 24, 2013, amendments to the Act included in former Bill C-44 (Helping Families in Need Act, SC 2012, c 27) came into force. Claimants after that date (i.e. those EI recipients who became ill and applied to convert their benefits to sickness benefits) are eligible to extend their benefits by up to 15 weeks assuming that the other criteria for eligibility are met. This amendment ensures that claimants after March 24, 2013, in similar circumstances to the plaintiff and proposed class members will not be denied sickness benefits due to their unavailability for work.
[8] The plaintiff seeks certification of this proposed class action and $450 million in damages for negligence, negligent misstatement, misfeasance in public office, and unjust enrichment. The action is limited to the period starting on March 3, 2002, the date of the coming into force of amendments to the Act included in the former Bill C-49 (the Budget Implementation Act, 2001, SC 2002, c 9) [referred to as the 2002 amendments] and ending on March 24, 2013, the date of the coming into force of amendments to the Act enacted by the former Bill C-44 (Helping Families in Need Act, SC 2012, c 27). Among other amendments to the Act, the Helping Families in Need Act amended one of the key provisions at issue in the proposed class action, section 18, to provide that those in receipt of parental benefits under section 23 were not disentitled to sickness benefits due to their unavailability for work.
[9] The defendant strongly opposes this class action. The defendant argues that it is plain and obvious that the causes of action pleaded have no reasonable prospect of success and also disputes every other aspect of the test to determine whether the action should be certified as a class action.
[10] The plaintiff and defendant have advanced arguments with respect to each aspect of the test for certification, and many of the same arguments arise with respect to more than one aspect of the test. As a result, there is a considerable amount of repetition in the reasons as each argument is analyzed.
[11] For the reasons that follow, and in accordance with the findings made, I will grant the motion for certification and certify the action, in part, as a class proceeding. The cause of action in negligence and some common questions which arise from that cause of action are certified. Ms McCrea is an appropriate representative plaintiff for Category 1 class members. The Litigation Plan is approved as an interim plan. A revised Litigation Plan will be required to reflect the cause of action and common questions certified and the management of the litigation.
[12] I will also grant the defendant's motion to strike the plaintiff's amended statement of claim, in part. The causes of action for negligent misrepresentation, unjust enrichment and misfeasance in public office are struck as they have no reasonable prospect of success.
The Plaintiff's Overall Position
[13] The plaintiff submits that the proposed class action meets the threshold for certification. In the Amended Statement of Claim (the amendment was to remove Ms Kasbohm as a plaintiff and make consequential grammatical changes) [Claim], the Plaintiff pleads that Parliament amended the Employment Insurance Act, SC 1996, c 23 in 2002 to permit persons in receipt of EI parental benefits to claim EI sickness benefits. The plaintiff claims that, although the defendant took several positive steps to implement these amendments, they did not do enough and, due to their negligent and other tortious conduct, some of the amendments were not properly interpreted, implemented or administered. As a result, EI sickness benefit claims were denied and Commission representatives advised some claimants that their claims would not succeed and so they did not apply. All of the denials and representations are claimed to result from the same error concerning the right of claimants to collect EI sickness benefits during a parental leave.
[14] The plaintiff submits that the Claim discloses reasonable causes of action.
[15] The plaintiff pleads causes of action in negligence, negligent misrepresentation, misfeasance in public office, and unjust enrichment. The plaintiff seeks compensable damages and general damages for inconvenience, loss of time, frustration, anxiety, mental distress and emotional upset arising from the quest for the EI sickness benefits.
[16] With respect to the other aspects of the test for certification, the plaintiff notes that the threshold is low. The plaintiff submits that the Claim sets out clear and objective criteria for defining who is a class member. The Claim raises several common issues, leaving only a few issues, the majority of which are straight forward, to be litigated individually. The class proceeding is the preferable procedure as there are no alternatives that could provide real access to justice and Ms McCrea is an appropriate class representative.
[17] The plaintiff proposes objective criteria to define the class members. The class members, during the class period (March 3, 2002-March 24, 2013), were in receipt of EI parental benefits and suffered from an illness, injury or quarantine during that parental leave. They either applied for EI sickness benefits and were denied [Category 1] or inquired about sickness benefits and were advised by the defendants that they would not qualify, relied on that advice and did not apply for EI sickness benefits [Category 2]. The plaintiff notes that the majority of the class members were women, although parental benefits are also available to men.
