Docket: T-1237-24
Citation: 2025 FC 624
Ottawa, Ontario, April 4, 2025
PRESENT: The Honourable Madam Justice Tsimberis
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BETWEEN: |
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JANINE HOLLY EARL |
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Applicant |
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and |
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THE ATTORNEY GENERAL OF CANADA |
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Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Janine Holly Earl [Applicant] is as a self-represented individual who seeks judicial review of a decision made by a benefits validation officer [Second Reviewer] of the Canada Revenue Agency [CRA] dated May 13, 2024 [Second Decision], finding that the Applicant was not eligible for the Canada Recovery Benefit [CRB] because the “looking for work criteria”
was not met.
[2] The Applicant submits that the Second Reviewer breached her right to procedural fairness by not properly considering the correct questions to ask her, did not follow the eligibility criteria in the legislation creating an adverse circumstance for the Applicant, and that it is now unreasonable for the CRA to deny entitlement to the Applicant after having initially granted it.
[3] Though I am mindful of the fact that the Applicant is a self-represented litigant, for the following reasons, and in conformity with the role of this Court in a judicial review, I find that the Second Decision is not unreasonable and was arrived at in a procedurally fair manner.
II. Background
A. Relevant Legislation
[4] For the purposes of this application for judicial review, the relevant CRB eligibility requirements found at subsection 3(1) of the Canada Recovery Benefits Act, SC 2020, c 12, s 2 [CRB Act] are applicable:
Canada Recovery Benefit
Eligibility
3(1) A person is eligible for a Canada recovery benefit for any two-week period falling within the period beginning on September 27, 2020, and ending on October 23, 2021, if
(…)
(i) they sought work during the two-week period, whether as an employee or in self-employment;
(j) they did not place undue restrictions on their availability for work during the two-week period, whether as an employee or in self-employment; (…)
[Emphasis added]
[5] Other relevant provisions of the CRB Act are section 6, which puts the burden of proof on the taxpayer, and subsection 30(1), which permits the Minister of Employment and Social Development [Minister] to reconsider eligibility for the CRB after the benefit has been paid:
Obligation to provide information
6 An applicant must provide the Minister with any information that the Minister may require in respect of the application.
Reconsideration of application
30 (1) Subject to subsection (5), the Minister may re-consider an application for benefits under this Act within 36 months after the benefits have been paid.
B. Facts
[6] In October 2019, the Applicant started a radio frequency business in the beauty industry. Further to restrictions resulting from the COVID-19 pandemic that impacted her business, the Applicant applied for the CRB for the 27 two-week periods from September 27, 2020, to October 9, 2021 [Relevant Periods].
[7] After receiving a negative first decision from the CRA that she was ineligible for the CRB on the basis that she did not earn at least $5,000 (before taxes) of employment and/or net self-employment income in 2019, 2020, or in the 12 months before the date of her application [First Decision], the Applicant exercised her right to request a second review by letter dated August 16, 2023, and provided additional documentary submissions, including receipts and client protocols.
[8] On March 14, 2024, the second review began. The CRA assigned Jaskiran Toor to conduct the second review [Second Reviewer]. The Second Reviewer spoke with the Applicant by telephone on April 18, 2024, and again on May 1, 2024, after receipt of additional material from the Applicant concerning her eligibility, including client intake forms, receipts, a business card, and a receipt for a radio frequency machine.
C. Decision under Review
[9] By letter dated May 13, 2024, the Second Reviewer at the CRA notified the Applicant of its Second Decision that she was ineligible for the benefits:
We have completed our review and have carefully considered all the information available. We have determined you are not eligible for the following reason(s):
-
-You were able to work but not looking for a job.
[Emphasis added]
[10] The Second Reviewer’s notes in the T1Case agency-wide notepad reproduced below are part of the reasons for the Second Decision denying the CRB benefits (Aryan v Canada (Attorney General), 2022 FC 139 [Aryan] at para 22). The Second Reviewer’s notes entered on May 8, 2024 in the T1Case notepad, state that when they spoke to the Applicant (benefit recipient [BR]):
(…) Discussion of concerns addressed with the benefit recipient: (…) Were they still advertising their business during the applied periods? BR was not advertising their business during the applied CRB periods and were not looking for any other jobs because they were taking care of their mother and daughter (who had autism) and also because they were retired.
