Docket: T-1092-25
Citation: 2025 FC 1870
Toronto, Ontario, November 25, 2025
PRESENT: The Honourable Mr. Justice A. Grant
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BETWEEN: |
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DEYSSY OLGA CHUCTAYA LUQUE |
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Applicant |
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and |
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ATTORNEY GENERAL OF CANADA |
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Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] The Applicant, Deyssy Olga Chuctaya Luque, seeks judicial review of a decision by the Canada Revenue Agency [CRA] denying her eligibility for the Canada Emergency Recovery Benefit [CRB] for 10 out of the 16 periods for which she had received the benefit.
[2] While I sympathize with the Applicant, and commend her determination in bringing her case forward, I believe that this application must be dismissed.
II. BACKGROUND
A. Facts
[3] The CRB was an income support measure instituted during the COVID-19 pandemic. It was available to eligible individuals in two-week eligibility periods between September 27, 2020 and October 23, 2021. Relevant to this application, the program was only available for those whose average weekly employment income was reduced by at least 50% due to the pandemic. The comparator period that the CRA used to determine average weekly income was either the previous taxation year or the twelve-month period preceding the application: see paragraph 3(1)(f) of the Canada Recovery Benefits Act, SC 2020, c 12, s 2 [the Act].
[4] The Applicant applied for and received the CRB for a total of 16 periods, between September 27, 2020 and May 8, 2021.
[5] In September 2022, the CRA initiated an audit of the Applicant’s CRB eligibility. As part of this review, the CRA requested additional supporting documents, but the Applicant was out of the country at the time and was not able to provide any supporting materials before the CRA rendered its decision.
[6] On June 19, 2023, the CRA informed the Applicant that she was not eligible for CRB for any of the periods for which she had applied and, therefore, she would be required to repay $16,000.
[7] On July 20, 2023, the Applicant requested a review of the CRA’s decision. At this point, she was able to provide supporting documentation.
[8] Based on the review, the CRA modified its initial determination, concluding that the Applicant had been eligible for four of the periods of CRB and, therefore, her amount owing was reduced to $12,000. This decision was communicated to the Applicant on April 11, 2024.
(1) First Application for Judicial Review
[9] On May 10, 2024, the Applicant filed an application for judicial review of the CRA’s decision. The Applicant alleged that the CRA’s decision was unreasonable because it failed to consider the Applicant’s unique circumstances, notably: i) that, as an international student, her 2019 income was kept low due to regulatory constraints on her hours of work; and ii) the pandemic significantly reduced the number of hours she could work in 2020. The Applicant also submitted that the CRA’s approach to calculating eligibility was unreasonable because it considered gross rather than net income, and it failed to account for inflation or changes to the minimum wage.
[10] In November 2024, the Applicant accepted an offer from the Respondent to have the matter reconsidered by a new CRA officer. According to the terms of the settlement agreement, the new reviewing officer would be advised that the Applicant wished to provide additional information related to her circumstances, and she would be given an opportunity to identify any calculation errors that she had noted in her judicial review materials.
(2) Decision Under Review
[11] The CRA officer who conducted the redetermination spoke with the Applicant by phone on multiple occasions between December 2024 and February 2025. They discussed the Applicant’s concerns about her particular circumstances and how her eligibility had originally been assessed. The Applicant also provided additional documentation to establish her income for the relevant comparator periods. The reviewing officer explained that, while they understood the contextual issues the Applicant was raising, the CRB program was strictly based on income calculation.
[12] In its subsequent decision, the CRA again modified its determination, this time determining that the Applicant had been eligible for a total of 6 out of 16 of the CRB periods for which she had applied.
III. ISSUES and STANDARD of REVIEW
[13] The Applicant argues that the CRA officer erred in refusing her request to consider factors other than her income, and that the redetermination process was unfair.
[14] The parties agree that the standard of review on the substance of the CRA’s decision is reasonableness (He v Canada (Attorney General), 2022 FC 1503 at para 20; Lajoie v Canada (Attorney General), 2022 FC 1088 at para 12).
