Date: 20241011
Docket: T-275-24
Citation: 2024 FC 1614
Toronto, Ontario, October 11, 2024
PRESENT: The Honourable Mr. Justice A. Grant
BETWEEN: |
TODD ARCHER |
Applicant |
and |
ATTORNEY GENERAL OF CANADA |
Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] The Applicant, Mr. Todd Archer, is seeking judicial review of a decision dated January 17, 2024 [the Decision] whereby the Canada Revenue Agency [CRA] found him ineligible for the Canada Emergency Response Benefit [CERB]. The CRA Agent found Mr. Archer ineligible because he had not stopped working for 14 consecutive days, for reasons related to COVID-19.
[2] This application for judicial review is dismissed. It was reasonable, based on the minimal medical documentation provided by the Applicant, and based on the applicable law, for the CRA to conclude that the Applicant was not eligible for the benefits that he had received. The CRA Agent’s reasoning was rational, transparent, and justified. Considering the deference owed in these circumstances, there are no errors warranting judicial intervention.
II. BACKGROUND
A. The CERB eligibility requirements
[3] The CERB was one of several measures introduced by the federal government starting in 2020 to help address the economic repercussions caused by the COVID-19 pandemic. It consisted of targeted monetary payments designed to provide financial support to workers who suffered a loss of income due to the pandemic, and who could not benefit from the protection offered by the usual employment insurance plan. The CRA is the federal agency responsible for administering the program on behalf of the Minister of Employment and Social Development.
[4] The CERB was available for seven four-week periods between March 15, 2020 and September 26, 2020 for eligible employees and self-employed workers who had suffered a loss of income due to the COVID-19 pandemic.
[5] The eligibility criteria for the CERB are set out in the Canada Emergency Response Benefit Act, SC 2020, c 5, s 8 [CERB Act], excerpted in Annex “A”
, below. Among other requirements, paragraph 6(1)(a) of the CERB Act states:
6 (1) A worker is eligible for an income support payment if
(a) the worker, whether employed or self-employed, ceases working for reasons related to COVID-19 for at least 14 consecutive days within the four-week period in respect of which they apply for the payment;
B. The Applicant’s work history and benefits applications
[6] The facts of this case are somewhat unusual in that Mr. Archer, who seeks to challenge a CRA decision related to his CERB eligibility, is also a CRA employee whose responsibilities have included answering calls from taxpayers on COVID-19 benefits.
[7] On September 11, 2020, the Applicant applied for and received the CERB for Period 7, running from August 30, 2020 to September 26, 2020.
[8] At some point before August 31, 2020, the Applicant had an appointment with his doctor. Though he could not recall why he had made an appointment, the Applicant did have an underlying respiratory condition and, “in the context of COVID-19”
, he was prescribed some medication. There is no indication in the record what this medication was. However, after taking it, Mr. Archer started experiencing side effects and became unwell.
[9] On August 31, 2020, the Applicant (who was working remotely) worked for 2 hours and 15 minutes, and then took sick leave without pay until September 13, 2020.
[10] On September 4, 2020, the Applicant’s doctor issued a handwritten note indicating that Mr. Archer should be able to return to work on September 14, 2020. The note does not reference COVID-19, or why Mr. Archer was directed to take the medication.
[11] The Applicant returned to work on September 14, 2020.
[12] Mr. Archer’s file was selected for an eligibility review under the CRA’s review program for employees who claimed COVID-19 benefits while working for the CRA. On August 30, 2023, the CRA sent a letter to the Applicant informing him of the review and indicating the list of supporting documents to provide. The letter stated, among other things, “For your first CERB application, you must have had a complete work stoppage for a period of at least 14 days in a row during the four week CERB period”
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[13] On September 11, 2023, the Applicant provided the CRA with his record of employment, showing the last date paid as August 31, 2020, and his bank statements.
[14] On September 28, 2023, the CRA informed the Applicant that he did not meet the CERB eligibility criteria, because a) he had earned more than $1,000 of employment income during the period; and b) he did not stop working or have his hours reduced for reasons related to COVID-19.
[15] In early October 2023, the Applicant contacted the CRA twice to enquire about the first review decision and to request a second review. In support of this request, he provided on October 26, a screenshot of an email confirming that he had been on sick leave without pay from September 1, 2020 until September 13, 2020.
