Executive Summary: Key Legal and Evidentiary Issues

• CRA denied Huong Mai's eligibility for the Canada Emergency Response Benefit (CERB) for failing to meet the minimum $5,000 pre-tax income threshold in 2019 or in the 12 months before the date of her first application.

• Central to the dispute was a handwritten, self-authored note in Vietnamese claiming $3,000 in consulting income from the buyer of her restaurant, paid in cash and never deposited to a bank.

• Preliminary evidentiary issues arose regarding the Applicant's affidavit lacking a jurat of translation under Rule 80(2.1)(b) and the daughter's affidavit being found inadmissible under Rule 84(2).

• The Applicant relied on precedents such as Yousof, Greco, and Hayat to argue the CRA officer should have independently verified income details by contacting third parties, which the Court rejected.

• Reasonableness of the CRA's decision was assessed under the Vavilov framework, and the Court found the officer's decision to be reasonable.

• Procedural fairness arguments were dismissed as the Applicant had been given a full and fair opportunity to provide written and oral submissions to the Minister, which were considered by the CRA officer.

Background and facts of the case

Huong Mai, whose native language is Vietnamese, applied for the Canada Emergency Response Benefit (CERB) for the period starting March 15, 2020, and ending September 26, 2020. In early 2019, she had left her position as a babysitter to start her own restaurant. From early 2019 until the closure date of the restaurant on September 19, 2019, she did not pay herself a salary. She later sold her business and, for two months following the sale, acted as a consultant for the buyer while being paid $3,000 in cash that was never deposited to a bank. In 2020, the Applicant returned to babysitting until the start of the pandemic in March of that year, earning $2,500. The CRA found that the Applicant did not earn at least $5,000 of employment and/or self-employment income in 2019 or in the 12 months before the date of her first application, and ordered her to pay back the CERB money received.

The three CRA reviews

Since September 7, 2023, the Applicant's eligibility for the CERB has been reviewed three times. The first review closed on September 28, 2023, when the validation officer was unable to reach the Applicant for further information and found, based on the evidence submitted at the time, she had not earned the minimum $5,000 necessary to qualify for the CERB. The Applicant requested a second review around October 4, 2023, which was closed on July 31, 2024. This second decision made the same determination as the first albeit with more consultation with the Applicant. A third review followed the discontinuance of an application for judicial review of the second decision. The results of the third review, which agreed with the prior two decisions, were communicated to the Applicant on October 30, 2024. It is this third decision that was the subject of the present judicial review before Madam Justice Gagné of the Federal Court, considered solely on written representations at the request of the parties.

The disputed evidence

At the heart of the decision under review was the handwritten, Applicant-authored, $3,000 invoice for consulting income that the Applicant asserts having received from the purchaser of her restaurant. The evidence submitted in support of this consulting work was a handwritten note authored by the Applicant, in Vietnamese, translated into English by the Applicant's daughter, that includes the first name of the buyer, describes the nature of the work completed and the amounts earned, along with certain contact information of the buyer. The CRA officer found that the documents provided only established that the Applicant may be affiliated with the restaurant business, but did not satisfy that the cash transaction took place given that: (i) the Applicant did not incur any expenses related to the $3,000 such as motor vehicle expenses or costs associated with the lease transfer; (ii) the Applicant had no pre or post 2019 tax year proof of the $3,000; and (iii) the Applicant was unable to provide any other supporting documentation that the consulting work itself took place such as proof of payment, contract agreement, time sheet, lease recording of consultant work arrangement, proof of lease transfer to the buyer of her business, an invoice, or any communication with the buyer of her business regarding this work.

