Executive Summary: Key Legal and Evidentiary Issues

• Self-employed geologist David Visagie was denied the Canada Emergency Response Benefit (CERB) by the CRA, which found he had not ceased working for reasons related to COVID-19.

• Eligibility under paragraph 6(1)(a) of the CERB Act required the applicant to demonstrate he stopped working due to COVID-19 for at least 14 consecutive days within the four-week period for which he applied for the benefit.

• The CRA agent failed to engage with the applicant's central argument that government-imposed COVID-19 travel restrictions eliminated his contract geology work in the mining industry.

• An Earnings Table submitted by the applicant showed his 2020 income was significantly lower than in the years preceding and following 2020, supporting his claim of pandemic-related work disruption.

• The Federal Court applied the reasonableness standard of review per Vavilov, finding the agent's decision unreasonable for failing to grapple with the applicant's central arguments and supporting evidence.

• New evidence submitted by the applicant that was not before the original decision-maker was excluded from the Court's consideration on judicial review.

Background and the applicant's employment history

David A. Visagie, a self-represented applicant, worked as a self-employed geologist on a contractual basis for a Canadian company from 2015 to 2022. His work required him to travel to complete projects in Canada, the United States, and Mexico. In 2020, Visagie applied for and received the CERB for seven consecutive four-week periods from March 15, 2020, to September 26, 2020.

The CRA's eligibility review and initial determination

By letter dated June 29, 2023, the Canada Revenue Agency informed Visagie that a review of his CERB eligibility was being undertaken. The letter identified the eligibility criteria requiring him to have earned at least $5,000 in 2019 or in the 12 months prior to the date of his CERB application, as required under the Canada Emergency Response Benefit Act. Visagie submitted documentation showing proof of employment and income in 2019, and a CRA agent advised him by telephone on August 29, 2023, that the documents he had submitted satisfied the minimum income requirement. However, on August 31, 2023, the CRA determined Visagie was not eligible for the CERB because he had not ceased working for reasons related to COVID-19. He was informed by letter dated September 5, 2023.

The second review and the decision under challenge

Visagie requested a second review by way of letter dated September 13, 2023, attaching a spreadsheet that detailed his income from 2015 to 2022 per client and project completed, referred to as the Earnings Table. He argued that the projects he had worked on and supervised and the business travel required to perform those projects had been "taken…off the table" by government-imposed COVID-19 restrictions, and that COVID-19 had resulted in a "disruption unlike anything [the mining industry] ha[d] seen before." He cited an industry publication in support of this submission. By letter dated June 19, 2024, a CRA agent informed Visagie that the CRA had completed the second review and that all the information provided to support his CERB eligibility had been carefully considered, but that he was determined not eligible for the CERB because he did not stop working or have his hours reduced for reasons related to COVID-19. The agent's internal notes from a telephone call on June 17, 2024, recorded that Visagie did not work at all in 2020 and worked only for a few hours in May 2020, and concluded that he "was not affected by covid-19."

The statutory framework and standard of review

Paragraph 6(1)(a) of the CERB Act provides that to be eligible for the CERB, a worker, whether employed or self-employed, must cease working for reasons related to COVID-19 for at least 14 consecutive days within the four-week period in respect of which they apply for the payment. The Federal Court confirmed that decisions related to COVID-19 benefits eligibility, including the CERB, are to be reviewed on the presumptive standard of reasonableness. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker.

The Court's analysis and key findings

Justice Gleeson acknowledged that, in light of the applicant's statement that he was not employed or self-employed in 2020, except for a few hours in May, and in the absence of evidence disclosing that the applicant had worked prior to the onset of the pandemic in March 2020, it may well have been reasonable for the agent to conclude the applicant was not eligible for the CERB on the basis that he was not affected by COVID-19. However, the Court found that, in doing so, the agent's reasons were required to reflect and be responsive to the central issues and concerns raised by the applicant. The agent did not consider or grapple with the core issue identified by Visagie — that COVID-19 travel restrictions had prevented him from working in his field as a geologist in 2020. Visagie had stated in his September 2023 letter that "I worked prior to the imposition of Covid restrictions and have after the restrictions were eased. When the restrictions were imposed my hours were reduced due to the Covid pandemic." During the telephone call on June 17, 2024, Visagie again explained that he was a geologist working for a Canadian-based mining company that was giving him contracts for Canada and the United States, but due to COVID-19 all travel was shut down, that he was unable to travel to do his work, and that there were no hours to work so he did not work during the pandemic. The agent's reasons did not address these central submissions, nor did they meaningfully engage with the Earnings Table that disclosed his 2020 income was significantly lower than that reported for the years preceding and following 2020.

Preliminary matters addressed by the Court

The Court also addressed two procedural issues. First, the style of cause was amended to name the Attorney General of Canada as the proper respondent, as Visagie had incorrectly identified the responding party as the Canada Revenue Agency. Second, the Court agreed with the respondent that certain documents appended as exhibits to the applicant's affidavit affirmed on January 10, 2025, and certain facts raised in oral submissions were not properly before the Court, and the Court did not consider documents and facts related to the merits that were not available to or known by the agent as disclosed in the Certified Tribunal Record.

The ruling and outcome

The Federal Court granted the application for judicial review. The June 19, 2024 decision was set aside, and the matter was returned for redetermination by a different decision-maker. The applicant did not seek costs, and no costs were awarded. No specific monetary amount was ordered, granted, or awarded in this proceeding, as the remedy was the setting aside of the decision and a return for redetermination.