[16] On December 5, 2023, the CRA issued a second decision letter determining that the Applicant was not eligible for the CERB because he had earned more than $1,000 of employment income during the period. On the same day, Mr. Archer contacted the CRA by phone and discussed the result with several CRA agents. On December 8, during another phone call with the CRA, Mr. Archer was advised to submit documents stating the reasons for his disagreement with the second review, and to request a further review. He did so on December 10, and included the following documentation:
a)A letter expressing the reasons for his disagreement;
b)The CRA’s Taxpayer Bill of Rights Guide; and
c)Screenshots of emails confirming that on August 31, 2020, the Applicant worked 2.25 hours and took 5.25 hours as sick leave without pay.
[17] On December 12, the Applicant provided the CRA with a document containing various links to CRA webpages.
[18] On December 14, 2023, the CRA issued a revised second decision letter, informing him that the letter sent on December 5, 2023 had been sent in error. The revised second review decision determined that Mr. Archer was ineligible for CERB because a) he did not cease working for reasons related to COVID-19 for at least 14 consecutive days during the applicable period; and b) he had earned more than $1,000 of employment income during the applicable period. The same day, the Applicant contacted the CRA by phone to discuss the revised second review decision. He was informed that a third review was opened on December 10, 2023, while the revised second decision letter was being finalized.
[19] On January 4, 2024, the CRA Agent assigned to the third review contacted the Applicant by phone. During the conversation, the Applicant stated that:
a)In light of the Applicant’s underlying health conditions, the Applicant voiced concerns regarding the potential impact of the COVID-19 pandemic on his health to his doctor.
b)The Applicant’s doctor then suggested to take a certain medication as a preventative measure for COVID-19, which he did.
c)On the morning of August 31st, 2020, the Applicant was at work but felt ill from the side-effects of a medication he took earlier, which made him leave work for the rest of the day.
d)The Applicant contacted his doctor and obtained a note stating that he will be out of the office until September 14th, 2020, at which time the doctor would reevaluate the Applicant’s condition.
e)The Applicant was not sick because of COVID-19, and he has not been in contact with COVID-19.
f)The Applicant had no more paid sick days, so he had to take a leave without pay starting in the morning of August 31st, 2020, to September 14th, 2020.
During the same phone call, the CRA Agent expressed the concern that the Applicant did not meet the 14 consecutive day criterion and that his leave without pay needed to be for COVID-19 related reasons. The CRA Agent asked for documentation from the Applicant’s doctor, to support the review.
[20] The same day, Mr. Archer sent in the note from his doctor, dated September 4, 2020. The note stated: “[t]he above patient has been improving on his meds and should be able to return to full-time work on September 14th, 2020”
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[21] On January 5, 2024, the Applicant also sent the CRA a letter of explanation. The letter stated that that he does not remember the exact reason for the doctor’s visit, that he cannot speak as to the nature of the medication that he took, and that he was likely aware of the medication’s side effects.
C. Decision under Review
[22] By letter dated January 17, 2024, the CRA Agent informed the Applicant that he was not eligible for Period 7 of the CERB, because he did not stop working or have his hours reduced for reasons related to COVID-19 for a 14-day consecutive period within the four-week application period. This is the decision under review.
[23] In the Third Review Report, which forms part of the reasons (Aryan v. Canada (Attorney General), 2022 FC 139 at para 22), the CRA Agent canvassed the documents received throughout the review process. The Agent also considered the Applicant’s argument that he had been off work for 14 consecutive days due to COVID-19 reasons and had not made $1,000 of employment income during that time.
[24] In concluding that Mr. Archer was not eligible, the Agent noted that the Applicant did not have COVID and was not exposed to COVID, and that the medication Mr. Archer took was voluntary, precautionary, and preventative. The CRA Agent also noted that the doctor’s note submitted in support of the Applicant’s sick leave without pay did not mention COVID or COVID-related reasons. The CRA Agent concluded that “if TP chose to take medication as precautionary measure but at the time did not have covid or known exposure, This [sic] is a choice and not a loss or reduction of employment hours directed related to pandemic”
.
III. ISSUES
[25] The sole issue to be determined on this application is whether the Decision under review is reasonable. Mr. Archer articulates a number of reasons why, in his view, the Decision is unreasonable.
IV. LEGISLATIVE SCHEME
A. CERB Act
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V. STANDARD OF REVIEW
[26] 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 [He]; Lajoie v Canada (Attorney General), 2022 FC 1088 at para 12).
[27] In conducting a reasonableness review, a court “must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified”
: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 15 [Vavilov]. It is a deferential standard, but remains a robust form of review and is not a “rubber-stamping”
process or a means of sheltering administrative decision-makers from accountability (Vavilov at para 13).
