Executive Summary: Key Legal and Evidentiary Issues

• Applicant received both CERB ($2,000) and EI-ERB ($500 per week for four weeks) for the same period from March 15 to April 11, 2020, constituting a "double claim"

• Legislation under the CERB Act and Employment Insurance Act prohibits simultaneous receipt of both benefits for the same time period

• CRA's Second Review decision requiring $2,000 repayment was challenged on grounds of unreasonableness due to alleged confusing government communications during the pandemic

• Onus rests on claimants to inquire into eligibility criteria for COVID-19 benefits and to prove those criteria have been met

• Eligibility criteria under section 6 of the CERB Act are statutory and non-discretionary, leaving no room for waiver based on confusion or hardship

• No estoppel can exist against an express statutory provision, as the legislation is paramount

Background and facts of the case

Nicholas Konarowski was laid off indefinitely from his employment on March 15, 2020, during the COVID-19 pandemic. He applied for Employment Insurance on March 17, 2020, and subsequently applied for CERB benefits on April 7, 2020. On April 15, 2020, he received a $2,000 payment which he deposited on April 29, 2020. He states that at that time, he was not aware this was a CERB payment for the period of March 15, 2020 to April 11, 2020, as the payment was simply labelled as being from Service Canada and did not directly say that it was CERB related. On May 22, 2020, he received a $4,000 payment. He states that at the time he was not aware that this was an EI-ERB payment for periods that also included March 15, 2020 to April 11, 2020.

CRA's determination and review process

The Applicant was eventually flagged by the CRA as a "double claimant," a person who applied for both EI benefits and another emergency benefit such as CERB or Canada Recovery Benefit. During their First Review, the CRA determined he had received both CERB and EI payments for an overlapping period. By Notice of Redetermination for COVID-19 benefits issued September 8, 2022, the Applicant was informed he was not eligible for CERB for the period March 15, 2020 to April 11, 2020 and was required to repay $2,000. The Applicant disputed this finding in two phone calls and a letter to the CRA in May 2023, triggering the CRA's Second Review. The Second Reviewer sent a request to the Department of Employment and Social Development Canada to manually confirm the double claim and received confirmation that the Applicant had also received $500 of EI-ERB for each of the four weeks from March 15, 2020 to April 11, 2020. By letter dated October 22, 2024, the Officer again found the Applicant ineligible for CERB.

The Applicant's arguments

The Applicant argued the Decision was unreasonable because at the time he applied for and received both sets of benefits there was confusing and conflicting information from the Government of Canada about CERB benefits and eligibility. He faulted the government for a lack of due diligence and poor communication between the CRA and Service Canada, and asserted that the government should have realized he had already received benefits for that time period and should not have sent him the other benefit payment. He noted the time he received the benefits was a stressful one, and that repaying the $2,000 would be a financial hardship. He requested the Court order a "waiver" of the repayment, arguing that since mistakes were made on both sides, he should not be the one to bear the burden of having to repay the $2,000.

Legislative framework governing eligibility

The CERB Act establishes that a "worker" defined in section 2 may be eligible for an income support payment if they meet the criteria under section 6(1) of the Act. However, subparagraph 6(1)(b)(ii) specifically provides that a worker is ineligible for such payments if they receive benefits defined in the EI Act subsection 2(1) or an employment insurance emergency response benefit as referred to in section 153.7. Under subsection 12(1) of the CERB Act, where it has been determined that a person has received an income support payment to which they are not entitled, they are required to repay that payment. Analogous provisions in the Employment Insurance Act similarly hold that a claimant is ineligible for EI-ERB if they receive CERB benefits, as set out in paragraph 153.9(2)(c).

The Court's analysis and ruling

The Federal Court found the Decision reasonable. Justice Thorne noted that while the Applicant may initially have been confused or not understood that he had received both CERB benefits and EI benefits for the period of March 15, 2020 to April 11, 2020, the evidence clearly establishes that this was the case, and the Applicant has now conceded this fact. The Court emphasized that jurisprudence is clear that with respect to COVID-19 benefits, the onus is on the claimant to inquire into the eligibility criteria for each benefit, and to prove that these criteria have been met. The eligibility criteria established by section 6 of the CERB Act are statutory and non-discretionary, and the Officer had no choice but to apply them in the circumstances. The Court also noted that "there can be no estoppel in the face of an express provision of a statute: the legislation is paramount."

The application for judicial review was dismissed without costs. The Court acknowledged the Applicant spoke of his financial circumstances and the difficulties experienced during the pandemic, as well as the challenges that repaying the benefit will pose. In these circumstances, Justice Thorne stated he 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. The Respondent clarified they would not be seeking costs, and the Court agreed that an award of costs against the Applicant would not be appropriate. No costs were awarded to either party.