[18] The Claim describes Ms McCrea's situation and that of Ms Kasbohm as typical or similar to many others; the women were pregnant, gave birth, went on EI parental leave, became ill during this leave, and sought to convert their claim to EI sickness benefits. Their experiences with the claims process were almost identical, as were the results of that process.
[19] The plaintiff's Claim sets out the history of the EI Act, including the impact of the McAllister-Windsor decision, the 2002 amendments, and various statements made about the purpose of the 2002 amendments. It also describes how the Department, Commission and Service Canada, on behalf of ESDC (formerly HRSDC) and the Government administered the Act and adjudicated claims.
[20] The plaintiff claims that following the 2002 amendments, the defendant took some positive steps to implement them, but did not properly implement the amendments regarding sickness benefits for claimants on parental leave. The plaintiff describes the defendant's actions as a "top down" and systemic failure which prevented claimants from receiving the benefit of the 2002 amendments.
[21] The plaintiff alleges that the defendant's failure included: inadequate staff training; outdated and inaccurate reference materials for adjudicative purposes; an outdated or inaccurate public website; and the failure to update the key "Digest of Benefit Entitlement Principles" guidance document.
[22] The plaintiff notes that the website information available to the public misrepresented the amendments and included inaccurate information; for example, that sickness benefits would be available after a parental benefit claim, when that would be impossible or highly unlikely because the requisite number of hours of insurable earnings would not be sufficient. The plaintiff also asserts that the 2002 amendments were touted (by Members of Parliament and by Minister McCallum who was responsible for the Budget Implementation Act) to be for the purpose of providing EI sickness benefits to claimants "during" their parental leave.
[23] The Plaintiff contends that there was a consistent pattern of denials of sickness claims to those similarly situated to Ms McCrea, and in particular, Ms Kasbohm and Ms Rougas. As described above, the claimants were on parental leave, caring for an infant and became ill, some very seriously. The claimants contacted Service Canada, which is responsible for administering the Act, to inquire about sickness benefits. In the case of Ms McCrea, Ms Rougas and Ms Kasbohm, at least one employee initially advised them that they could convert their parental claims to sickness claims at some later point. However, when the claimants made their applications, the conversion was denied because the claimants were not otherwise available for work because they were on parental leave.
[24] The plaintiff notes that the process was the same for these three claimants and for all those seeking conversion and began with the initial claim for maternity and parental benefits. The forms include a page entitled "Rights and Responsibilities" which describes how the "right to receive [EI] benefits is a shared responsibility between Service Canada and [the claimant]". The stated responsibilities of Service Canada include that it must: "advise you of the programs and services available to you"; establish a claim for benefits, if qualifying conditions are met; and, "give you accurate information about your claim". The claimants' undertakings include to accurately report all periods of incapacity, provide required information and documents and report all employment. Claimants sign or otherwise acknowledge on the online form that they have read and understand the Rights and Responsibilities.
[25] The plaintiff alleges that the Commission and Service Canada have not met their responsibilities.
[26] With respect to the process that led to the denial of benefits, the plaintiff outlines that upon inquiring about sickness benefits, Service Canada opened a "conversion to sickness" form which gathers information from the claimant. This form asks: "[i]f not for your illness, would you be available for and capable of work?" The form also refers to the need for the claimant to provide proof of "inability to work".
[27] The plaintiff adds that the Commission orchestrated the appeal process by providing only the specific provision, paragraph 18(b), to the Umpire rather than the overall context of the 2002 amendments to the Act. Given that most claimants were unrepresented and did not make the efforts that Ms Rougas made to highlight the inconsistency in the Act, the appeals consistently resulted in failure to provide sickness benefits to Class Members.
[28] The plaintiff's record reveals, and it is not disputed, that out of 124 appeals taken by claimants to the Board of Referees and/or Umpire, only four were successful. Ms Rougas, who was successful in the matter of the Employment Insurance Act and Natalya Rougas, CUB 77039, June 30, 2011 [Rougas], was represented by Counsel, unlike the vast majority of other claimants, and fully argued her appeal, provided documents obtained pursuant to Access to Information and Privacy [ATIP] requests, and raised the issue of the interpretation of paragraph 18(b) within the context of the Act as a whole.
[29] The plaintiff states that the record supports her pleadings; the defendants failed to properly implement the amendments and the required forms and documents focused the attention on the requirement to be available for work, consistently leading to denial of claims on the basis of non-availability.