Date of phone call(s): 2024-04-18 (…)
Eligibility criteria not met: BR was looking for work criteria not met for CRB periods.
Decision Explanation: (…) Therefore, $5k income criteria is met for all the CRB 1-27 periods. For CRB, BR mentioned that they were not advertising their business during the applied CRB periods, but they were advertising prior to pandemic. Therefore, BR will not be eligible for any CRB 1-27 periods because BR was looking for work criteria is not met for CRB periods,
Decision letter date: 2024-05-08
Periods Denied: CRB 1-27
III. Preliminary Issue - Inadmissibility of Applicant’s newly submitted evidence
[11] The Respondent submits that the Applicant improperly asks this Court to consider new evidence in its affidavit that was not before the Second Reviewer.
[12] The Applicant’s Affidavit dated August 22, 2024, contains a statement that “[d]uring the time I was in receipt of the CRB benefits [I] reached out to my clientele to inquire if they wanted to resume treatments and they refused because of fear of contracting covid”
and attaches a timeline of key COVID-19 restrictions in Canada from September 2020 to December 2021 as Exhibit “E”
. After a review of the record, this evidence was not before the decision maker.
[13] In the normal course, evidence that was not before the decision maker and that goes to the merits of the matter is not admissible in an application for judicial review in this Court (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [Access Copyright] at para 19). In Access Copyright, the Federal Court of Appeal held, at paragraph 20, that there are a few recognized exceptions to the general rule, which “exist only in situations where the receipt of the evidence by the Court is not inconsistent with the differing roles of the judicial review court and the administrative decision-maker”
. The Federal Court of Appeal listed the following three non-exhaustive exceptions:
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Where the new evidence provides general background information in circumstances where that information might assist in understanding the issues relevant to the judicial review but does not add new evidence on the merits;
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Where the new evidence brings to the attention of the reviewing court procedural defects not found in the evidentiary record of the decision maker; and
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Where the new evidence highlights the complete absence of evidence before the decision maker on a particular finding.
[14] I am not satisfied that these aforementioned parts of the Applicant’s Record and similar statements regarding her continued advertising of the business made during the hearing meet any of the Access Copyright exceptions. Admitting any of them into evidence would be inconsistent with this Court’s role to review the Second Reviewer’s Decision based upon the facts that were before them (paragraph 18.1(4)(d) of the Federal Courts Act, RSC 1985, c F-7).
[15] The only material I have considered is the material before the Second Reviewer that is included in both the Affidavit of Jaskiran Toor dated September 19, 2024, and the remaining parts of the Applicant’s Affidavit.
IV. Issues and Standard of Review
[16] This matter raises the following issues:
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Is the Second Decision reasonable?
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Was the Applicant afforded procedural fairness in CRA’s decision-making process?
[17] As for the standard of review when conducting a judicial review, it depends on the issue before the Court.
[18] The issue of procedural fairness and a breach of natural justice are determined on the basis that approximates correctness review (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 16-17).
[19] The merits of the Second Decision are reviewable on a standard of reasonableness (Vavilov at paras 10, 23-25; Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at paras 7, 39–44; Aryan at para 16).
[20] The reasonableness standard "requires that a reviewing court defer"
to a decision that is based on "an internally coherent and rational chain of analysis"
and be "justified in relation to the facts and law that constrain the decision maker"
(Vavilov at paras 85 and 99). In assessing whether a decision is reasonable, the Court will examine the reasons given by the administrative decision maker and will assess whether the decision is appropriately justified, transparent and intelligible. Both the outcome of the decision and its reasoning process must be considered in assessing whether these hallmarks are met (Vavilov at paras 15, 95, 136).
[21] In that case, a court applying the reasonableness standard does not ask what decision it would have made in place of the administrative decision maker. It is "an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers"
(Vavilov at para 13).
[22] Such a review must include a rigorous and robust evaluation of administrative decisions. However, as part of its analysis of the reasonableness of a decision, the reviewing court must take a "reasons first"
approach and begin its inquiry by examining the reasons provided with "respectful attention"
, seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion (Vavilov at para 84). The decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. "The reviewing court must refrain from reweighing and reassessing the evidence considered by the decision maker"
(Vavilov at para 125).