[28] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to that facts and law that constrain a decision-maker”
(Vavilov at para 85). Reasonableness review is not a “line-byline treasure hunt for error”
(Vavilov at para 102). Any flaws or shortcoming relied upon must be sufficiently central or significant, to render the decision unreasonable (Vavilov at para 100).
VI. ANALYSIS
A. Preliminary Matter: New Evidence
[29] The Respondent submits that the Applicant has included the following exhibits in his Record that were not before the CRA Agent as part of the decision-making process:
a)A copy of the Service Canada’s webpage entitled
“Questions and Answers on the Canada Emergency Response Benefit”
dated February 24th, 2024, and lastly updated on August 2nd, 2022 (Exhibit C);b)An unsigned retirement notice from Dr. Joseph Yemus in English and in French, dated July 12, 2021 (Exhibit S); and
c)A copy of the Service Canada’s webpage entitled
“Sickness benefits”
dated February 24th, 2024, and lastly updated on October 27, 2023 (Exhibit T).
[30] It is well established that when an application for judicial review is made to the Court, the Court must limit itself to the evidentiary record before the administrative decision maker: Maltais v. Canada (Attorney General), 2022 FC 817 at para 21. The three exceptions to this rule are set out in Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 128 at paras 97–98. In brief, new evidence may be admitted where it (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.
[31] At the hearing into this matter, Mr. Archer conceded that the retirement notice from his doctor was not a part of the record before the CRA Agent, and does not fall into one of the exceptions outlined above. As such, Exhibit “S”
will be disregarded in my consideration of this application.
[32] With respect to the other two impugned exhibits, Mr. Archer acknowledges that they were not before the CRA Agent, but argues that they do provide general background that may be of assistance to the Court. While I agree that the webpages at issue do provide some general background, I do not find them to be of assistance, as my findings below are fact-based and are related to the specific circumstances of the Applicant. In other words, the webpages are of no assistance because my decision below does not turn on any particular interpretation of the CERB regime that may be assisted by the explanatory notes contained in the impugned documents. While nothing turns on it, I will not consider these documents in my review of the Agent’s decision.
B. The Decision was Reasonable
[33] The Applicant makes a number of submissions, largely related to alleged discrepancies between CERB eligibility in statute, in internal CRA documents, in public guidance, and in application by CRA agents. The main thrust of the Applicant’s argument, as I understand it, is that the CRA Agent’s Decision was unreasonable because she misapprehended the CERB eligibility guidelines in two ways. First, by requiring the Applicant to have completely stopped work for 14 consecutive days during the relevant CERB period; and second, by finding that his reason for taking sick leave without pay did not constitute a reason related to COVID-19.
[34] Because the CERB Act requires an applicant to have stopped working for reasons related to COVID-19, the second CRA finding, if reasonable, is a determinative issue.
[35] I disagree with the Applicant’s submission that the CRA Agent erred in finding that his reasons for stopping work did not fall within the range of “reasons related to COVID-19.”
Respectfully, the Applicant has failed to demonstrate a reviewable error and his submissions amount to a request for me to reweigh the evidence that was before the Agent. This is not the role of a court on judicial review. The CRA Agent’s reasons were intelligible, rational, and justified.
[36] The CRA Agent found that Mr. Archer had failed to establish that his sick leave without pay constituted a reason related to COVID-19 because it arose due to side effects from a discretionary, precautionary, and preventative – rather than curative – medication intended to mitigate possible impacts from any COVID-19 exposure. She noted that the only documentation provided in support of the Applicant’s sick leave without pay was a doctor’s note that did not mention COVID-19. She ultimately determined that “if TP chose to take medication as precautionary but at the time did not have covid or known exposure, this is a choice and not a loss or reduction of employment hours directly related to pandemic.”
[37] I have carefully considered this finding, together with the minimal medical documentation submitted by the Applicant. In the end, I have concluded that the Agent’s conclusions represent a rational chain of analysis that is firmly rooted in the evidentiary record. Keeping in mind the deference owed to decision-makers who are acting within their core legislative purpose, I see no basis on which to conclude that the Agent’s decision, and the reasons provided in support of that decision, were unreasonable.
[38] One of the Applicant’s submissions is that the CRA guidelines for assessing whether a reason is “related to COVID-19”
are vague. While there is some truth to this statement, this fact does not alter the deference afforded to decision-makers acting within their legislative purview: Vavilov at paras 85, 109.