[30] The plaintiff disputes the defendant's argument that there is no commonality among the class members because there were independent interactions between the claimants and the EI Commission, different people may have been told different things, and officers of Service Canada and the Commission may not have relied on the same materials. The plaintiff argues that this ignores the claim; all officers and agents were trained in the same way and followed the same guides and used the same forms. The Class Members had common circumstances, followed the same process, and had the same experience and the same results.
[31] The plaintiff estimates the possible number of claimants that may have been denied sickness leave benefits with reference to the affidavit of the defendant's witness, Mr Michael Duffy, a recently retired senior official at ESDC. Mr Duffy's information revealed that from 2002 to 2011, 3,177 claimants who applied for EI sickness benefits were denied due to non-availability for work (and this estimate does not include
Quebec
parental insurance claimants for the period 2006-2011).
[32] There is no reliable information regarding the number of claimants who were dissuaded from applying for sickness benefits based on advice from the Commission. However, the plaintiff points out that at the time of the amendments in 2013, the Government publicly stated that an estimated 6,000 persons each year would benefit. The record indicates how that figure was estimated using several sources of data and several assumptions. The plaintiff suggests that the difference between 6,000 future beneficiaries each year and the 3,177 claimants denied from 2002-2011 provides some indication of the number of claimants who would have been dissuaded from applying for conversion of their benefits.
[33] The plaintiff also notes that in the aftermath of the Rougas decision, the defendant did not seek judicial review of the Umpire's decision and then paid Ms Rougas her sickness benefits.
[34] Other claimants who had appealed the decision of the Commission to deny their sickness benefit claims either to the Board of Referees or the Umpire were also paid the sickness benefits to which they were entitled. The defendant's witness, Mr Michael Duffy, in cross-examination, explained that the Government did not contest the appeals and, therefore, had the authority to pay the benefits it would otherwise not have had the authority to pay.
[35] Mr Duffy agreed that the data indicates that from 2003-2011, an average of 330 "D 33" letters, which indicates denial of sickness benefits to claimants on parental leave, were issued each year. However, in 2012 that number dropped to 52 and in 2013, to zero. The plaintiff suggests that this indicates the number of claimants who were paid their sickness benefits.
[36] Mr Duffy acknowledged that after the Rougas decision a policy was put in place to allow appeals of denied benefits to either the Board of Referees or the Umpire to proceed uncontested. However, this approach did not provide any benefits to Ms McCrea or other class members. Ms McCrea was denied in September 2011, after the Rougas decision and the defendant's decision not to seek judicial review of that decision. Ms McCrea launched an appeal, but subsequently requested to adjourn that appeal in December 2011.
[37] In summary, the plaintiff pleads that as a result of the defendant's actions and their negligence, she and other class members were improperly denied their sickness claims or were dissuaded from making a claim and, as a result, suffered damages.
The Defendant's Overall Position
[38] The defendant submits that none of the elements of the test for certification have been met. First and foremost, the defendant argues that it is plain and obvious that the plaintiff's claim does not disclose any cause of action.
[39] The defendant characterizes the plaintiff's claim as one of conspiracy on the part of the Department and the Commission to deny benefits to claimants by misinterpreting and misapplying the provisions of the Act from 2002 to 2013.
[40] The defendant submits that the claim for $450 million in compensatory and general damages is grossly exaggerated, and the general damages claimed are afterthoughts. The defendant argues that the plaintiff has "dressed up" her action in tort and equity, but the essential character of the claim is simply for Employment Insurance benefits. The plaintiff and others should pursue administrative appeals if these remedies are not barred by res judicata or limitation periods.
[41] The defendant further submits that the plaintiff's stated cause of action – that the defendant "negligently administered and failed to implement the EI Act" – is not a recognized cause of action.
[42] The defendant submits that the Act was unambiguous and the Commission/Service Canada interpreted and applied the Act correctly and this correct interpretation was confirmed by the majority of decisions of the EI Umpire.
[43] The defendant suggests that the plaintiff relies on a single Umpire ruling (Rougas) to support her view that, rather than follow the law as enacted, the defendant should have ignored the clear words of paragraph 18(b). However, Umpire decisions are not binding and cannot support the plaintiff's theory.
[44] The defendant characterizes the Rougas decision as a specific response to that specific case because the Umpire did not agree with the rigid application of the Act and sought to provide benefits despite the clear language and despite lacking jurisdiction to do so. The Umpire read the words, "[n]otwithstanding the provisions of s. 18" into section 23 in order to craft a remedy. In the alternative, the Umpire held that Parliament should amend the legislation. The defendant points out that the Rougas decision was contrary to decisions of the Commission, the Board of Referees and Umpires between 2002 and 2011.