V. Analysis
A. The Second Decision is not unreasonable
[23] The burden is on the Applicant, as the challenging party, to demonstrate that the Second Decision is unreasonable. The Court must be satisfied “that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, transparency and intelligibility”
(Vavilov at para 100).
[24] The Applicant has not raised any serious shortcomings in the Second Decision. Flaws must be more than superficial for the reviewing court to overturn an administrative decision.
[25] The Applicant argues that the eligibility criteria for the CRB entitled the Applicant to apply for and receive the CRB benefit. The Applicant relies on the fact that she was self-employed and argues that her business was not operational due to the government restrictions and peoples’ fear of close contact due to the COVID-19 pandemic.
[26] However, paragraph 3(1)(i) of the CRB Act clearly stipulates that a person must have “sought work during the two-week period, whether as an employee or in self-employment”
[emphasis added], while paragraph 3(1)(j) stipulates that “they did not place undue restrictions on their availability for work during the two-week period, whether as an employee or in self-employment”
[emphasis added]. It is therefore not enough to be self-employed, a self-employed person must have sought work in either self-employment or as an employee and must not have placed undue restrictions on their availability for work (for example, by taking care of family members during the COVID-19 pandemic).
[27] At the hearing, the Applicant indicated that she had not realised she needed to provide evidence that she was open for business and attempting to bring business back, which she stated she had done through her Facebook account, calling prior clients, making cold calls, and through an advertisement on a hospital website that remained active throughout.
[28] However, the Second Reviewer’s note entries in the T1Case specific notepad on the April 18, 2024, state that when they spoke to the Applicant, she indicated:
(…) They were advertising their business on Facebook prior to pandemic. (…) they do not remember when they closed down their business. In March 2020, their business was completely shut down due to government restrictions as their business was in beauty industry and it was [sic] considered as essential business. They do not remember when they started working again. I advised BR to call me back with all these answers by May 2, 2024.
BR applied for CRB and CERB and think that they are eligible because they earned more than $5k income, had massive bill to pay for the radio frequency machine that they bought, and also because their business was shut down due to government restrictions. BR was not advertising their business during the applied CRB periods and were not looking for any other jobs because they were taking care of their mother and daughter (who had autism) and also because they were retired. (…)
[Emphasis added]
[29] The evidence before the Court is that the Applicant clearly stated in a telephone conversation with the Second Reviewer on April 18, 2024, that she was not advertising her business during the Relevant Periods and was not looking for other jobs as she was caring for her family members (see para 10 above the reproduction of the T1Case specific notepad entry of May 8, 2024). This is corroborated by the Applicant’s Notice of Application that included the following as grounds of the application at paragraphs 4 and 6:
4. Prior to the lockdowns for Covid-19 in a short time I began and operated a viable business, was self employed in that business, where I had build up a clientel (sic), and had made a substantial investment of more than $30,000 during the fall of 2019 when I began my business. During 2020 and 2021 I was waiting the end of the government restrictions to resume my business.
6. Each time I applied for CRB I stated in good faith NO to seeking employment because I was a business owner whom was awaiting the end of the pandemic restrictions and the resumption of my business.
[Emphasis added]
[30] The Applicant also argues that she relied on the payments of the CRB to her detriment, thus making the ensuing Second Decision on her ineligibility unreasonable.
[31] As argued by the Respondent, it is not, strictly speaking, the initial applications but rather only the Second Decision that is under review before this Court. From the record, the Second Reviewer applied the eligibility criteria and considered the entire evidentiary record in determining that the Applicant was not eligible for the CRB. Importantly, subsection 30(1) of the CRB Act reproduced above in the Relevant Legislation section provides that the Minister has the right to reconsider an application for benefits within 36 months after the benefits have been paid. It is therefore not unreasonable for the CRA to reconsider the Applicant’s eligibility at a subsequent stage. Rather, the Minister is bound to apply subsection 30(1) of the CRA Act that permits reconsideration of such applications. This is also to be expected given the nature of the CRB eligibility process was “[t]o enable Canadians to access these benefits as quickly as possible, applicants first simply attested that they met the eligibility requirements”
(James v Canada (Attorney General), 2024 FC 730 at para 24, citing Showers v Canada (Attorney General), 2022 FC 1183 at para 15).
