Docket: T-2697-23
Citation: 2025 FC 428
Ottawa, Ontario, March 7, 2025
PRESENT: The Honourable Madam Justice Blackhawk
BETWEEN: |
AZIZA ASHUROVA |
Applicant |
and |
ATTORNEY GENERAL OF CANADA |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] This is an application for judicial review of a decision of an officer from the Canada Revenue Agency (“CRA”) dated November 20, 2023, that denied the Applicant’s eligibility for the Canada Recovery Caregiving Benefit (“CRCB”) because her scheduled work week was not reduced by at least 50% to care for a family member for reasons related to the COVID-19 pandemic, and she was not employed or self-employed on the day before her first application period (“Decision”).
[2] The Applicant asks this Court to grant the application and direct that the Applicant is eligible, or in the alternative, send the matter back to the CRA for reconsideration by a different officer.
[3] For the reasons that follow, this application is dismissed.
II. Preliminary matters
[4] At the hearing of this application, two preliminary matters were determined and ruled on from the bench.
A. The Applicant’s representation
[5] The Applicant brought a motion pursuant to Rules 119(1) and 121 of the Federal Courts Rules, SOR-98/106 [Rules], seeking a declaration that she is legally disabled and to permit her non-lawyer spouse, Mr. Strati, to serve as her representative.
[6] The Respondent opposed the motion because the Applicant did not identify “special circumstances”
that would warrant representation by a non-solicitor, nor did the Applicant provide evidence to demonstrate that Mr. Strati was a “suitable representative.”
[7] Rule 119 requires that applicants represent themselves or they may be represented by a solicitor. There is no right to be represented by one’s spouse (Giagnocavo (R) v Canada, 1993 CanLII 17474 (FC), [1993] 1 CTC at 231). While this Court has permitted a spouse to represent an applicant who had limited capacity in English, this was where there was no objection as to the capacity of the spouse to represent the applicant (Sennikova v Canada (Attorney General), 2021 FC 982 [Sennikova] at para 15). In this case, the Respondent has objected because an applicant that is under a legal disability must be represented by a solicitor (Rules, s 121). There are limited exceptional circumstances where a non-solicitor may represent an applicant. This requires the Court to consider the suitability of the proposed representative.
[8] The Respondent argued that the Applicant did not demonstrate that there are special circumstances to warrant representation by a non-solicitor. I agree that the inability to pay for legal counsel is not a reason to circumvent the Rules.
[9] However, courts must be mindful of access to justice considerations and must not unreasonably fail to exercise discretion where circumstances warrant. I am of the view that the Applicant has demonstrated that there are “special circumstances”
that warrant the Court’s exercise of discretion.
[10] The Applicant has provided some information to indicate that she is suffering from depression and is taking medication. In addition, she has provided a psychoeducational assessment report (“Report”), which illustrates that she has learning, communication, attention, and memory impairments, and that she has been assessed as meeting the criteria for a Mild Intellectual Disability and depressive disorders. This same report also highlighted the Applicant's many strengths that may assist in overcoming some of her weaknesses. She was assessed as being “astute, sociable and resilient.”
While the Report indicates that she has challenges and requires some support and accommodation, the Report highlighted strategies for her to “become her own advocate”
and other accommodation strategies.
[11] Disability is defined in different ways in Canada. For example, the Canadian Human Rights Act, RSC 1985, c H-6 defines ‘disability’ as “any physical or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug”
(s 25). Similarly, the Accessible Canada Act, SC 2019, c 10 defines ‘disability’ as “any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment — or a functional limitation — whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society”
(s 2). Based on the evidence in the Applicant’s affidavit and the Report, I am persuaded that the Applicant has some learning and communication barriers that may impact her ability to fully participate in a hearing.