[45] The defendant acknowledges that Rougas was the catalyst for the 2013 amendments to the Act which exempt those in receipt of parental benefits from having to satisfy the availability for work requirement of paragraph 18(b). The defendant also suggests that the Rougas decision was the catalyst for the plaintiff's action. The defendant acknowledges that it did not appeal the Rougas decision but argues, nonetheless, that the Umpire had no jurisdiction to read words into the Act.
[46] Of note, after the Rougas decision, the Commission paid out sickness benefits to other claimants on parental leave who had previously been denied. These benefits were paid prior to the 2013 amendments.
[47] Ms McCrea and the other members of the proposed class were not in the group of claimants who were paid their sickness benefits after the Rougas decision. Ms McCrea was denied benefits in September 2011 and sought to appeal that decision, but later requested that her appeal be adjourned.
[48] The defendant submits that the principles of statutory interpretation – particularly the plain meaning rule – support the Commission's interpretation of paragraph 18(b). Simply put, the Commission had no choice but to apply paragraph 18(b) and deny benefits to those not otherwise available for work.
[49] The defendant's position is that the 2002 amendments were intended only to respond to the McAllister-Windsor decision which found that the anti-stacking provisions were discriminatory. That decision was not about sickness benefits arising after the birth of the child or while the claimant was on maternity or parental leave. The 2002 amendments did not amend paragraph 18(b) and the requirement for the claimant to be otherwise available for work remained in the Act and was correctly applied by the EI Commission and Service Canada.
[50] The defendant characterizes this action as a "dressed up" claim for benefits rather than an action in tort and argues that when viewed as such, the current action cannot proceed for several reasons, including that it is barred by res judicata or issue estoppel. The defendant argues that the proper remedy would be to pursue the appeals established in the Act and ultimately judicial review, although the limitation period to do so may preclude this remedy. For those who were advised not to apply to convert their benefits to sickness benefits, the proper approach would be to request to file a late claim, referred to as antedating, await a decision, and seek to appeal to the now created Social Security Claims Tribunal if denied. The defendant's submissions with respect to the other elements of the test for certification take the same approach; that this is only a claim for benefits.
[51] The defendant also submits that the plaintiff's own claim has no merit and, therefore, it cannot be the basis of the proposed class action, given that there are no material facts to support the causes of action and the plaintiff suffered no damages. Where an individual claim cannot succeed, the same claim cannot be repackaged as a class action.
[52] The defendant takes the position that the plaintiff has not satisfied the other four elements of the test for certification. The defendant challenges the proposed definition of the class and also argues that the proposed common issues are both few and overbroad and would require extensive individual fact finding.
[53] The defendant adds that Ms McCrea is not an appropriate representative plaintiff and did not suffer any loss, as she went back to work as scheduled following her surgery when her sickness benefits were denied.
[54] The defendant adds that a class proceeding is not the preferable procedure due to the large number of individual issues which greatly exceed the few, if any, potential common issues that could be certified. The class proceeding will not achieve savings in terms of costs, access to justice or efficiency.
[55] The defendant, therefore, submits that the motion for certification should be dismissed and the Statement of Claim should be struck, noting that if the motion for certification fails, the causes of action cannot proceed.
Relevant Statutory Provisions
Employment Insurance Act
10 (13) If, during a claimant's benefit period,
(a) regular benefits were not paid to the claimant,
(b) benefits were paid to the claimant for more than one of the reasons mentioned in paragraphs 12(3)(a) to (e) and at least one of those benefits was paid for fewer than the applicable maximum number of weeks established for those reasons, and
(c) the maximum total number of weeks established for those reasons is greater than 50,
the benefit period is extended so that those benefits may be paid up to that maximum total number of weeks.
10 (13) Si, au cours de la période de prestations d'un prestataire, aucune prestation régulière ne lui a été versée, que des prestations pour plus d'une des raisons prévues aux alinéas 12(3)a) à e) lui ont été versées pour un nombre de semaines inférieur au nombre maximal applicable pour au moins une de ces raisons et que le nombre maximal total de semaines de prestations prévu pour celles-ci est supérieur à cinquante, la période de prestations est prolongée du nombre de semaines nécessaire pour que ce nombre maximal total soit atteint.
