Executive summary: key legal and evidentiary issues

• Anisha Andu sought judicial review of a CRA officer's decision finding her ineligible for the Canada Recovery Benefit (CRB) for multiple two-week periods in 2020 and 2021.

• The officer determined that the Applicant's unemployment during periods 4 to 11 was unrelated to COVID-19, as her former employer Canbe had reopened both locations while she was enrolled as a full-time student.

• Income reduction calculations for periods 12 and 18 showed the Applicant did not meet the statutory threshold of a 50% reduction in average weekly income compared to previous years.

• New evidence submitted by the Applicant at the judicial review stage — including a letter from Canbe and 2021 T4 slips — was excluded by the Court because it was not before the officer at the time of the decision.

• The Court applied the reasonableness standard of review rather than the correctness standard urged by the Applicant, following the framework established in Vavilov.

• Ultimately, the Federal Court dismissed the application, finding the officer's decision intelligible, evidence-based, and reasonable, with no costs awarded to either party.

Background and employment history of the Applicant

Anisha Andu was employed at Canbe Foods Incorporated at the onset of the COVID-19 pandemic. Following adverse effects upon its business, Canbe laid the Applicant off effective September 9, 2020. She subsequently became a full-time student from November 8, 2020, to March 13, 2021. In March 2021, following the lifting of lockdown measures, she secured full-time employment at Nava Wilson LLP, but she was subsequently exposed to COVID-19 and, as a consequence, lost work and experienced a reduction in her income. Later in 2021, she was employed at Blue Chip Leasing Corporation but lost her full-time position due to a substantial reduction in the company's profitability attributable to the ongoing impact of COVID-19. During these periods of disrupted employment, the Applicant applied for and received the CRB for periods in 2020 and 2021.

The CRA verification and review process

The CRA elected to verify the Applicant's eligibility for the CRB after she had already received the payments on an attestation basis. The Applicant was notified that her eligibility was being reviewed and was asked to submit documentation. She provided the CRA with written submissions dated October 30, 2022. A first review, communicated by letter dated March 20, 2023, found her ineligible because she did not experience the required 50% income reduction for the relevant periods. The Applicant then requested a second review and provided further written submissions and supporting documentation to the CRA, including following an October 25, 2023 telephone discussion with the reviewing officer. The officer issued the decision on November 29, 2023, again finding the Applicant ineligible on two distinct grounds depending on the period in question.

Grounds for ineligibility under the Canada Recovery Benefits Act

Under paragraph 3(1)(f) of the Canada Recovery Benefits Act, SC 2020, c 12, s 2, a person is eligible for the CRB for a given two-week period if, for reasons related to COVID-19, they were either not employed or self-employed, or they experienced a reduction of at least 50% in their average weekly income compared to 2019, 2020, or the 12-month period preceding their application. The officer's Second Review Report, dated November 23, 2023, revealed that for periods 4 to 11 (the consecutive two-week periods between November 8, 2020, and February 27, 2021), the Applicant was found ineligible because she was unemployed for reasons unrelated to COVID-19. For period 12 (February 28, 2021, to March 13, 2021) and period 18 (May 23, 2021, to June 5, 2021), the officer concluded that the Applicant did not have a 50% reduction in her average weekly income compared to either 2019 or 2020, a finding supported by a Record of Employment and several Statements of Earnings and Deductions issued by Nava Wilson LLP.

The issue of new evidence at judicial review

The Respondent argued that certain documentation exhibited to the Affidavit of the Applicant sworn on January 26, 2024 — specifically a letter from Canbe dated November 24, 2023, and 2021 T4 slips provided by Nava, Blue Chip, and another employer named International Language — should be disregarded because it was not before the officer when the decision was made. The officer confirmed in an affidavit affirmed on February 22, 2024 that this evidence was not available when conducting the review that led to the decision. The Court accepted this position, noting the well-established principle that, in reviewing the reasonableness of an administrative decision, a court will typically consider only the evidence that was before the administrative decision-maker when the decision was made.

Standard of review and the Court's analysis

The Applicant submitted that the correctness standard should apply because the matter involved a legal question, being the interpretation of the relevant provisions of the CRB Act. The Respondent countered that the reasonableness standard applied, citing the Supreme Court of Canada's decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. The Court agreed with the Respondent, holding that the analysis focused principally upon the officer's treatment of the evidence before them, rather than upon an interpretation of the CRB Act, and that none of the narrow exceptions warranting a correctness review — such as constitutional questions, general questions of law of central importance to the legal system as a whole, or jurisdictional boundaries between administrative bodies — applied. With respect to periods 12 and 18, the Court found the officer's analysis and conclusion intelligible, supported by the evidence, and reasonable. The Applicant did not challenge the officer's calculations at the hearing but rather focused her arguments on periods 4 to 11, contending that the officer unreasonably took her status as a student into account in assessing her CRB eligibility.

Ruling and outcome

The Court found that the officer did not treat the Applicant's student status as disqualifying but rather took that fact into account, in combination with the evidence that her employer Canbe had reopened both its locations as of November 24, 2020 — as shown by social media screenshots the Applicant herself had submitted. Those screenshots evidenced that on March 18, 2020, Canbe announced the closure of one of its locations, with the other remaining open only for take-out, and that on November 24, 2020, Canbe announced both locations would be open daily during particular hours. The officer's conclusion that the Applicant's unemployment during periods 4 to 11 was not attributable to COVID-19 was therefore an intelligible conclusion based on the evidence available to the officer and withstood reasonableness review. The Federal Court, presided over by the Honourable Mr. Justice Southcott, dismissed the application for judicial review in its entirety. The Respondent, the Attorney General of Canada, did not claim costs against the Applicant despite its success, and accordingly the Court awarded no costs to either party. No specific monetary amount was ordered or awarded, as the judgment simply upheld the officer's finding of ineligibility for the CRB.