Executive Summary: Key Legal and Evidentiary Issues

• Aziza Ashurova was found ineligible for the Canada Recovery Caregiving Benefit (CRCB) because she was not employed or self-employed immediately before staying home to care for her newborn, as required under subparagraph 17(1)(f)(i) of the CRBA.

• Her 73-page Notice of Constitutional Question was rejected for improper service on provincial and territorial attorneys general, inadequacy of grounds, and for being raised for the first time on appeal.

• Evidence not before the original CRA decision-maker was properly excluded by the Federal Court, as judicial review is not a de novo proceeding.

• Procedural fairness claims were dismissed, including the allegation that the CRA conducted a telephone interview without an interpreter, since the appellant and her lawyer had consented to proceed without one.

• Constitutional and Charter arguments lacked an adequate factual foundation and were deemed too vague to sustain a challenge.

• The appeal was dismissed with costs awarded to the respondent, the Attorney General of Canada.

Background and facts of the case

Aziza Ashurova applied for the Canada Recovery Caregiving Benefit (CRCB), a benefit established under the Canada Recovery Benefits Act, S.C. 2020, c. 12, s. 2 (the CRBA). Under subparagraph 17(1)(f)(i) of the CRBA, to be entitled to the CRCB, a claimant must have lost work or self-employed hours to care for a child. On November 20, 2023, a Canada Revenue Agency (CRA) officer determined that Ms. Ashurova was ineligible for the benefit. The core reason was that, by her own admission, she was not working as either an employee or on a self-employed basis immediately before she decided she needed to stay home to care for her newborn.

Procedural history and earlier CRA reviews

Ms. Ashurova's eligibility had been the subject of multiple CRA reviews. Following a first-level decision, she requested a review under section 30 of the CRBA, which provides the Minister of Employment and Social Development (in effect, in this case, the CRA) with authority to conduct a de novo review of a first-level decision at the request of a claimant. An additional review was conducted thereafter by agreement, following the settlement of a previous judicial review application Ms. Ashurova brought. That review led to the November 20, 2023 decision, which was the final CRA decision and was a de novo review. The Federal Court of Appeal noted that this final de novo review cured any breaches of procedural fairness that might have previously occurred, and that the doctrine of functus officio did not apply to limit the CRA from providing reasons in its November 20, 2023 decision that were different from those it provided in earlier decisions.

The Federal Court decision

Ms. Ashurova brought a judicial review application before the Federal Court, seeking to set aside the November 20, 2023 CRA decision. Justice Blackhawk dismissed the application in Ashurova v. Canada (Attorney General), 2025 FC 428. The Federal Court found that the CRA officer's decision is reviewable under the reasonableness standard of review and that alleged breaches of procedural fairness are reviewable on a basis akin to correctness. The court declined to consider evidence that was not before the CRA officer, consistent with the general rule that evidence not before an administrative decision-maker is not admissible in an application for judicial review, which is not a de novo review. The Federal Court also declined to consider a Notice of Constitutional Question that Ms. Ashurova had sought to file. While the Federal Court did err in saying that an affidavit of service in respect of the Notice had not been filed, the affidavit of service that was filed establishes that the Notice of Constitutional Question was served only on the Attorney General of Canada, and not on any of the provincial and territorial attorneys general as required by subsection 57(1) of the Federal Courts Act.

The Notice of Constitutional Question on appeal

Before the Federal Court of Appeal, Ms. Ashurova sought to file a 73-page Notice of Constitutional Question challenging section 17 of the CRBA as ultra vires Parliament or as not consistent with the Canadian Charter of Rights and Freedoms. The Court declined to accept the Notice for three reasons. First, it was not properly served in accordance with the requirements of subsection 57(1) of the Federal Courts Act because service by mail on several of the provincial and territorial attorneys general was not effective before the appeal was heard on its scheduled hearing date. The Court rejected Ms. Ashurova's assertion that she was misled by opposing counsel regarding service requirements, finding instead that the response from counsel for the respondent was exemplary. Second, the Notice was substantively inadequate, as it was unclear why the appellant asserted that section 17 of the CRBA was unconstitutional or inconsistent with the Charter. Third, absent exceptional circumstances, appellate courts will not consider constitutional arguments that are raised the first time on appeal, and no such exceptional circumstances existed here.

Procedural fairness findings

The Federal Court of Appeal found no violation of Ms. Ashurova's procedural fairness rights. The appellant knew the case she had to meet, which was discussed with her lawyer, and was provided with the opportunity to make submissions. The allegation that the CRA violated her procedural fairness rights by questioning her during a telephone call without an interpreter was found to be without merit: it was the appellant's lawyer and not the CRA who had agreed to arrange for an interpreter, and when one was not found, the appellant and her lawyer agreed to proceed with the telephone interview with the CRA officer without an interpreter, without objection. The CRA also could not be reproached for any alleged failure to accommodate any disability, as it had no idea of any intellectual deficits the appellant might face, since this information was never provided to the CRA. The appellant's claim that the Federal Court copied wording from the respondent's memorandum of fact and law was not proven, and even if it had, this would not necessarily give rise to a procedural fairness violation.

The ruling and outcome

The Federal Court of Appeal, in a unanimous decision authored by Justice Gleason and concurred in by Justices Monaghan and Goyette, dismissed the appeal. The Court upheld the CRA's finding that Ms. Ashurova was not entitled to the CRCB, as the evidence before the CRA showed that she was not working or engaged in a self-employed endeavour when her child was born, making it impossible to satisfy the statutory requirement under subparagraph 17(1)(f)(i) of the CRBA of having lost work or self-employed hours to care for a child. The appellant's arguments about alleged misfeasance in public office were found to be without merit, and her allegations of a breach of the Charter were dismissed as vague and lacking an adequate factual foundation. Costs were awarded to the respondent, the Attorney General of Canada, given what the Court characterized as the entirely unmeritorious arguments raised by the appellant. No specific monetary amount was indicated in the decision beyond the cost award, the precise quantum of which was not specified.