Executive summary: key legal and evidentiary issues

• Antonio Piscitelli sought judicial review of a CRA decision finding him ineligible for the Canada Emergency Response Benefit (CERB) across four benefit periods.

• Eligibility under the CERB Act required a worker to cease working for COVID-19-related reasons for at least 14 consecutive days and earn no more than $1,000 during those days.

• The Officer's income calculations for Periods 5, 6, and 7 exceeded the $1,000 threshold and were found to be reasonable and intelligible by the Court.

• An unexplained inconsistency arose between the Officer's treatment of Period 1 (found eligible under the "14-day rule") and Period 2 (found ineligible), despite parallel earning patterns in both periods.

• Procedural fairness claims were dismissed due to the Applicant's failure to advance supporting evidence or submissions.

• The Court set aside the Decision as unreasonable regarding Period 2 and remitted the matter to a different CRA officer for redetermination, with no costs awarded.

Background and facts of the case

Antonio Piscitelli, an apprentice electrician, applied for the Canada Emergency Response Benefit (CERB) in 2020 and received $10,000 in total payments across five four-week periods: Period 1 (March 15 – April 11, 2020), Period 2 (April 12 – May 9, 2020), Period 5 (July 5 – August 1, 2020), Period 6 (August 2 – August 29, 2020), and Period 7 (August 30 – September 26, 2020). During the COVID-19 pandemic, Mr. Piscitelli and his wife struggled to manage childcare for their children, who were not able to attend in-person school due to the pandemic, causing him to miss multiple days from his employment. He represented himself throughout the proceedings.

The CRA's eligibility review

By letter dated March 10, 2022, the CRA required Mr. Piscitelli to provide documents confirming his eligibility for the CERB payments. On April 17, 2022, Mr. Piscitelli provided documents to the CRA in response. By further letter dated August 1, 2023, a CRA officer advised him that he was not eligible for the CERB because he received more than $1,000 of employment or self-employment income during each of the relevant periods and/or that he did not stop working or have his hours reduced related to COVID-19 (the First Decision). Mr. Piscitelli subsequently requested a second review of his CERB eligibility by letter dated August 8, 2022, and, in a further letter dated October 16, 2023, provided to the CRA written submissions and further documentation emphasizing the pandemic's impact on his family and employment. He also requested that, instead of being asked to repay the full $10,000 in CERB benefits, he be allowed to pay only the amount by which his income had exceeded the $1,000 limit for each of the relevant periods — a total he calculated at $1,741.67.

The decision under review

On November 27, 2023, a CRA officer issued the second review decision, concluding that Mr. Piscitelli was not eligible for the CERB in Periods 2, 5, 6, and 7 because he earned more than $1,000 of employment or self-employment income during each of those periods and/or he did not stop working or have his hours reduced for reasons related to COVID-19. The Officer's Second Review Report calculated the Applicant's gross income as follows: $1,680 for Period 2, $1,890 for Period 5, $1,750 for Period 6, and $1,151 for Period 7. For Period 1, the Officer concluded that the Applicant had received gross income of $1,330 but was nevertheless satisfied that the Applicant was eligible for that period, because the Applicant did not have any employment income for a 14-day period within Period 1. The Officer described the Applicant as eligible based on the "14 day rule."

Statutory framework and the $1,000 threshold

Under section 6(1) of the Canada Emergency Response Benefit Act, a worker is eligible for the CERB if they cease working for COVID-19-related reasons for at least 14 consecutive days within the relevant four-week period and do not receive employment or self-employment income during those consecutive days of cessation. Section 1 of the Income Support Payment (Excluded Nominal Income) Regulations, SOR/2020-90, provides that income from employment or self-employment is excluded from the eligibility calculation if the total of such income received in respect of the consecutive days on which the worker ceased working is $1,000 or less.

Procedural fairness findings

Mr. Piscitelli's Notice of Application asserted that the CRA breached the duty of procedural fairness by failing to consider the material before it, failing to provide direction to the Applicant as to the material required for consideration, failing to provide reasons for the Decision in a transparent manner, failing to exercise its discretion impartially, and failing to consider the Applicant's request without undue delay. The Court dismissed these claims, noting that Mr. Piscitelli had not advanced evidence or written or oral submissions in support of these assertions. The Court agreed with the Respondent's position that the Applicant was advised in the First Decision as to the basis for the CRA's conclusion and that the Officer further explained the basis for that conclusion over the telephone on November 21, 2023.

Reasonableness of the decision — Periods 5, 6, and 7

Applying the reasonableness standard from Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, the Court found the Officer's analysis for Periods 5, 6, and 7 to be reasonable. In the Second Review Report, the Officer employed the material provided by the Applicant to calculate his gross employment income for each of those periods, finding that in each the total income exceeded the $1,000 threshold set by the Regulations. The Court noted that this reasoning is intelligible and supported by the evidence before the Officer, and that the Officer was obliged to apply the statutory eligibility criteria under the CERB Act with no discretion in that regard.

The critical inconsistency regarding Period 2

The Court identified a significant flaw in the Officer's treatment of Period 2. The Applicant's income in Period 2 was earned in two consecutive weeks, with no income earned in the other two consecutive weeks of that period — circumstances that appear to parallel those in Period 1, for which the Officer found him eligible for the CERB. It appeared from the record, and indeed from the information in the Second Review Report itself, that the Applicant earned no income in the first consecutive 14 days of Period 2. The Court found it was therefore not clear why the Officer's analysis that supported his eligibility for Period 1 did not also support his eligibility for Period 2. At the hearing, the Respondent suggested that the Officer may have erred in relation to Period 1 and that the Applicant was actually ineligible for both periods, and further argued that the Applicant's absences from work, being attributable to childcare responsibilities, did not represent ceasing working "for reasons related to COVID-19" within the meaning of paragraph 6(1)(a) of the CERB Act. However, the Court noted that these arguments did not form part of the Officer's reasoning and therefore did not represent a basis for the Court to find the Decision intelligible and reasonable as it relates to Period 2.

Ruling and outcome

The Federal Court, presided over by the Honourable Mr. Justice Southcott, allowed the application for judicial review, finding the Decision unreasonable and unintelligible in its treatment of Mr. Piscitelli's eligibility for the CERB in Period 2. The Decision was set aside and the matter was returned to a different CRA officer for redetermination. The Court also amended the style of cause to change the name of the Respondent to the "Attorney General of Canada." As neither party claimed costs, and both parties achieved a mixed result — with the Court finding the Decision to be unreasonable only in relation to one of the four CERB periods in issue — no costs were awarded to either party. No specific monetary amount was ordered or awarded by the Court; the financial outcome for Mr. Piscitelli will depend on the redetermination by the new CRA officer.