Docket: T-829-24
Citation: 2025 FC 432
Toronto, Ontario, March 10, 2025
PRESENT: The Honourable Mr. Justice A. Grant
BETWEEN: |
SHERIF ABDELMAKSOUD |
Applicant |
and |
THE ATTORNEY GENERAL OF CANADA |
Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] The Applicant, Mr. Sherif Abdelmaksoud, is seeking judicial review of a Decision in which the Canada Revenue Agency [CRA] found him ineligible for the Canada Emergency Response Benefit [CERB]. The CRA found Mr. Abdelmaksoud ineligible because he had already received employment insurance [EI] benefits for some of the periods in which he had also received the CERB.
[2] This application for judicial review should be dismissed. I see no procedural unfairness in the determination that Mr. Abdelmaksoud was ineligible for CERB payments in the periods for which he was also in receipt of EI. Moreover, while I am sympathetic to the Applicant’s situation, the CRA properly interpreted the applicable legislation, and came to the only conclusion that was available to it. Its decision was therefore a reasonable one.
II. BACKGROUND
A. Background to CERB Benefits
[3] The CERB was one of several benefit regimes created by the federal government to support individuals during the COVID-19 pandemic. It was available in four-week periods between March 15, 2020, and October 3, 2020. The eligibility criteria for the CERB are set out in the Canada Emergency Response Benefits Act [CERB Act].
[4] Notably for this case, an applicant was not eligible for CERB if they received employment insurance [EI] benefits in respect of the days they stopped working due to COVID-19: CERB Act, s.6(1)(ii). Where applicants received CERB benefits while ineligible because they were also in receipt of EI benefits for the same period, they are required to repay the CERB payments received, in the amount of $500 for every week that they also received EI benefits within the relevant CERB payment period: CERB Act, s.15(1).
[5] The CERB was effectively replaced by the Canada Recovery Benefit [CRB], which provided payments to individuals from September 27, 2020, until October 23, 2021.
B. The Applicant’s benefits applications and initial reviews
[6] At the height of the pandemic, in the Fall of 2020, Mr. Abdelmaksoud was facing extremely difficult economic circumstances. He had been receiving EI benefits, but these were winding up in September. As a result, over the course of the Fall, he applied for and received retroactive CERB payments for the period beginning on July 5 and ending on September 26, 2020. This corresponded to the fifth through seventh payment periods provided under the CERB regime. While it appears that Mr. Abdelmaksoud could have applied for benefits under the CRB in the months immediately following the expiration of his EI payments, he did not do so - it seems, because of his application for retroactive payments under the CERB.
[7] Later, in or around November 2022, the CRA decided to validate the Applicant’s CERB applications.
[8] In a First Decision, the CRA concluded that the Applicant was not eligible for the CERB for periods 5 and 6, because he had received EI benefits for those periods. The notice indicates he was required to pay back $4,000. Mr. Abdelmaksoud requested a redetermination.
[9] In a First Redetermination, the CRA concluded that the Applicant was not eligible for the CERB for periods 5 and 6, and for three weeks of period 7 (from August 30 to September 26, 2020), because he had received employment insurance for those same periods. The notice indicated that Mr. Abdelmaksoud was now required to pay back $5,500.
[10] On November 26, 2022, the Applicant spoke to a CRA employee via telephone. During the call, Mr. Abdelmaksoud asserted that he did not receive EI benefits for the period in question. In response, the CRA employee informed the Applicant that he had applied for CERB for the July 5 – September 26 periods, even though he received the funds in October and November; and that this constituted a “double claim”
for both EI and CERB.
[11] In December 2022, Employment and Social Development [ESDC] confirmed (at the CRA’s request) that Mr. Abdelmaksoud had received EI benefits from July 5 to September 19, 2020, but not from September 20 to 26, 2020.
C. Decision under Review
[12] In a Second Review Decision, the CRA determined that Mr. Abdelmaksoud was not eligible for the CERB for periods 5-6 and for the first three weeks of period 7, because he had received EI benefits from July 5 to September 19, 2020. As a result, the decision confirmed that Mr. Abdelmaksoud was required to repay the amount of $5,500 that had been issued to him.