[15] 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 it was fair: Bharadwaj v Canada (Citizenship and Immigration), 2022 FC 1362 at para 8; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 (CanLII), at paras 49-56.
[16] The level of procedural fairness owed to CRB applicants is on the low end of the spectrum: Cozak v Canada (Attorney General), 2023 FC 1571 at para 17.
IV. ANALYSIS
A. Preliminary Issue: Document Not Before CRA Reviewing Officer
[17] The Respondent points out that the Applicant has included in her record an exhibit, namely a letter from her godparents, that was not before the CRA reviewing officer. The general rule is that the record considered by a court on judicial review is limited to those documents that were before the administrative decision-maker. There are exceptions to this rule, but the Applicant has not established that any of those exceptions apply here. As such, I will not consider this document in determining this application for judicial review. As I noted to the Applicant at the hearing, however, even had I considered this document, it could have no bearing on the outcome of this application.
B. The Decision Was Reasonable
[18] The Applicant, who has represented herself throughout these proceedings, has put forward her best case; her position was articulately communicated, and I am sympathetic to her situation. However, I have concluded that the CRA decision was reasonable in light of the relevant factual and legal constraints.
[19] The Applicant submits that the CRA’s decision was unreasonable because the officer failed to consider important facts and context, specifically, the impact of her immigration status and COVID-19 on her finances during the eligibility comparator periods.
[20] However, on my review of the record, it is clear that the officer did, in fact, consider the facts that were relevant to the determination. The Applicant may disagree with the conclusions that the officer drew from these facts, but this does not mean that they were not considered, and nor does it render the decision unreasonable. As one indication that the CRA did, in fact, consider the information provided by the Applicant, I reproduce the following from the officer’s notes:
BR [the Applicant] was upset and worried that her concerns outlined in her application for judicial review, primarily regarding the restrictions placed on her working hours, and her restrictive student work permit limiting her earnings prior to the pandemic would not be considered. I assured BR I understood her concerns and how they impacted her eligibility, but advised that the procedure for calculating the income reduction criteria is the same for all applicants and must be followed. I assured BR that no calculations or decision had been made yet as I wanted to ensure she had a fair opportunity to provide the missing self-employment information.
BR was concerned that with or without the self-employment information, she will still be ineligible for several periods as her other concerns were not being considered above the math involved in the calculations. Again I assured BR I had not completed any calculations, but advised if the review does result in any denied periods, she will have the opportunity to apply for an additional judicial review. Reassured BR that I would hold case until the extended deadline, and if she has any further questions or concerns to contact me. BR understood and ended call.
[21] At root, it appears that what the Applicant was seeking from the CRA was an exercise in discretion in interpreting paragraph 3(1)(f) of the Act, based on her personal circumstances. The problem with this argument is that the CRA was not entitled to exercise this kind of discretion in assessing eligibility under this provision of the Act. On the contrary, eligibility for the CRB was determined through the application of specific criteria set out at paragraph 3(1)(f), which acted as a clear constraint on the range of outcomes available to CRA officers. As my colleague Justice Diner noted in a case cited by the Respondent (Coscarelli v Canada (Attorney General), 2022 FC 1659):
[28] Here, I empathise with Ms. Coscarelli’s situation… However, neither those officers, nor I, can reconstruct the law. There is no fairness or relief provision in the CRB Act as there is in other legislation (including in the Income Tax Act) that might have otherwise provided a concession for the applicant. As explained during the hearing, in these circumstances where there has been no allegation of any constitutional violations or other flaw alleged in the legislation, the Court is only able to interpret the CRB Act, not rewrite it.
[22] Put more directly, the eligibility criteria for the CRB were established by statute, and the CRA has no discretion to change them: see Saadi v Canada (Attorney General), 2024 FC 648 at para 2 [Saadi].
