Docket: T-2021-22
Citation: 2023 FC 898
Ottawa, Ontario, June 27, 2023
PRESENT: The Honourable Madam Justice McVeigh
BETWEEN: |
LAILA MAHMOOD |
Applicant |
and |
ATTORNEY GENERAL OF CANADA |
Respondent |
JUDGMENT AND REASONS
I. Introduction
[1] The Applicant was found not to be eligible for the Canadian Recovery Benefit (CRB) and the Canada Recovery Caregiver Benefit (CRCB). She brings this application regarding the first set of decisions (one for the CRB and one for the CRCB) dated May 19, 2022 as well as the second set of decisions (one for the CRB and one for the CRCB) dated September 2, 2022.
[2] The Respondent consents and I agree that though a review of two decisions is contrary to Rule 302 of the Federal Courts Rules, SOR/98-106 (the “Rules”
), given the two are closely linked it makes sense to determine both together.
[3] While the Applicant’s situation is very sad and her story not embellished, I cannot find the decisions were unreasonable.
II. Background
[4] The relevant periods that the Applicant applied for the CRB are:
(a)Period 1: September 27 to October 10, 2020
(b)Period 2: October 11 to October 24, 2020
(c)Period 3: October 25 to November 7, 2020
(d)Period 4: November 8 to November 21, 2020
(e)Period 21: July 4 to July 17, 2021
(f)Period 22: July 18 to July 31, 2021
(g)Period 23: August 1 to August 14, 2021
(h)Period 24: August 15 to August 28, 2021
(i)Period 25: August 29 to September 11, 2021
(j)Period 26: September 12 to September 25, 2021
(k)Period 27: September 26 to October 9, 2021
(l)Period 28: October 10 to October 23, 2021
[5] The CRCB periods that were applied for are:
(a)Period 57: October 24 to October 30, 2021
(b)Period 58: October 31 to November 6, 2021
(c)Period 59: November 7 to November 13, 2021
(d)Period 60: November 14 to November 20, 2021
(e)Period 61: November 21 to November 27, 2021
(f)Period 62: November 28 to December 4, 2021
(g)Period 63: December 5 to December 11, 2021
(h)Period 64: December 12 to December 18, 2021
(i)Period 65: December 19 to December 25, 2021
(j)Period 66: December 26, 2021 to January 1, 2022
(k)Period 67: January 2 to January 8, 2022
(l)Period 68: January 9 to January 15, 2022
(m)Period 69: January 16 to January 22, 2022
(n)Period 70: January 23 to January 29, 2022
(o)Period 71: January 30 to February 5, 2022
(p)Period 72: February 6 to February 12, 2022
(q)Period 73: February 13 to February 19, 2022
[6] In the first set of decisions the Applicant was found not to be eligible as she did not earn the required $5,000 of gross employment or net self employment income in 2019, 2020 or in the 12 months before the date of the first application.
[7] In the second set of decisions, after reviewing the further submissions as well as the original application, it was determined that the Applicant was not eligible for the CRB as she did not earn at least $5,000 of gross employment or net self-employment income in 2019, 2020 or in the 12 months before the date of her first application.
[8] In the second set of decisions it was also determined that the Applicant was not eligible for the CRCB because she did not earn at least $5,000 in gross employment or net self-employment income in 2019, 2020 or the 12 months before the first application.
[9] The CRCB decision included the finding that her work week was not reduced by 50% because she cared for a family member due to COVID-19. The decision-maker found she was not caring for a child under 12 or family member who could not attend school, daycare or care facility because of COVID-19 or the availability of the ordinary caretaker due to COVID-19 reasons.
III. Issue
[10] The sole issue in this application is whether the decisions were unreasonable.
IV. Analysis
A. Preliminary Issues
[11] The Respondent was incorrectly named and thus the Attorney General of Canada will be substituted for Canada Revenue Agency for the Style of Cause (Hasselsjo v Canada (Attorney General), 2021 CanLII 89551 (FC) at para 2).
[12] The Applicant is self representing and has attached to her affidavit three exhibits (Exhibits J, K, L) that were not before the decision-maker. This is trite law in the administrative law sphere that only material before the decision maker will be considered. The limited exceptions to this general rule are if the material is: a) general background that does not go to the merits, b) procedural defects not in the evidentiary record, or c) where there is a complete absence of evidence. Given these documents did not fit within any of the exceptions, they will not be considered as they are found to be new evidence that was not before the decision-maker will be considered.
B. The Law
[13] The legislation related to this application is the Canada Recovery Benefits Act, SC 2020, c 12 (the “Act”
) (see Annex A).
C. Standard of Review
[14] The standard of review for this application is reasonableness. (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65). Intelligibility, transparency and justification are required by Vavilov.