Preliminary affidavit issues

Before addressing the merits, the Court dealt with preliminary issues raised by the Respondent. The Applicant's affidavit, affirmed November 1, 2024, did not contain a jurat of translation, required by Rule 80(2.1)(b) of the Federal Courts Rules. The Applicant is, per her own written representations, neither fluent in English nor French, and the affidavit was interpreted to her by her daughter. Rule 80(2.1) requires that, when the deponent does not understand the official language in which an affidavit is written, the affidavit must: (1) be translated orally to the deponent; (2) that translation must be made by a duly sworn competent and independent interpreter; and (3) the affidavit must contain a jurat of translation. The Court chose to admit the affidavit but assigned it minimal probative value. Additionally, the affidavit of the Applicant's daughter, which included transcripts of a voice call between her and the decision maker that occurred on October 17, 2024, was found inadmissible under Rule 84(2). The call and the transcripts occurred before the affidavits were filed, and it was relevant at the time of filing the Applicant's initial affidavit. The Applicant had obtained neither the consent of the opposing parties nor leave of the Court to file additional evidence after cross-examination.

The Applicant's arguments and the Court's analysis

The Applicant argued that the decision was not responsive to the evidence put to the officer, and that the officer went counter to CRA procedure in disregarding the handwritten invoice. She relied on Yousof v Canada (Attorney General), 2023 FC 329, where Justice Aavi Yao-Yao Go stated that the CRA officer was at liberty to contact the applicant's client to confirm the details in the invoice. The Applicant also relied on Greco v Canada (Attorney General), 2024 FC 1520, where Justice Allyson Whyte Nowak accepted that detailed invoices could constitute acceptable proof of self-employment income. She further cited Hayat v Canada (Attorney General), 2022 FC 131, in support of her contention that the CRA officer could have looked up the buyer of the restaurant in the CRA's own system to verify her submissions.

The Court disagreed with the Applicant on all points. Applying the reasonableness standard from Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, Justice Gagné noted that the burden is on the applicant to show that the decision itself is unreasonable, and the Applicant failed to meet this burden as she was unable to prove, on a balance of probabilities, that she met all the criteria to avail herself of the CERB program. The Court distinguished Yousof, noting that in that case the respondent had conceded that the decision was unreasonable, making procedural fairness the only issue before the Court. In Yousof, the applicant had a long history of self-employment supported by detailed invoices and had submitted invoices with names, phone numbers, and emails of his clients to the CRA, and the only reason the officer found the applicant ineligible was his inability to produce cheques and bank statements to verify that he deposited the self-employment income. By contrast, the Applicant's document was not a detailed invoice but, by her own admission, a handwritten note she kept for herself for accounting purposes, written in a foreign language and containing only the first name of the client. The Court emphasized that contacting third parties was simply a mere possibility in that specific context, not in any way an obligation imposed on the officer. The self-reporting principle underlying Canada's tax system requires individuals to report their income to the CRA while keeping records and books of account sufficient to enable that determination, and the CRA guideline entitled "Confirming COVID-19 Benefits Eligibility" expressly outlines that a combination of acceptable proof will generally be required to substantiate the income.

Procedural fairness

The Applicant also raised a procedural fairness argument, contending that finding the decision unreasonable and remitting the file back to the CRA for another review would be procedurally unfair. The Court agreed with the Respondent that this issue of procedural fairness was not properly before the Court. The Court noted that underlying the duty of procedural fairness is the right to be heard, and that the Applicant was given a full and fair opportunity to provide written and oral submissions to the Minister, which were considered by the CRA officer in rendering his decision.

Ruling and outcome

The Federal Court dismissed the application for judicial review, finding the decision by the CRA officer to be reasonable. The Court also declined the Applicant's request for leave to file a complaint with the Office of the Taxpayers' Ombudsperson, as the OTO is an independent entity and it is outside the scope of the Federal Court to grant such leave. No costs were granted. The judgment, rendered by Madam Justice Jocelyne Gagné on February 9, 2026, effectively upheld the CRA's determination that the Applicant was not eligible for the CERB and the order requiring her to pay back the CERB money received, though the exact amount of the repayment was not specified in the decision.