[32] The Applicant states that she relied upon the payment of the CRB to her detriment, which makes the ensuing Second Decision unreasonable. I agree with the Respondent that the legal doctrine of legitimate expectations is limited to procedural relief and does not ensure a particular outcome:
[23] The eligibility criteria established by s 3(2) of the CRBA are statutory and non-discretionary. The Officer had no choice but to apply them. Even if Mr. Flock may have reasonably believed he would be eligible for the CRB based on his previous receipt of the CERB, the legal doctrine of legitimate expectations is limited to procedural relief and does not ensure a particular outcome. Furthermore, there can be no estoppel in the face of an express provision of a statute: the legislation is paramount (Mount Sinai Hospital Center v Quebec (Minister of Health and Social Services), 2001 SCC 41 at paras 35, 47).
(Flock v Canada (Attorney General), 2022 FC 305 [Flock-FC] at para 23, affirmed in Flock v Canada (Attorney General), 2022 FCA 1873)
[33] Although Flock-FC refers to subsection 3(2) (and not subsection 3(1)) of the CRB Act, the CRB Act prescribes the criteria, and they are statutory and non-discretionary. Even if the Applicant believed she was eligible for the CRB because she was paid the benefit, the statutory requirements were not satisfied and the doctrine of legitimate expectations does not ensure the Applicant a particular outcome as mentioned above (Flock-FC at para 23). The doctrine of legitimate expectations is not applicable here as it must not conflict with the public authority’s statutory authority and responsibility:
The doctrine of legitimate expectations, on the other hand, looks to the conduct of the public authority in the exercise of that power (…) including established practices, conduct or representations that can be characterized as clear, unambiguous and unqualified (…). The expectations must not conflict with the public authority’s statutory remit. (Citations omitted.)
(Mount Sinai Hospital Center v Quebec (Minister of Health and Social Services), 2001 SCC 41 at para 29)
B. The Officer did not breach the Applicant’s right to procedural fairness
[34] Ultimately, the question of procedural fairness comes down to whether the Applicant knew the case to be met and had a full and fair chance to respond (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 56).
[35] The Applicant claims in her memorandum of fact and law that the CRA failed to ask the proper questions in its determination of her ineligibility for the CRB. The Respondent submits the Applicant has not provided any evidence to substantiate this claim and that a review of the record demonstrates that she was given meaningful opportunities to present her case to the decision maker.
[36] The Applicant also claims that she was not asked if she was seeking “self employment”
(only if she was seeking “employment”
, which she answered truthfully “no”
), which she was, given that she remained open to operating her business. The Respondent submits that the Applicant has not provided any evidence to support this allegation that she remained open to operating her business during the Relevant Periods.
[37] I agree with the Respondent.
[38] As evidenced above in the reproduction of the T1Case specific notepad entries, the Second Reviewer discussed the element of whether the Applicant was “looking for”
work with the Applicant on two occasions and gave the Applicant additional time to provide her answers. The record shows that the information before the Second Reviewer, which was apparent from their detailed T1Case specific notepad entries, was that the Applicant’s business was not open and was not advertising its services during the Relevant Periods and that the Applicant was not looking for other jobs, as she was caring for her family members.
[39] From the record, the Applicant had the opportunity to speak with the Second Reviewer and the information discussed during the conversations was considered by the Second Reviewer. The Applicant had a full and fair chance to provide representations to the CRA and make her case before the Second Reviewer to satisfy the “looking for work criteria”
eligibility requirement before the rendering of the Second Decision. The Applicant has failed to establish any procedural unfairness on the part of the Second Reviewer.
VI. Costs
[40] The Respondent has not sought costs, and I agree that no costs should be ordered in the circumstances.
VII. Conclusion
[41] After a review of the CRB Act and the admissible documents in the record, and after considering the arguments of both parties, I find, for all the foregoing reasons, that the Second Decision is not unreasonable and was not arrived at in a procedurally unfair manner.
[42] Despite the fact that her arguments were unable to carry the day, I commend the Applicant for her poise and professionalism as a self-represented litigant during the hearing.
[43] The application for judicial review is dismissed.
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