[23] As the Respondent notes, the officer’s determination was based on a calculation methodology that has been repeatedly upheld by this Court, and there are no relief provisions in the Act that would permit CRA officers to consider any other factors. As was required, the CRA officer performed the relevant calculation based on the comparator period that was most beneficial to the Applicant. The Applicant has not established that there were any errors in this calculation and, as such, there is simply no basis on which to conclude that the ensuing decision was unreasonable: Saadi at para 17.
C. The Decision Was Procedurally Fair
[24] This gets to the Applicant’s other main submission, which is that the redetermination process was procedurally unfair for not complying with the terms of the settlement agreement associated with the previous application for judicial review. The Applicant appears to have interpreted the terms of that agreement as requiring the CRA to incorporate her contextual and humanitarian arguments into the redetermination.
[25] However, this interpretation is not borne out by the terms of the settlement agreement, which is in the record before me. Rather, as noted above, the agreement merely confirmed that the Applicant would be allowed to provide additional information in support of the redetermination, including the submissions she made on her initial application for judicial review. The agreement further stipulated that the CRA would review and consider those submissions. This is precisely what was done. In their notes, the decision maker summarized the evidence on file and referenced the Applicant’s particular circumstances. As the Respondent argues, the Applicant has not pointed to any specific information that was relevant to the determination and was ignored by the decision maker.
[26] Furthermore, irrespective of the settlement agreement, the only information the CRA was entitled to consider when determining the CRB eligibility was information related to the Applicant’s net income for the relevant periods. Thus, while it was open to the Applicant to provide submissions on other issues, it was neither unreasonable, nor unfair for the officer to disregard this information in performing the relevant calculations. It is also clear from the record that the redetermining CRA officer explained to the Applicant that they could only consider financial eligibility criteria in rendering their decision.
[27] Finally, the Applicant argues that a concern arises because in three different reviews, the CRA has now come to three different eligibility determinations. I understand the Applicant’s concern and frustration, but crucially, the determination under review appears to have been based on enhanced information provided by the Applicant, which influenced the calculations. I also pause to note here that each recalculation further benefitted the Applicant. Because the decisions were based on somewhat distinct, if mostly overlapping information, it is not unfair that each resulted in a slightly different outcome. In any event, the only decision under review in this matter was the reconsideration of the second review. For the reasons set out above, I have concluded that there is no basis for the Court’s intervention in this decision.
V. CONCLUSION
[28] For the foregoing reasons, I must dismiss this application for judicial review. The Respondent has not sought costs in this matter, and I agree that no costs should be awarded.
[29] Finally, I would note the following. While the Applicant has not been successful on this application for judicial review, she appears to have acted in good faith throughout these proceedings and there is no indication that she ever intended to deceive the CRA. Furthermore, while the Applicant has now been found eligible for 6 of the 16 weeks for which she received the CRB, there were other months where she was ineligible by the most minimal of amounts. For example, it appears that the Applicant’s income exceeded the established threshold by $13.36 for one of the periods in which she was found ineligible, and she never earned more than $350 over the threshold for any of the periods.
[30] Given the circumstances of the pandemic and the complex CRB eligibility criteria, it is no surprise that many individuals such as the Applicant may have, in good faith, misunderstood their eligibility. Indeed, nothing makes this clearer than the fact that the CRA itself has come to different conclusions on the Applicant’s eligibility based on largely, if not entirely, the same information. If there were any discretion in the calculation of amounts owing, I would expect it would have been exercised in the Applicant’s favour. But this is not the case and, as such, I can only find that the CRA decision was reasonable.
[31] However, I would also point out that in the decision under review, the CRA indicated as follows:
We understand that it may not be possible for you to pay your debt immediately and in full. We’re here to help. The CRA offers various solutions tailored to your personal situation. [emphasis added]
[32] I would expect the CRA to adhere to the representations contained in this paragraph, and to exercise flexibility related to the quantum and/or timing of any repayments required of the Applicant, particularly given the circumstances of her ineligibility. This would not only be consistent with the language contained in the decision letter, but it would also reflect the humanitarian purpose underlying the federal government’s response to the COVID-19 pandemic.
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