[15] The Applicant provided information surrounding her income earned at the time in question including a recent tax reassessment. She said emphatically that she would not have applied if she had not earned the required $5,000. She explained where she received her income from and her personal situation regarding the birth of her two children during the period at issue. In reply she told the Court of her childcare situation and why she felt she was entitled to the CRCB.
[16] She was transparent in her answers to the Court regarding the fact she was not able to provide CRA with the information requested by the agent. The reason she could not provide evidence of her income from her tutoring was because she was paid cash only and did not deposit the money but used it to support her family on an immediate basis.
[17] When she was asked in the second review to provide such proof she could only provide letters from three families with some information but without the necessary details as necessary as proof of income as needed by the Act and as requested by the reviewer per the guidelines (see paragraphs 20-21) . Her income shown on her tax documents included her employment income from one job as well as her income on commission from Scentsy but she agreed that income from those two jobs would not meet the necessary $5,000.
[18] As well, regarding the CRCB, she said that as she had a second child during COVID and her husband was not present in the Country and could not return she had to care for their children. Previously her mother had assisted for the care of her first child so she could earn income, but it was confirmed she had never had her children registered for daycare or other caregivers. She said her mother could not care for her child given her own son was at home during COVID so she was forced to care for both children.
[19] The Respondent’s counsel walked through the evidence (an affidavit by Rachel Purdy of CRA who was the second reviewing CRA agent) before the decision-makers including the notes regarding the phone calls to the Applicant where she was told what evidence was needed to prove she made the amount of money required by statute.
[20] The CRA Guideline addresses the proof needed to establish the $5000 minimum income that an applicant must have earned to be eligible to receive the CRB. The CRB Guideline states that to be eligible for the benefits an applicant must have earned a minimum of $5000 in 2019 or within the 12 months prior to the date of their application. Agents are to use their “judgement, experience and expertise”
in deciding if proof is required. If the applicant is unable to provide any of the documents suggested, agents are to work with them to see what other acceptable documents they may have. In this case that is exactly what occurred as the second reviewing agent did exactly that.
[21] Further to this, the CRA Guideline anticipates what may be needed for proof of self-employment income:
Self-employment income
Small business owners can receive income from their business in different ways, including as salary, business income or dividends.
If a small business owner operates as an individual they bill clients in their own name, if they operate under a registered business name they bill their clients in the business name. If the business has a name other than their own, there should be a separate bank account.
Things to consider for small business owners:
- Do they have business cards to promote their business? - Do they advertise? E.g. Kijiji, Marketplace, Craigslist, their own website?
- Do they actively seek employment opportunities?
- Do they have a registered BN?
- Do they perform regular work and provide to non-related persons?
- If they are always paid in cash, do they have proof they keep track of hours and payments?
Example 1:
Applicant wants to include ‘dog walking’ services as income. They should be able to produce invoices (in real time) to their clients that show the date of the service, the name of the client (type of animal or number of animals), cost of service, type of payment received.
Example 2:
Applicant wants to submit receipts to support that she provided babysitting or child care services. Any receipts or invoices they have should include the name of the parent, names of the children and address of the person they provided the service too. The applicant’s information (including SIN) should be provided on the receipt so the individual could claim child care expenses.
…
Acceptable proof:
- Invoice for services rendered, for self employed individuals or sub contractors. For example an invoice for painting a house or a cleaning service etc. Must include the date of the service, who the service was for, and the applicant’s or company’s name.
- Documentation for receipt of payment for the service provided, e.g. statement of account, or bill of sale showing a payment and the remaining balance owed.
- Documentation showing income is earned from carrying on a "trade or business" as a-sole proprietor, an independent contractor, or some form of partnership
- Contracts
- A list of expenses to support the net result of earnings
- Proof of advertising
- Any other documentation that will substantiate $5,000.00 in self employment income
[22] In my view, the record demonstrates that the Officer considered all of the documents submitted by the Applicant as well as the Applicant’s explanation as to why she could not provide proof as set out in the guidelines or by the second reviewing CRA agent.
[23] The record establishes that what was provided by the Applicant was insufficient to prove that the Applicant had the income as required. The Officer found that the Applicant had not established that she was eligible to receive the CRB or CRCB and provided those reasons in her decisions.
[24] The burden is on the Applicant, as the challenging party, to demonstrate that the first and second set of decisions are unreasonable. In that regard, the Court must be satisfied “that there are sufficiently serious short comings in the decision such that it cannot be said to exhibit the requisite degree of justification, transparency and intelligibility”
(Vavilov at para 100). Based on the reasons, the evidence and record before me, I am not satisfied that the Applicant has met her burden.
V. Conclusion
[25] The decisions are reasonable, transparent and justiciable. The Application is dismissed.
[26] A bill of Costs was filed by the Respondent and a lump sum of $2,700 was sought by the successful party. Given the limited means of the Applicant as evidenced in her tax returns, I will award costs to the Respondent in the lump sum inclusive of taxes and disbursements in the amount of $250.
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