[12] The Applicant has also provided some information concerning her capacity in English. While language barriers are a consideration, they do not in-and-of-themselves justify representation by a non-solicitor; rather, this warrants the need for an accredited interpreter. I note that the Applicant filed affidavits in support of this motion and her application for judicial review. However, neither affidavit indicated that an interpreter was used to facilitate the taking of the affidavit, nor is there any indication that the affidavit was interpreted to her by any person, or by a certified interpreter with an accompanying interpreter’s oath (Rules, s 93). Rule 31 requires that requests for an interpreter to be made in writing to the judicial administrator as soon as practicable before the hearing. No such request was made.
[13] There has been no information provided to the Court that would enable it to determine if Mr. Strati is a suitable person to act as a representative (Scheuneman v Canada (Attorney General), 2003 FCA 439 at para 5). The record illustrates that Mr. Strati has been representing the Applicant in communications with the CRA and the Applicant’s former legal counsel. He appears to have communicated with counsel for the Respondent and indicated that he assisted in the drafting of the Applicant’s written materials. It is clear he has knowledge of the facts and the issues in this application. That said, the record also highlights that Mr. Strati has been argumentative in interactions with the CRA, has been disruptive in meetings with the CRA by interrupting the Applicant and her former counsel, and the Applicant’s written submissions are clear that neither her nor Mr. Strati are “legal scholars”
or lawyers. That said, the Applicant has clearly authorized Mr. Strati to speak on her behalf in a representative capacity in this application. The Applicant and Mr. Strati agree that he does this without compensation.
[14] I can see no prejudice to the Respondent in granting the motion to permit Mr. Strati to represent the Applicant in these proceedings. I agree that the Court must be careful in exercising its discretion to permit a non-lawyer to represent the Applicant; however, I am of the view that there are special circumstances present, namely her limited English capacity and documented impairments in the Report. It is in the interests of justice to grant this motion, “despite the general requirement in the
Rules that individuals either represent themselves or be represented by counsel”
(Sennikova at para 15). To be clear, Mr. Strati is not a lawyer. In electing to have Mr. Strati represent her, the Applicant is bound by the submissions made by Mr. Strati on her behalf and the consequences that follow those submissions (Palonek v Canada (National Revenue), 2007 FCA 281 at para 16). This includes the failure to ensure that there is a certified interpreter present for this hearing.
[15] While the Court has and must show flexibility to self-represented parties, this does not give self-represented litigants any special rights or considerations because of their lack of knowledge or legal skill. Parties who insist on representing themselves must follow the same rules as everyone else, they are not excused from an application of the Rules, and they have an obligation to be self-educated (Brunet v Canada (Revenue Agency), 2011 FC 551 at para 10; Clarke v Canada (Attorney General), 2024 FC 1702 at para 12).
[16] The Applicant indicated that she accepts the consequences of her election. Accordingly, I am exercising my discretion to permit her spouse, Mr. Strati, to represent her in today’s hearing.
B. Constitutional Question
[17] On December 27, 2024, the Applicant filed a notice of constitutional question (“NCQ”). There was no accompanying affidavit of service to demonstrate that the NCQ was properly served on the Respondent, pursuant to section 57 of the Federal Courts Act, RSC 1985, c F-7. As such, the Respondent has not made submissions on this, and it will not be considered by the Court.
III. Background
[18] The Applicant was retained by the Fron Group as an independent contractor to bake frozen goods at her home. She was paid for her work in cash. The Applicant contracted with the Fron Group in this capacity between March 2018 and March 2020.
[19] On October 28, 2021, the Applicant gave birth to her son. She stopped working and chose to stay home because her son had a high risk of developing serious health complications if he contracted COVID-19. At the time, there was no approved immunization for infants and there were very limited available day care spaces for infant children.
[20] The Applicant applied for the CRCB for 28 one-week periods between October 24, 2021, and May 7, 2022 (“Benefit Period”). The Applicant provided written submissions and other materials in support of her application between November 1, 2021, and August 24, 2022. The materials included the CRCB application form, letters from the Applicant, correspondence with childcare facilities, and a letter of employment from the Fron Group.