III. ISSUES and STANDARD OF REVIEW
[13] The Applicant challenges both the reasonableness and the procedural fairness of the Decision. It is well-established that the standard of review applicable to the merits of the CRA's decisions regarding CERB benefits is reasonableness: He v Canada (Attorney General), 2022 FC 1503 at para 20; Lajoie v Canada (Attorney General), 2022 FC 1088 at para 12.
[14] On issues relating to procedural fairness, the reviewing court must conduct its own analysis of the process followed by the decision-maker to determine whether the process was fair: Bharadwaj v Canada (Citizenship and Immigration), 2022 FC 1362 at para 8. This approach to review is functionally the same as applying the correctness standard: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 (CanLII), [2019] 1 FCR 121 at paras 49-56. The level of procedural fairness owed to CERB applicants is on the low end of the spectrum: Cozak v Canada (Attorney General), 2023 FC 1571 at para 17.
IV. ANALYSIS
A. Preliminary Matter: Evidence not Before the Decision-Maker
[15] The Respondent submits that the Applicant included, in his record, bank statements that were not before the CRA at the time of the decision. From my review of the Record, this appears to be true.
[16] Applications for judicial review are typically confined to the evidence that was before the administrative decision maker: Maltais v Canada (Attorney General), 2022 FC 817 at para 21. There are some exceptions to this rule, which were discussed by the Federal Court of Appeal in Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 128 at paras 97–98. The exceptions arise where the new evidence: (1) provides general background that might assist the Court in understanding the issues relevant to the judicial review; (2) is necessary to bring to its attention procedural defects; and (3) highlights the complete absence of evidence before the administrative decision maker. The bank statements included in Mr. Abdelmaksoud’s Application Record do not fall under these exceptions. As a result, I will not consider these documents, although I would note that nothing turns on them in any event.
B. Preliminary Matter: Style of Cause
[17] The Applicant listed the Respondent in this matter as the Canada Revenue Agency. The CRA, in this matter, is the delegate of the Minister of Employment and Social Development. Pursuant to s. 303(2) of the Federal Court Rules, the responding party should be the Attorney General of Canada. The style of cause will be amended accordingly.
C. The Decision was made in a procedurally fair manner
[18] The Applicant submits that the CRA breached his right to procedural fairness in coming to the Decision. With respect, there is no merit to this argument. There is no indication from the Record that Mr. Abdelmaksoud was treated unfairly – he was informed of the case he had to meet and was given an opportunity to respond.
[19] As noted above, the level of procedural fairness owed to the Applicant in this case was on the lower end of the spectrum. During Mr. Abdelmaksoud’s phone call with the CRA on November 26, 2022, he was informed of the CRA’s concerns with his CERB application. The CRA employee listened to the Applicant’s position that he had not received double benefits for the period in which he applied and explained that it still constituted a double payment because the CERB periods in question related to July 5 – September 26, even though Mr. Abdelmaksoud received the payments in October and November.
[20] Further, the CRA subsequently confirmed the dates for the Applicant’s EI benefit payments with ESDC, which included clarifying that he had not received EI benefits for the last week of CERB payment period 7 (September 20 – 26) and made its decision on that basis.
[21] It is therefore clear that Mr. Abdelmaksoud was informed of the case he had to meet and was given the opportunity to make submissions, which he did, and which were indeed considered by the CRA in coming to its Decision.
[22] The Applicant further submits that he was treated unfairly because the CRA took collection actions before a second decision on his CERB eligibility was issued, and because the CRA disregarded his personal hardship in making a decision. Once again, I cannot accept these arguments. The CERB Act does not constrain the timing of CRA’s efforts to recover payments for ineligible individuals. On the contrary, s.12(1) of the CERB Act states:
If the Minister determines that a person has received an income support payment to which the person is not entitled, or an amount in excess of the amount of such a payment to which the person is entitled, the person must repay the amount of the payment or the excess amount, as the case may be, as soon as is feasible.
[23] In any event, little turns on the timing of the Minister’s recovery efforts, since no payments appear to have been made, and no interest accrues on CERB overpayments: CERB Act s.14. With respect, these submissions do not raise any procedural defects in the Decision. While I sympathize with Mr. Abdelmaksoud’s circumstances, I see no procedural unfairness in the CRA’s assessment of his entitlement to CERB benefits.
