JONATHAN BELLEROSE BASTIEN Applicant v. ATTORNEY GENERAL OF CANADA, 2023 FC 222

Date: 20230215 Docket: T-118-22 Citation: 2023 FC 222 [ENGLISH TRANSLATION REVISED BY THE AUTHOR] Ottawa, Ontario, February 15, 2023 PRESENT: Mr. Justice Sébastien Grammond BETWEEN: JONATHAN BELLEROSE BASTIEN Applicant and ATTORNEY GENERAL OF CANADA Respondent JUDGMENT AND REASONS [ 1 ] Mr. Bellerose was denied the Canada Emergency Response Benefit [CERB] because he had not earned income of at least $5,000 in the twelve months preceding the day of his application. He is now seeking judicial review of this denial.

Relying on information on the Canada Revenue Agency [CRA] website, he argues that this 12-month period ended at the beginning of the period for which he is requesting benefits, and not on the date of his application. [ 2 ] I am dismissing Mr. Bellerose’s application. The eligibility requirements for the CERB are established by statute, not by the CRA website. The denial of Mr. Bellerose’s application was based on a reasonable

interpretation of the law. If the situation gives rise to an injustice, Mr. Bellerose may pursue other remedies. I. Background [ 3 ] During 2019, Mr. Bellerose was occasionally employed to carry out construction or maintenance work. His employment continued into the early months of 2020, but measures taken in response to the COVID-19 pandemic prevented him from getting to work. [ 4 ] On May 25, 2020, Mr. Bellerose filed a CERB application for the period from March 15 to April 11, 2020. He received the benefit for the requested period and for three subsequent periods. However, his file was reviewed.

To demonstrate his eligibility, Mr. Bellerose filed receipts and a table outlining the income he earned between March 2019 and March 2020. This income totalled $5,300. A CRA officer determined that Mr. Bellerose was ineligible to receive CERB. Mr. Bellerose requested a second review of his file. [ 5 ] The second review officer refused Mr. Bellerose’s request. She noted that he had not earned eligible income of at least $5,000 in 2019. She then verified whether Mr. Bellerose had earned such income during the 12-month period preceding the application.

She noted that this period ended at the time the application was filed, in this case, on May 25, 2020. She therefore calculated the income declared by Mr. Bellerose between May 25, 2019 and May 25, 2020 and arrived at a total of $3862.50. Since this amount was less than $5,000, she concluded that Mr. Bellerose was ineligible to receive CERB. [ 6 ] Mr. Bellerose is now seeking judicial review of that decision. II.

Analysis [ 7 ] On judicial review, the Court’s role is not to reassess the case from scratch, but rather to ask whether the administrative decision maker—in this case, the second review officer—has rendered a reasonable decision: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , [2019] 4 SCR 653 [ Vavilov ] . [ 8 ] In this case, the determinative issue is the end point of the 12-month period during which a CERB applicant must have earned income of at least $5,000. Is it the beginning of the first benefit period, as Mr.

Bellerose contends, or is it the day on which the application was filed, as the Attorney General contends? [ 9 ] In this regard, Mr. Bellerose’s submissions are based on the information that appeared on the CRA website at the time he filed his application. It stated the following: To be eligible for the $2,000 CERB payment, you were required to meet the following conditions during the period covered by your application : . . . You earned at least $5,000 (before taxes) in the last 12 months or in 2019, from one or more of the following sources . . . [Emphasis added]

[10] According to Mr. Bellerose, the expression "“in the last 12 months”" necessarily refers to the "“period covered by yourapplication"”. He deduces that the 12-month period ended on the first day of the period for which he is requesting benefits, i.e. March2020, and not on the day his application was submitted, in May 2020.

By way of comparison, the phrase [translation] "“in the 12-monthperiod prior to the date of your first application”", which appears in the decision letter sent to him in December 2021, is not found in theexcerpt from the CRA website that was filed in evidence. [11] The Attorney General, for his part, supports his position with the text of the Canada Emergency Response Benefit Act, SC 2020, c.5, s. 8 [the Act].