[21] The First Reviewing Officer determined the Applicant was not eligible for the CRCB because (1) she did not earn at least $5,000 (pre-tax) of employment or net self-employment income in 2019, 2020, 2021, or in the 12 months before the application date; (2) she was not employed or self-employed on the day before the application date; and (3) her scheduled work week was not reduced by at least 50% because she was caring for a family member for reasons related to COVID-19.
[22] The First Reviewing Officer notified the Applicant of their eligibility decision on September 14, 2022. The Applicant then requested a second review.
[23] On October 9, 2022, the Applicant provided the Second Reviewing Officer with further written submissions and supporting materials. These included the Applicant’s 2019 and 2020 tax returns, the Applicant’s son’s birth certificate, screenshots of the CRA portal and its error regarding the Applicant’s submitted documents, letters from the Applicant, and correspondence regarding the Applicant’s employment.
[24] On January 23, 2023, the Second Reviewing Officer determined that the Applicant was ineligible for the CRCB for the same reasons as the First Reviewing Officer.
[25] The Minister set aside the decision of January 23, 2023, after the Applicant brought an application for judicial review.
A. Further Second Review
[26] The CRA assigned the further second review of the Applicant’s CRCB application (“Further Second Review”) to David Roy (“Further Second Reviewing Officer”).
[27] The Applicant took the position that she was employed and/or self-employed, and that she had earned sufficient income through her work as a contractor to meet the eligibility requirements. She submitted banking records and attestations from her clients/employers in support of her position that she was not working so she could care for her infant son. From June 13 to October 13, 2023, the Applicant submitted further supporting materials, including the “authorization and direction”
for the Applicant’s counsel, copies of bank statements, copies of her applications for judicial review, receipts from her employers/clients, and correspondence regarding her pursuit of employment.
[28] On November 20, 2023, the Further Second Reviewing Officer determined she was ineligible for the CRCB because the Applicant was not employed or self-employed October 10–23, 2021, the period prior to the Benefit Period; and that the Applicant was not employed or self-employed October 24, 2021, to May 7, 2022, the period in which the Applicant received the CRCB. Accordingly, there had been no reduction of the Applicant’s work week by 50% when she began caring for her infant son. Therefore, the Applicant did not meet the CRCB criteria.
[29] The Further Second Reviewing Officer also determined that the reduction to the Applicant’s employment or self-employment was only because the employers/clients did not offer additional contracts, and she did not find additional work from her employment applications.
[30] The Applicant commenced her application for judicial review on December 19, 2023. She alleged she was denied for the CRCB for reasons she did not understand and that no one explained to her.
IV. Legislation
[31] The legislative framework for this application is the Canada Recovery Benefits Act, SC 2020, c 12 [CRB Act]. The eligibility requirements for the CRCB are found at subsection 17(1) of the CRB Act. An applicant must have:
made an application pursuant to section 18 of the CRB Act;
in respect of a CRCB application for a week beginning in 2021, earned at least $5,000 of income from employment or self-employment income in 2019, 2020, or in the 12-month period preceding the day on which the person applied for the CRCB (CRB Act, s 17(1)(e));
in respect of a CRCB application for a week beginning in 2022, earned at least $5,000 of income from employment or self-employment income in 2019, 2020, 2021, or in the 12-month period preceding the day on which the person applied for the CRCB (CRB Act, s 17(1)(e.1);
as an employee, been unable to work for at least 50% of the time they would have otherwise worked in that week—or as a self-employed person, reduced the time devoted to their work as a self-employed person by at least 50% of the time they would have otherwise worked that week—because:
i. they cared for a child under 12 years of age on the first day of the week because of facility closure related to COVID-19 or due to an inability to attend a facility for reasons related to COVID-19 (CRB Act, s 17(1)(f)(i)); or
they cared for a family member who required supervised care because of a facility closure related to COVID-19, or due to an inability to attend a facility for reasons related to COVID-19 (CRB Act, s 17(1)(f)(ii)).
[32] Section 20 of the CRB Act sets out that applicants have an obligation to provide the Minister with any information the Minister may require in respect of an application for benefits.