[39] There is, to date, minimal judicial commentary on the breadth of the phrase “for reasons related to COVID-19”
, as found at paragraph 6(1)(a) of the CERB Act. In Mitchell v Canada (Attorney General), 2023 FC 858, my colleague Madam Justice Go considered the case of a woman who had been put on COVID leave because of her underlying health condition. While she decided the matter on other grounds, she noted at para 25 that:
It remains to be seen, as a benefit-conferring piece of legislation, whether the requirement that a person ceases working for reasons related to COVID-19 under paragraph 6(1)(a) of the CERB Act extends to individuals like the Applicant, who has medical conditions that compromise their health and make them particularly vulnerable during the pandemic.
[40] However, even on a broad interpretation of the phrase, I find that the CRA decision in this matter was reasonable. As noted above, and in the Agent’s Third Review Report, the Applicant submitted little medical documentation. For example, there was no information before the CRA Agent related to the Applicant’s pre-existing medical condition that he asserts left him vulnerable to COVID-related complications. There is no documentation related to his visit to the doctor, which led to the prescription that made him sick and caused him to miss work. When the CRA Agent followed up with the Mr. Archer to get more information, he acknowledged that he did not remember exactly why he had gone to the doctor.
[41] Further, it is completely unclear from the record what medication was prescribed to Mr. Archer, and how it bore any connection to COVID-19. The Applicant was unable to provide any detail about the medication at all, and did not provide any supporting documentation from his doctor or the pharmacist who presumably filled his prescription. It also remains a mystery what exactly the medication in question was intended to do.
[42] As noted above, the only documentation provided by the Applicant was a relatively generic note from his doctor that did not mention COVID-19, and simply stated (insofar as the handwriting can be discerned) that the Applicant has been improving on his meds and should be able to return to full-time work on September 14, 2020.
[43] As noted by my colleague Justice Gascon in He, the Canadian tax system is based on the principles of self-assessment and self-reporting. Furthermore, under subsection 5(3) of the CERB Act, individuals applying for the CERB are responsible for providing any information required of them in respect of the application. Section 10 of the CERB Act states that the CRA may, “for any purpose related to verifying compliance or preventing non-compliance with this Act, . . . require that any person provide any information or document within the reasonable timeline that is stated in the notice”
.
[44] As Justice Gascon further found in He, there is no doubt that the onus is on CERB applicants to establish that they meet, on a balance of probabilities, the criteria of the enabling legislation: He at para 25, citing Cantin v Canada (Attorney General), 2022 FC 939 at para 15 and Walker v Canada (Attorney General), 2022 FC 381 at para 37).
[45] Keeping in mind that it is the taxpayer’s responsibility to establish their eligibility for the CERB, I find that it was entirely reasonable for the CRA Agent to conclude that Mr. Archer had failed to discharge this onus, based on the information that he had put forward.
[46] In order to be eligible for the CERB, it was a requirement for Mr. Archer to establish that he had ceased work for reasons related to COVID-19. I have found that it was reasonable for the CRA Agent to have concluded that Mr. Archer had failed to establish that his absence from work was related to COVID-19. As noted above, this finding is determinative of the application and, as a result, I need not consider Mr. Archer’s further argument related to whether he was required to completely cease work during the applicable period.
VII. CONCLUSION
[47] The application for judicial review is dismissed. The Applicant has not demonstrated that the CRA Agent’s decision was unreasonable. The Decision is based on internally coherent reasoning that is both rational and logical, and is responsive to the evidence that was before the decision-maker. There are no errors warranting judicial intervention.
JUDGMENT in T-275-24
THIS COURT’S JUDGMENT is that:
The application for judicial review is dismissed.
There is no order as to costs.
"Angus G. Grant"
Judge
ANNEX A
Canada Recovery Benefits Act
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
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T-275-24 |
STYLE OF CAUSE:
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TODD ARCHER v ATTORNEY GENERAL OF CANADA |
PLACE OF HEARING:
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Montréal, QUébec
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DATE OF HEARING:
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September 19, 2024
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JUDGMENT AND REASONS: |
GRANT J.
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DATED:
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october 11, 2024
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APPEARANCES:
Todd Archer |
For The Applicant (SELF-REPRESENTED) |
Anton Sokolov Katherine Savoie |
For The Respondent |
SOLICITORS OF RECORD:
Attorney General of Canada Montréal, Québec
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For The Respondent |