[…]
[…]
12 (3) The maximum number of weeks for which benefits may be paid in a benefit period
12 (3) Le nombre maximal de semaines pendant lesquelles des prestations peuvent être versées au cours d'une période de prestations est :
(a) because of pregnancy is 15;
a) dans le cas d'une grossesse, quinze semaines;
(b) because the claimant is caring for one or more new-born children of the claimant or one or more children placed with the claimant for the purpose of adoption is 35;
b) dans le cas de soins à donner à un ou plusieurs nouveau-nés du prestataire ou à un ou plusieurs enfants placés chez le prestataire en vue de leur adoption, 35 semaines;
(c) because of a prescribed illness, injury or quarantine is 15;
c) dans le cas d'une maladie, d'une blessure ou d'une mise en quarantaine prévue par règlement, quinze semaines;
(d) because the claimant is providing care or support to one or more family members described in subsection 23.1(2), is six; and
d) dans le cas de soins ou de soutien à donner à un ou plusieurs membres de la famille visés au paragraphe 23.1(2), six semaines;
(e) because the claimant is providing care or support to one or more critically ill children described in subsection 23.2(1), is 35
e) dans le cas de soins ou de soutien à donner à un ou plusieurs enfants gravement malades visés au paragraphe 23.2(1), trente-cinq semaines.
Section 18 as it read up until March 23, 2013 and the provision at issue in this action stated:
18. A claimant is not entitled to be paid benefits for a working day in a benefit period for which the claimant fails to prove that on that day the claimant was
18. Le prestataire n'est pas admissible au bénéfice des prestations pour tout jour ouvrable d'une période de prestations pour lequel il ne peut prouver qu'il était, ce jour-là :
(a) capable of and available for work and unable to obtain suitable employment;
a) soit capable de travailler et disponible à cette fin et incapable d'obtenir un emploi convenable;
(b) unable to work because of a prescribed illness, injury or quarantine, and that the claimant would otherwise be available for work; or
b) soit incapable de travailler par suite d'une maladie, d'une blessure ou d'une mise en quarantaine prévue par règlement et aurait été sans cela disponible pour travailler;
(c) engaged in jury service.
c) soit en train d'exercer les fonctions de juré.
Section 18 was amended in 2013 and effective, March 24, 2013 provides:
18. (1) A claimant is not entitled to be paid benefits for a working day in a benefit period for which the claimant fails to prove that on that day the claimant was
18. (1) Le prestataire n'est pas admissible au bénéfice des prestations pour tout jour ouvrable d'une période de prestations pour lequel il ne peut prouver qu'il était, ce jour-là :
(a) capable of and available for work and unable to obtain suitable employment;
a) soit capable de travailler et disponible à cette fin et incapable d'obtenir un emploi convenable;
(b) unable to work because of a prescribed illness, injury or quarantine, and that the claimant would otherwise be available for work; or
b) soit incapable de travailler par suite d'une maladie, d'une blessure ou d'une mise en quarantaine prévue par règlement et aurait été sans cela disponible pour travailler;
(c) engaged in jury service.
c) soit en train d'exercer les fonctions de juré.
(2) A claimant to whom benefits are payable under section 23 is not disentitled under paragraph (1)(b) for failing to prove that he or she would have been available for work were it not for the illness, injury or quarantine.
(2) Le prestataire à qui des prestations doivent être payées en vertu de l'article 23 n'est pas inadmissible au titre de l'alinéa (1)b) parce qu'il ne peut prouver qu'il aurait été disponible pour travailler, n'eût été la maladie, la blessure ou la mise en quarantaine.
[Emphasis added]
[non souligné dans l’original]
Section 21 refers to sickness benefits, (but only to limit availability)
21. (1) A minor attachment claimant who ceases work because of illness, injury or quarantine is not entitled to receive benefits while unable to work for that reason.
21. (1) Si la cessation d’emploi d’un prestataire de la deuxième catégorie résulte du fait qu’il est devenu incapable de travailler par suite d’une maladie, d’une blessure ou d’une mise en quarantaine, il n’est pas admissible au bénéfice des prestations tant qu’il est incapable de travailler pour cette raison.
(2) If benefits are payable to a claimant as a result of illness, injury or quarantine and any allowances, money or other benefits are payable to the claimant for that illness, injury or quarantine under a provincial law, the benefits payable to the claimant under this Act shall be reduced or eliminated as prescribed.
(2) Lorsque des prestations doivent être payées au prestataire par suite d’une maladie, d’une blessure ou d’une mise en quarantaine et que des allocations, prestations ou autres sommes doivent être payées pour cette maladie, blessure ou mise en quarantaine en vertu d’une loi provinciale, les prestations qui doivent lui être payées en application de la présente loi sont réduites ou supprimées de la manière prévue par règlement.