V. Issues
[33] The issues to be addressed in this application are:
What is the applicable standard of review?
Should this Court consider new evidence that was not before the decision maker?
Is the Decision reasonable?
Is the Decision procedurally fair?
VI. Analysis
A. Standard of review
[34] The applicable standard of review in this case is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 25, 86). There is a presumption that reasonableness is the applicable standard of review for most administrative decisions, including statutory interpretation (Vavilov at para 10; Mason v Canada (Citizenship and Immigration), 2023 SCC 21 [Mason] at paras 7, 39, 47,68). There are three recognized exceptions to the presumption of reasonableness that attract a standard of correctness review: constitutional questions, general questions of law of central importance, questions concerning the jurisdictional boundaries between administrative bodies (Vavilov at paras 53, 70; Mason at paras 42–43). The CRB Act does not prescribe a different standard of review, and this Court has applied the reasonableness standard in similar cases.
[35] The Applicant argued that there was a statutory right of appeal in the CRB Act and suggested that that appellate standards of review apply. As explained above, I do not agree.
[36] Reasonableness review is a deferential standard and requires an evaluation of the administrative decision to determine if the decision is transparent, intelligible, and justified (Vavilov at paras 12–15, 95). The starting point for a reasonableness review is the reasons for decision. Pursuant to the Vavilov framework, a reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”
(Vavilov at para 85). To intervene on an application for judicial review, the Court must find an error in the decision that is central or significant to render the decision unreasonable (Vavilov at para 100).
[37] The standard of review applicable to determining if a decision maker complied with the duty of procedural fairness is generally described as correctness (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 34, citing Mission Institution v Khela, 2014 SCC 24 at para 79). The central question is: did the applicant know the case to be met, and did the applicant have a full and fair opportunity to make submissions?
B. New evidence
[38] In the Applicant’s affidavit, she included several new exhibits that were not before the Further Second Reviewing Officer at the time of Decision. These documents include:
Exhibit N – Note from Dr. Paul Nijmeh, dated April 25, 2022;
Exhibit Y – Letter from Department of Justice, dated March 28, 2023;
Exhibit Z – Letter from Revikka Balachandran, dated May 15, 2023;
Exhibit AA – Email from Revikka Balachandran, dated April 11, 2023;
Exhibit AB – Email from Revikka Balachandran, dated May 15, 2023;
Exhibit AF – Email from Revikka Balachandran, dated August 21, 2023;
Exhibit AG – Email from Revikka Balachandran, dated November 2, 2023; and
Exhibit AI – Letter from Orsjon Beqari, dated December 10, 2023.
[39] Generally, a party may not submit new evidence on an application for judicial review (Bernard v Canada (Revenue Agency), 2015 FCA 263 at para 13; Delios v Canada (Attorney General), 2015 FCA 117 at para 42). A reviewing court is to determine if the decision under review was reasonable based on the evidence that was before the original decision maker (Connolly v Canada (Attorney General), 2014 FCA 294 at para 7; see also Sharma v Canada (Attorney General), 2018 FCA 48 [Sharma] at para 7).
[40] A court may admit new evidence on judicial review in three circumstances. First, where the new evidence provides general background information that assists the Court in its understanding of the relevant issues, without adding evidence that goes to the merits of the application. Second, where the new evidence brings the Court’s attention to procedural defects not found in the record before the decision maker. Third, where the new evidence highlights a complete absence of evidence before the decision maker on a finding (Bains v Canada (Citizenship and Immigration), 2020 FC 57 at paras 23–24 citing with approval Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [Access Copyright] at para 20).
[41] While the list of exceptions is not exhaustive, the exceptions “exist only in situations where the receipt of evidence by this Court is not inconsistent with the differing roles of the judicial review court and the administrative decision-maker”
(Access Copyright at para 20).
[42] Pursuant to sections 3 and 4 of the CRB Act, Parliament granted the Minister the authority to make determinations with respect to the eligibility for the CRCB. This Court’s role is to review the Decision based on the facts before the Minister and not to consider new evidence that should have been made available to the CRA in the course of the validation process (Sharma at paras 8–9).