Section 2 of the Act defines the notion of worker/travailleur as follows: "worker"" means a person who is at least 15years of age, who is resident in Canada andwho, for 2019 or in the 12-month periodpreceding the day on which they make anapplication under

section 5, has a total incomeof at least $5,000 — or, if another amount isfixed by regulation, of at least that amount —from the following sources: " "travailleur Personne âgée d’au moinsquinze ans qui réside au Canada et dont lesrevenus — pour l’année 2019 ou au cours desdouze mois précédant la date à laquelle elleprésente une demande en vertu de l’article 5— provenant des sources ci-après s’élèvent àau moins cinq mille dollars ou, si un autremontant est fixé par règlement, ce montant : ""(a) ""employment; " "

a) un emploi; ""(b) ""self-employment; " "

b) un travail qu’elle exécute pour soncompte; ""[…] " "[…] ""[Emphasis added] " "[Je souligne] " [12] How does one resolve a conflict between a statute and a document intended to inform the public about the content of that statute? [13] It is generally accepted that such a document constitutes an administrative

interpretation that a court may take into considerationwhen interpreting a statute: Harel v Deputy Minister of Revenue (Quebec), (SCC), [1978] 1 SCR 851 at 858–859[Harel]; Nowegijick v The Queen, (SCC), [1983] 1 SCR 29 at 37; FN (Re), 2000 SCC 35 at paragraph 26, [2000] 1 SCR880. Justice Robert Décary of the Federal Court of Appeal eloquently summarizes the application of this principle to

interpretationbulletins issued by the CRA, in Vaillancourt v Deputy MNR, [1991] 3 FC 663 (CA) at 674 [Vaillancourt]: . . . I note that the courts are having increasing recourse to such Bulletins and they appear quite willing to see an ambiguityin the statute — as a reason for using them — when the

interpretation given in a Bulletin squarely contradicts theinterpretation suggested by the Department in a given case or allows the

interpretation put forward by the taxpayer. When ataxpayer engages in business activity in response to an express inducement by the Government and the legality of thatactivity is confirmed in an

Interpretation Bulletin, it is only fair to seek the meaning of the legislation in question in thatbulletin also. [14] However, it is firmly established that documents published by the government cannot have the effect of amending or setting aside astatute. As the Supreme Court stated in Harel, at page 858: "“Clearly, this policy could not be taken into consideration if it were contraryto the provisions of the Act”".

Indeed, the expectations that may be arise from administrative statements do not create substantive legalrights: JP Morgan Asset Management (Canada) Inc v Canada (National Revenue), 2013 FCA 250 at paragraph 75, [2014] 2 RCF 557.This is why, in Vaillancourt, Justice Décary reiterated that an

interpretation bulletin is not binding on the CRA and can only be takeninto consideration "“in the event of doubt as to the meaning of the legislation”" (at 674). In other words, recourse to an administrativeinterpretation is a secondary method of

interpretation that will only be used if the three primary methods, i.e., consideration of the text,context and purpose of the legislation, do not lead to a firm conclusion. [15] The issue at the heart of the present case is therefore, in the final analysis, one of

interpretation. As this is an application for judicialreview, I must show deference to the decision that is the subject of the review, including with regard to the

interpretation of the law:Vavilov, at paragraph 115. In other words, I can only overturn the second review officer’s decision if she has adopted an unreasonableinterpretation of the Act. The

interpretation of a statutory provision may be unreasonable if the administrative decision maker has"“failed entirely to consider a pertinent aspect of its text, context or purpose”": Vavilov, at paragraph 122. These three elements—text,context and purpose—constitute the primary methods of

interpretation that Canadian courts usually employ to establish legislative intent. [16] Two factors make my task more complex. First, the second review officer did not explicitly state the reasons that led her to concludethat the 12-month period ended on the day the application was submitted and not at the beginning of the period for which benefits wereclaimed. Nevertheless, as the Supreme Court stated in Vavilov at paragraph 123, the record enables me to discern the

interpretationadopted and determine whether that

interpretation was reasonable. Secondly, I do not know whether Mr. Bellerose brought hissubmissions regarding the website and the

interpretation of the Act to the attention of the officers who ruled on his eligibility for theCERB. However, given the manner in which I am deciding the case, I do not need to resolve this issue. [17] I have carefully reviewed Mr. Bellerose’s written submissions and listened to his eloquent argument at the hearing. He has putforward no grounds on which I can conclude that the

interpretation adopted by the second review officer disregarded the text, context orpurpose of the definition of worker. [18] In fact, this