(3) If earnings are received by a claimant for a period in a week of unemployment during which the claimant is incapable of work because of illness, injury or quarantine, subsection 19(2) does not apply and, subject to subsection 19(3), all those earnings shall be deducted from the benefits payable for that week.
(3) Si le prestataire reçoit une rémunération pour une partie d’une semaine de chômage durant laquelle il est incapable de travailler par suite d’une maladie, d’une blessure ou d’une mise en quarantaine, le paragraphe 19(2) ne s’applique pas et, sous réserve du paragraphe 19(3), cette rémunération est déduite des prestations afférentes à cette semaine.
Subsection 22(1) provides for pregnancy benefits (i.e. maternity benefits)
22(1) Pregnancy - Notwithstanding section 18, but subject to this section, benefits are payable to a major attachment claimant who proves her pregnancy.
22(1) Grossesse - Malgré l'article 18 mais sous réserve des autres dispositions du présent article, des prestations sont payables à la prestataire de la première catégorie qui fait la preuve de sa grossesse.
[Emphasis added]
[non souligné dans l’original]
Subsection 23 (1) provides for parental benefits:
23. (1) Notwithstanding section 18, but subject to this section, benefits are payable to a major attachment claimant to care for one or more new-born children of the claimant or one or more children placed with the claimant for the purpose of adoption under the laws governing adoption in the province in which the claimant resides.
23. (1) Malgré l'article 18 mais sous réserve des autres dispositions du présent article, des prestations sont payables à un prestataire de la première catégorie qui veut prendre soin de son ou de ses nouveau-nés ou d'un ou plusieurs enfants placés chez lui en vue de leur adoption en conformité avec les lois régissant l'adoption dans la province où il réside.
[Emphasis added]
[non souligné dans l’original]
[56] The defendant points out that as a result of more recent amendments, the Act now includes "compassionate care benefits" for leave when a family member has a serious medical condition with a significant risk of death, regardless of whether the claimant is available for work under section 18. In 2013, an additional special benefit was added to provide benefits to a claimant who ceases work to care for a critically ill child. These provisions are not at issue in this proceeding.
The Issues
[57] The overall issue raised in this motion is whether the action should be certified as a class proceeding under Rule 334.16 of the Rules. As noted, each element of the test for certification has been challenged by the defendant.
[58] Rule 334.16(1) of the Rules governs motions for certification of class proceedings and provides:
334.16 (1) Subject to subsection (3), a judge shall, by order, certify a proceeding as a class proceeding if
334.16 (1) Sous réserve du paragraphe (3), le juge autorise une instance comme recours collectif si les conditions suivantes sont réunies :
(a) the pleadings disclose a reasonable cause of action;
a) les actes de procédure révèlent une cause d’action valable;
(b) there is an identifiable class of two or more persons;
b) il existe un groupe identifiable formé d’au moins deux personnes;
(c) the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members;
c) les réclamations des membres du groupe soulèvent des points de droit ou de fait communs, que ceux-ci prédominent ou non sur ceux qui ne concernent qu’un membre;
(d) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and
d) le recours collectif est le meilleur moyen de régler, de façon juste et efficace, les points de droit ou de fait communs;
(e) there is a representative plaintiff or applicant who
e) il existe un représentant demandeur qui :
(i) would fairly and adequately represent the interests of the class,
(i) représenterait de façon équitable et adéquate les intérêts du groupe,
(ii) has prepared a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members as to how the proceeding is progressing,
(ii) a élaboré un plan qui propose une méthode efficace pour poursuivre l’instance au nom du groupe et tenir les membres du groupe informés de son déroulement,
(iii) does not have, on the common questions of law or fact, an interest that is in conflict with the interests of other class members, and
(iii) n’a pas de conflit d’intérêts avec d’autres membres du groupe en ce qui concerne les points de droit ou de fait communs,
(iv) provides a summary of any agreements respecting fees and disbursements between the representative plaintiff or applicant and the solicitor of record.
(iv) communique un sommaire des conventions relatives aux honoraires et débours qui sont intervenues entre lui et l’avocat inscrit au dossier.
Do the Pleadings Disclose Reasonable Causes of Action? Rule 334.16(1) (a)
Overarching Issues
[59] The defendant raised several overarching or broad issues regarding the plaintiff's claim that have been considered both at the outset and again in the context of the specific causes of action pleaded; negligence (including negligent misrepresentation), misfeasance in public office, and unjust enrichment.
The Plaintiff's Sub