[24] On the question of hardship, the Applicant refers to the decision of the Manitoba Court of Appeal in Cann v Director, Fort Garry/River Heights, 2020 MBCA 101. However, this case is of little assistance to the Applicant, as it deals with the interplay between benefits provided under the CERB, and those provided under provincial social assistance programs. While it does touch on the issue of payment recovery, or “clawback,”
the key legislation at issue in that case was the Manitoba Assistance Act, which contained “undue hardship”
language in relation to debt recovery. There is no corresponding language in the CERB Act, which governs this case.
D. The Decision was reasonable
[25] As noted, the CRA concluded that the Applicant was not eligible for the CERB during the periods at issue, because he had already received EI benefits for the same periods. This was confirmed by ESDC and is not contested by the Applicant on this application for judicial review. Given that Mr. Abdelmaksoud concedes that he did receive EI benefits for the CERB periods in question (periods 5-6 and the first three weeks of period 7), it was clearly reasonable for the CRA to determine that he was not eligible for the CERB for those same dates.
[26] I take the Applicant’s perspective to be that he was, in fact, eligible for the CERB because the payments were deposited into his bank account at a later date, when he was not still receiving EI benefits. With respect, this submission cannot succeed.
[27] As the Respondent submits, there is no ambiguity on this point: under s.6(1) of the CERB Act, an applicant must have stopped working for at least 14 consecutive days, and have not received employment insurance benefits in respect of the consecutive days on which they have ceased working. Under s.15(1) of the CERB Act, an applicant who received a CERB payment for which they were not eligible “by reason only that they received one or more payments of benefits, allowances or money”
referred to in the Act, must repay $500 for every week “in which the worker received [employment insurance benefits] during that four-week period.”
[28] The reality of the CERB regime was that payments were often made retroactively, based on self-reported eligibility claims. While the funds would be received at some point after the date the applicant applied, they were related to the period for which the applicant applied, which could be several months prior. This is exactly what appears to have happened in this matter. While Mr. Abdelmaksoud’s CERB payments were applied for and received in October and November 2020, the funds actually related to periods between July 5 to September 26, 2020; periods during which he was also receiving EI benefits. Indeed, this was explained to Mr. Abdelmasouk in his phone conversation with the CRA in November 2022.
[29] It was therefore reasonable for the CRA to find that Mr. Abdelmaksoud was not eligible for the CERB for periods 5-6 and for three weeks of period 7, because he had already received EI benefits for those periods. It appears to have been an unfortunate error that the Applicant applied for the CERB rather than the CRB in the Fall of 2020, as the latter would have provided him with COVID-related benefits over a period in which he was not in receipt of EI benefits. Nevertheless, in his CERB application, Mr. Abdelmaksoud specifically indicated the periods for which he was seeking benefits, and these periods did coincide with his receipt of EI. As such, and based on the Record before me, Mr. Abdelmaksoud has failed to establish a reviewable error.
[30] For Mr. Abdelmaksoud, this is not the end of the story, as he continues to face the prospect of having to repay $5,500, which he suggests is a significant hardship for him.
[31] On the question of repayment, I note that in the Decision under review, CRA stated:
The CRA is here to help Canadians who are unable to pay their debts in full. The CRA will work with Canadians to ensure they aren’t placed in financial hardship because they need to repay COVID-19 benefit overpayments. The CRA offers various solutions tailored to your personal situation.
[32] Taking into account: 1) that Mr. Abdelmaksoud simply appears to have applied for benefits under the CERB when he should have applied under the CRB; and 2) the hardship that he has identified, I would expect the CRA to adhere to the representations contained in the decision under review, and to exercise flexibility related to the quantum and/or timing of any repayments. This would not only be consistent with the humanitarian purpose underlying the federal government’s response to the COVID-19 pandemic, but is also consistent with the language of feasibility contained at s.12(1) of the CERB Act.
V. CONCLUSION
[33] This application for judicial review is dismissed. The Decision was reasonable and was made in a procedurally fair manner. There are no errors warranting judicial intervention. The Respondent has not sought costs in this matter, and I agree that they are not warranted.
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