Executive Summary: Key Legal and Evidentiary Issues

• Mr. Lemay's judicial review challenges the denial of his application under the Certain Emergency Response Benefits Remission Order (SI/2022-32) related to CERB repayment exemption.

• A significant discrepancy exists between the CRA's T186 form eligibility criteria and the actual legislative requirements under the Canada Emergency Student Benefit Act.

• The applicant graduated high school in 2002, failing to meet the CESB Act's requirement of graduating in 2020, despite the T186 form's broader wording suggesting earlier graduates could qualify.

• No evidence was provided — including the absence of a T2202 slip from Dawson College — to show that Mr. Lemay continued to study after December 1, 2019.

• Contract law principles and procedural fairness arguments raised by the self-represented applicant were rejected, as legislation prevails over government-issued forms.

• Despite dismissing the application, the Court ordered the respondent to pay costs of $250 to the applicant due to the respondent's responsibility for the confusing and inconsistent T186 form.

Background and facts of the case

Daniel Lemay applied for and obtained the Canada Emergency Response Benefit (CERB) but was later found ineligible for those payments. His ineligibility for the CERB is not in dispute in these proceedings. To seek relief from repaying the CERB amounts, Mr. Lemay applied under the Certain Emergency Response Benefits Remission Order, which allows a person who received CERB payments to which they were not eligible to be exempted from repaying those amounts — but only to the extent that the person was eligible for, but did not receive, the Canada Emergency Student Benefit (CESB) for the same period.

The eligibility requirements under the CESB Act

Under Section 2 of the Canada Emergency Student Benefit Act, a "student" is defined as a person who, among other criteria, was enrolled in a post-secondary educational program leading to a degree, diploma, or certificate at any time between December 1, 2019, and August 31, 2020; or who has graduated from secondary school in 2020 and has applied for enrollment in a post-secondary program scheduled to begin before February 1, 2021, and plans to enroll if accepted. Section 3 of the Canada Emergency Student Benefit Regulations further prescribed eligibility for persons who were to graduate from secondary school in 2020, provided they also applied for enrollment in a qualifying post-secondary program scheduled to begin before February 1, 2021 and planned to enroll if accepted.

The discrepancy between the CRA form and the legislation

The CRA prepared a T186 form for applications under the Remission Order. Critically, paragraph (c) of the form stated that an applicant who "completed high school or equivalency before June 7, 2020" and applied for a post-secondary educational program that started before February 1, 2021, and planned to enroll if accepted, would be admissible. A literal reading of this form language encompasses anyone who finished high school at any point in the past before June 7, 2020 — a far broader pool than the legislation intended. The respondent conceded that there is a discrepancy between the CESB Act and Regulations, on the one hand, and the T186 form, on the other hand. The CESB Act and Regulations provide that the person must have completed high school in 2020, not earlier.

Mr. Lemay's particular circumstances

Mr. Lemay graduated from high school in 2002. He was admitted to Dawson College for the fall term of 2019, which he ultimately did not complete. He does not recall if he withdrew from his program before or after December 1, 2019. Dawson College did not issue a T2202 slip for the year 2019. Based on the T186 form and other information he could gather, Mr. Lemay believed he was admissible to the CESB. He applied pursuant to the Remission Order and indicated that he qualified under paragraph (c) of the form. CRA officers, however, told him that to qualify under paragraph (c), he would have needed to graduate from high school in 2020. When he asked for the source or justification of what appeared to him to be a new eligibility requirement, he was never given a clear answer. In fact, the record shows, and he confirmed at the hearing, that he was not told about the existence of the CESB Act until the filing of the respondent's record.

The applicant's arguments

Mr. Lemay, who was self-represented, eloquently presented a range of arguments aimed at establishing that the eligibility conditions set forth in the T186 form should prevail over those found in the legislation. He relied on contract law principles according to which the written word of a contract must prevail over the subjective intentions of a party, drawing an analogy between the T186 form and a written contract, as well as between the CESB Act and a party's inner intentions. He also relied on the concept of procedural fairness, impugning the fact that he did not know the case to meet and that he had the impression that the CRA officers were moving the goalposts by setting new eligibility requirements not laid out in the form.

The Court's analysis and ruling

Justice Sébastien Grammond of the Federal Court applied a standard of reasonableness to the decision, citing Pless v Canada (Attorney General), 2026 FCA 61. The Court found the officer's decision to deny the application was reasonable because the CESB Act states very clearly that to qualify as a student pursuant to paragraph (b) of the definition, one must have graduated from high school in 2020, and Mr. Lemay graduated much earlier. The Court stated it would have been unreasonable for the officer to rule in Mr. Lemay's favour, as this would have entailed disregard for the most salient legal constraint bearing upon the decision. The Court rejected the contract law analogy, explaining that an application for benefits created by legislation is generally not understood as giving rise to a contract, and that legislation cannot be analogized to someone's inner or hidden intentions — rather, it is the most public form of law. Citing Bastien v Canada (Attorney General), 2023 FC 222, the Court noted that well-established precedent teaches that one cannot rely on representations, oral or written, made by government officials if they contradict legislation. The procedural fairness argument was also dismissed: while the Court acknowledged it was "deplorable" that no one was able to point Mr. Lemay to the CESB Act, this did not give rise to a breach of procedural fairness, as he was told what the requirements were and was able to provide any evidence he had. The doctrine of legitimate expectations, the Court noted citing Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, relates to the process and not the substance, and cannot displace legislation. Regarding the alternative basis of eligibility under paragraph (a) of the definition of student, the officer reasonably found that the evidence Mr. Lemay provided did not show that he continued to study after December 1, 2019, and it was reasonable for the officer to note that no T2202 slip was issued.

Outcome and costs

The Federal Court dismissed Mr. Lemay's application for judicial review. However, the Court found this to be an exceptional case in which it was just and appropriate to depart from the usual rule that costs are borne by the losing party. Justice Grammond ordered the respondent, the Attorney General of Canada, to pay costs in the amount of $250 to the applicant. The Court reasoned that Mr. Lemay was not told that the CESB Act was the basis for the decision until the filing of the respondent's record, and that had this been explained to him, he would probably not have brought the present application for judicial review. The Court further noted that there is no dispute that the T186 form is inconsistent with the CESB Act, and that the respondent must bear some responsibility for this imbroglio.