interpretation was based on the ordinary meaning of the text of this definition, in particular the phrase "“in the 12-monthperiod preceding the day on which they make an application”". The phrase "“day on which they make an application”" clearly refers tothe filing of the application and not to the beginning of the period for which benefits are claimed. The

interpretation proposed by Mr.Bellerose can hardly be reconciled with the wording of the Act. [19] Moreover, the wording of

section 5 of the Act, and more specifically subsection 5(2), shows that the date on which an application ismade and the beginning of the period for which a benefit is claimed are two different dates. [20] Since primary methods of

interpretation allow a firm conclusion to be reached as to the meaning of the provision of the Act in

question, it was reasonable to disregard the information on the CRA website. In the words of the Supreme Court in Harel , the website, or at least Mr. Bellerose’s reading of it, " “were contrary to the provisions of the Act ” " . [ 21 ] Having adopted a reasonable

interpretation of the Act , the second review officer reasonably applied it to the facts of the present case. Indeed, it is not seriously disputed that the documents provided by Mr. Bellerose did not prove eligible income of at least $5,000 if the reference period extended from May 25, 2019, to May 25, 2020. [ 22 ] I note, moreover, that the second review officer concluded that the documents presented by Mr. Bellerose were insufficient to establish his income, given that he had not provided evidence that the amounts received had been deposited in a bank account.

I find it difficult to see how such a requirement can be reconciled with the recent decisions of this Court: Sjogren v Canada (Attorney General) , 2022 FC 951 at paragraphs 28 and 29 ; Crook v Canada (Attorney General) , 2022 FC 1670 at paragraph 20 ; Sjogren v Canada (Attorney General) , 2023 FC 24 at paragraph 38 . Since the issue relating to the

interpretation of the Act is sufficient to decide the matter, nothing further need be said. [ 23 ] Nonetheless, the outcome I have arrived at raises a suspicion of injustice. Mr. Bellerose maintains that he applied for the CERB based on information that appeared on the CRA website, but which turned out to be inaccurate. As a result, he now finds himself obliged to reimburse benefits he received and to which he believed he was legitimately entitled. Unfortunately, the powers granted to our Court in an application for judicial review do not allow me to remedy this situation.

In addition, the evidence concerning the content of the website is limited and the Attorney General did not address this issue in his submissions. If there is injustice, other measures can be taken to remedy it, such as an application for debt remission under

section 23 of the Financial Administration Act , RSC 1985, c. F-11 . Such remission may be granted, for example, where CRA officials have given erroneous advice: Ontario Addiction Treatment Centres v Canada (Attorney General) , 2022 FC 393 at paragraph 32 ; Jefferson v Canada (Attorney General) , 2021 FC 658 at paragraph 34 . III. Decision and Costs [ 24 ] Since the second review officer’s decision was based on a reasonable

interpretation of the Act , Mr. Bellerose’s application for judicial review will be dismissed. [ 25 ] The Attorney General is claiming costs in the amount of $500. I am aware that costs have been awarded in that amount in some cases involving the CERB or the Canada Recovery Benefit. Insofar as one can generalize, it seems to me that costs have been awarded in cases in which the applicant was arguing an indefensible position. This is not the case with Mr. Bellerose. Although I dismiss his application, it was based on a legitimate concern about the CRA’s website. I will therefore make no order as to costs.

JUDGMENT in T-118-22 THIS COURT’S JUDGMENT is as follows: 1. The application for judicial review is dismissed. 2. There is no order as to costs. “Sébastien Grammond” Judge FEDERAL COURT SOLICITORS OF RECORD DoCKET: T-118-22 STYLE OF CAUSE: JONATHAN BELLEROSE BASTIEN v ATTORNEY GENERAL OF CANADA PLACE OF HEARING: BY VIDEOCONFERENCE DATE OF HEARING: FEBRUARY 8, 2023 JUDGMENT AND REASONS: GRAMMOND J. DATED: FEBRUARY 15, 2023 APPEARANCES : Jonathan Bellerose Bastien FOR THE APPLICANT (ON HIS OWN BEHALF) Noémie Vespignani FOR THE RESPONDENT

SOLICITORS OF RECORD : Attorney General of Canada Ottawa, Ontario FOR THE RESPONDENT