[43] The new evidence was not available to the CRA for the original or subsequent reviews of the Applicant’s CRCB application. The Applicant did not make submissions concerning the admissibility of the new evidence or provide an explanation as to why this evidence was not provided to the CRA or the Further Second Reviewing Officer. The evidence does not fit within any of the exceptions noted above for the admission of new evidence on judicial review. Accordingly, the new evidence is inadmissible and is struck from the record.
C. Is the Decision reasonable?
[44] The Applicant argued that the Decision is not reasonable and lacks the requisite degree of justification, transparency, and intelligibility. Specifically, she argued that the Decision is unreasonable because the Further Second Reviewing Officer failed to consider the Applicant’s circumstances as a parent, her mental health and stress, and her financial situation. In addition, the Applicant stated that the Further Second Reviewing Officer misapprehended or failed to consider the Applicant’s submissions and supporting documentation.
[45] The Respondent stated that the record demonstrates that the Further Second Reviewing Officer clearly considered all submissions and supporting documentation. Further, they asked questions and provided the Applicant with sufficient opportunities to demonstrate her eligibility for the CRCB.
[46] The Respondent argued that the Decision satisfied the hallmarks of a reasonable decision and is based on the information provided by the Applicant.
[47] A review of the record indicates that the Applicant’s supporting documentation demonstrated that she was not working in the October 10–23, 2021 period, the two-week period prior to the Benefits Period for which she applied to receive the CRCB. The Applicant was not working because she had not received additional contracts from her employers/clients and she had not found other employment or contracts, despite a diligent search for work. The evidence established that the Applicant was not employed when she gave birth to her son and commenced caregiving responsibilities. In other words, the Applicant was not working immediately preceding for date of her application for the CRCB, as required by section 17 of the CRB Act.
[48] I am not persuaded that the Further Second Reviewing Officer failed to consider the Applicant’s circumstances or misapprehended her evidence. The record clearly demonstrates that the Further Second Reviewing Officer was alive to the Applicant’s circumstances, including that:
The Applicant had an infant to care for, she was breastfeeding, and she was concerned about the risks of COVID-19 and the health of her infant.
The Applicant’s child was born on October 28, 2021. The Applicant had no other minor children in her care at the time. The Applicant did not have childcare in place that was impacted by the COVID-19 pandemic.
The Applicant had made inquiries with daycare centres, but due to the COVID-19 pandemic and her infant child’s age, securing a place was challenging.
The Applicant provided invoices and bank statements to verify employment income. An invoice for the week of October 17–23, 2021, to verify her employment status the week prior to the commencement of the Benefits Period was not provided.
[49] Finally, the Applicant argued that the Officer fettered their discretion in the application of the CRB Act; specifically, the language used in the denial letter—“your scheduled work week was not reduced by at least 50%.”
The Applicant argued that this language demonstrates that the Further Second Reviewing Officer fundamentally misunderstood the evidence concerning her employment or the nature of self-employment generally, which is not based on a “scheduled work week.”
[50] The Respondent argued that the Further Second Reviewing Officer did not fetter his discretion or otherwise misapprehend the evidence. They argued that the use of term “scheduled work week”
as opposed to the term “time devoted to work”
is a distinction without a difference.
[51] Paragraph 17(1)(f) of the CRB Act states:
They have, as an employee, been unable to work for at least 50% of the time they would have otherwise worked in that week- or they have, as a self-employed person, reduced the time devoted to their work as a self-employed person by at least 50% of the time they would have otherwise worked in that week…
[52] The point the Further Second Reviewing Officer made was that there was not a reduction in work due to care responsibilities as a result of the COVID-19 pandemic. I agree that the use of the term “scheduled work week”
as opposed to the term “time devoted to work”
is a distinction without difference. Decision makers reasons do not need to be perfect, and any errors warranting intervention must go to the merits of the decision (Vavilov at para 100).
