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Date:
2011.08.18

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THE EMPLOYERS' EDGE

An Employee’s Battle with Cancer and the Employment Insurance Act may have Set a Precedent for other Employees to Combine Sick Leave with Parental Leave or other Leave Benefits

Practice Areas: Human Resources Support

The recent Umpire’s decision in Rougas v. Employment Insurance Act  (the “Act”) may have paved the way for employees who become ill during a pregnancy/parental leave to combine employment insurance benefits for up to sixty-five (65) weeks.

Almost a year after giving birth to her son, claimant Natalya Rougas, age 37, had planned to return to work in late January of 2010.  Near the end of her 50 week maternity/parental leave, Ms. Rougas was diagnosed with stage-three breast cancer, subjecting her to chemotherapy and a double mastectomy.  Ms. Rougas contacted Service Canada to request a conversion of her parental leave benefits claim to sickness benefits but was mistakenly informed that the request would have to wait until the end of her parental leave.  At the completion of her maternity/parental leave, Ms. Rougas applied for an additional 15 weeks of sickness benefits and relied on amendments to the ­Act (Bill C-49) which allow claimants to convert maternity/parental leave benefits to sick leave benefits and extend benefit entitlement from 50 weeks to 65 combined weeks in certain circumstances.   Ms. Rougas’ application, however, was denied by the government on the basis that when she had first requested benefit conversion she was not “otherwise available for work” because she was on parental leave and when she did become “otherwise available” her claim had expired as she has received the full fifty weeks of benefits – in other words, there was no longer a claim to extend or reactivate.

On appeal, counsel for Ms. Rougas emphasized that the legislative intent of Bill C-49 was to make sickness leave benefits available to all women, whether they took their leave before, during or after their parental leave.  Counsel for the Attorney General relied on section 18 of the Act, which requires that a claimant demonstrate not only current inability to work but also that they would have otherwise been available to work but for the sickness.  According to previous Board of Referee decisions, an employee on parental leave is not considered to be “otherwise available to work” and therefore not entitled to benefits beyond fifty weeks.

In rejecting the government’s position, the Umpire awarded sick benefits in the amount of $6,000 to the claimant and based his ruling on the original purpose of the Act which was to provide income to those suffering from an involuntary loss of employment.  This case could set a precedent for employees who fall ill during or after an approved leave of absence.    CCP has been advised that the government does not intend to appeal this decision.   Employers are well advised to stay up to date on decisions like Rougas that impact job-protected leaves of absences like pregnancy and parental leave.   The lawyers at CCP can assist employers in understanding their legal obligations in circumstances where employees are entitled to combine benefits for extended leaves under the employment insurance regime.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.

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