[53] The Applicant did not provide evidence to support their allegations that the Further Second Reviewing Officer misapprehended or failed to consider the Applicant’s evidence. The Further Second Reviewing Officer reasonably concluded that there was no reduction in the Applicant’s work week due to the COVID-19 pandemic. They found that the Applicant was not working because she had not received further contracts for employment from her employers/clients. In other words, the Further Second Reviewing Officer concluded that the reason the Applicant was not working was not to care for her infant son.
[54] The eligibility criteria established by the CRB Act is statutory and non-discretionary. In other words, the Further Second Reviewing Officer had no choice but to apply the CRB Act. Despite the Applicant’s reasonable belief that she would be eligible for the CRCB, the statute is paramount and determinative of this application (Flock v Canada (Attorney General), 2022 FC 305 at para 23; Moghtaderi v Canada (Revenue Agency), 2024 FC 2069 at para 17).
[55] The Applicant’s arguments that the Decision did not consider her economic needs, her ability to repay, her belief that she was eligible, or that she was caring for an infant does not detract from the reasonableness of the Decision, which is tied to the non-discretionary application of the statutory eligibility criteria (Derosa v Canada (Attorney General), 2025 FC 144 at para 16).
[56] Because the Applicant did not demonstrate that she was self-employed on the day before her CRCB application, she was not eligible under the CRB Act. The eligibility criteria are not discretionary, and while she met some elements, her failure to satisfy this element is fatal to her application.
[57] The Applicant clearly does not agree with the Decision. However, on a judicial review, a reviewing court should not intervene with findings of fact, absent exceptional circumstances (Vavilov at para 104). The fact that an applicant does not agree with an administrative decision does not render that decision unreasonable.
D. Is the Decision procedurally fair?
[58] In addition, the Applicant argued that the Decision was not procedurally fair because she was not provided with an interpreter and did not understand the process.
[59] The Respondent argued that to the extent there were any breaches of procedural fairness, the breaches were fully cured in the Further Second Review.
[60] The Respondent argued that allegations of procedural unfairness relating to the Further Second Review are not established. The Respondent noted that the Applicant took advantage of the opportunity to make supplemental submissions for consideration by the Further Second Reviewing Officer. The record demonstrates that the Further Seconding Reviewing Officer considered the supplementary submissions.
[61] In the context of decisions made under the CRB Act, the level of procedural fairness owed is at the low end of the spectrum (Cozak v Canada (Attorney General), 2023 FC 1571 at para 17).
[62] The record illustrates that the Applicant was provided opportunities to give additional information in two separate phone calls on September 14 and November 15, 2023. The Applicant was accompanied by her former counsel, who permitted the calls to proceed despite the absence of an interpreter. Concerns with proceeding in the absence of a properly certified interpreter do not appear to have been raised at those times. Consequently, the Applicant cannot now claim a breach of procedural fairness, based on the election and waivers made at the time by her and her counsel (Bilal v Canada (Citizenship and Immigration), 2005 FC 1692 at para 24).
[63] The Applicant asked and responded to questions. The Applicant knew the case she had to meet, and she was given a full and fair opportunity to make submissions, which the Further Second Reviewing Officer considered.
[64] The Applicant made numerous bald assertions of other breaches of procedural fairness, including allegations of bias, misfeasance of public office, and misrepresentations, threats, and intimidation by CRA officers conducting the review of her application. However, the Applicant has not provided any evidence to support these allegations.
[65] In my view, the Decision was made in a procedurally fair manner.
VII. Conclusion
[66] The Decision is reasonable and was made in a procedurally fair manner. Accordingly, this application for judicial review is dismissed without costs.
[67] I understand the Applicant’s grievances and concerns regarding her economic situation, the hardship that CRA demands for repayment impose, concerns she had with respect to the risks COVID-19 posed for infants when there was no approved vaccine, and the difficulties of finding childcare for infants generally and during COVID-19 lockdowns. While I am empathetic to the Applicant’s situation, the CRB Act is clear and there is no room for discretion—officers are required to apply the eligibility criteria to everyone.
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