Executive Summary: Key Legal and Evidentiary Issues

• CRA found the applicant ineligible for CERB and CRCB, citing insufficient proof of at least $5,000 in employment or self-employment income

• The Attorney General of Canada conceded that the CRA's decisions were both unreasonable and procedurally unfair

• Applicant was paid in cash for caregiving services to his late mother, with no formal contracts, invoices, or bank deposits to substantiate income

• Procedural fairness was breached as the CRA agent failed to explain why the applicant's supporting documents were insufficient or what additional evidence was needed

• Several exhibits submitted by the applicant during judicial review were excluded because they were not before the original decision maker

• The Court declined to directly grant the CERB and CRCB claims, instead remitting the matter to a different CRA agent for redetermination, and no costs were awarded

Background and facts of the case

Htay Lwin Aung, a self-represented applicant, sought judicial review of two second-review decisions dated July 17, 2025, in which a Canada Emergency Benefits Validation agent of the Canada Revenue Agency found him ineligible for the Canada Emergency Response Benefit and the Canada Recovery Caregiving Benefit. From 2011 to 2021, Mr. Aung provided full-time caregiving services to his late mother, who had suffered a stroke, receiving cash payments of approximately $300 per month in the first few years and $500 to $800 in the last four to five years. His brother, who had a joint bank account with their late mother, made the payments. The cash Mr. Aung received was used for everyday expenses and was never deposited into a bank account. Mr. Aung applied for the CERB covering periods between March 15, 2020 and September 26, 2020, and for the CRCB for periods from September 27, 2020 to February 27, 2021.

The CRA verification process

On March 22, 2023, the CRA sent a letter to Mr. Aung advising that it would conduct a verification review of his eligibility and requested supporting documentation as proof of earnings over $5,000. On January 5, 2024, the CRA informed him he was not eligible on the basis that it had not received a reply to the verification letter and had tried without success to reach him by telephone. Mr. Aung subsequently submitted documents on April 16, 2024, including personal letters, a letter from his brother, Royal Bank of Canada transaction records showing cash withdrawals from the joint account, a Canada Post registered mail ticket, and a COVID-19 assessment and prescription. Following its first review, the CRA maintained his ineligibility on May 31, 2024, and Mr. Aung submitted further documents on July 3, 2024, including T1 adjustment requests, tax summaries, and letters from physicians confirming his role as caregiver to his mother.

The CRA's second-review decisions

The CRA's second-review decisions, dated July 17, 2025, reiterated that Mr. Aung did not earn at least $5,000 before taxes of employment or self-employment income in 2019 or in the 12 months before his application. For the CRCB, the CRA additionally found that he was not caring for a child under 12 or a family member who was unable to attend school, daycare, or a care facility for reasons related to COVID-19, or that the individual who usually provided care was not available for reasons related to COVID-19. The CRA agent's internal notes revealed that there were "no work contract invoices or receipt" and no cash payments had been deposited into Mr. Aung's bank account. The agent also noted that Mr. Aung stated during a phone interview that COVID-19 did not affect his income, as he continued to care for his late mother and to receive payment for doing so. The agent further observed that Mr. Aung did not provide caregiver services to any clients other than his late mother and did not claim self-employment income until after he was deemed ineligible for the COVID-19 benefits he had received.

Eligibility requirements under the CERB Act and CRB Act

The Canada Emergency Response Benefit Act requires employees or self-employed workers to have earned at least $5,000 in employment income or self-employment income in 2019 or in the 12-month period preceding their application, and to have ceased working for reasons related to COVID-19 for at least 14 consecutive days within the relevant four-week period. The Canada Recovery Benefits Act imposes a similar $5,000 income threshold for the CRCB — requiring at least $5,000 in employment income or net self-employment income in 2019, 2020, or 2021, or in the 12-month period preceding the application — and additionally requires that, in the case of an employee, they must have been unable to work for, or in the case of a self-employed person, reduced the time devoted to their work by, at least 50% of the time they would have otherwise worked in that week, because they cared for a child under 12 or a family member who required supervised care due to COVID-19-related facility closures, an inability to attend a facility for reasons related to COVID-19, or the unavailability of the person who usually provided care for reasons related to COVID-19.

Preliminary issues addressed by the Court

The Court addressed two preliminary matters. First, the style of cause was amended to replace the Minister of National Revenue with the Attorney General of Canada as the proper respondent, since the CRA acted on behalf of the Minister of Employment and Social Development. Second, the Court excluded several exhibits from Mr. Aung's affidavit — including various Notices of Assessment and Reassessment for the 2011 to 2021 taxation years, a letter issued by Liberty Tax Service dated August 11, 2025, operations reports by interventional cardiologists, a medical report dated April 13, 2018, documents filled out by a medical practitioner dated August 6, 2020, a doctor's letter dated August 23, 2017, and a health assessment report dated September 12, 2022 — because they were not before the CRA agent at the time of the original decisions. The Court noted that the limited exceptions for admitting new evidence on judicial review did not apply in this case, though Mr. Aung would be free to submit those documents to the CRA as part of the new review of his eligibility.

Unreasonableness and procedural unfairness of the decisions

The Attorney General of Canada conceded that the decisions were unreasonable and procedurally unfair. The Court agreed, finding that the agent failed to explain why Mr. Aung's supporting documents were insufficient as proof of income, and other than listing the documents as received, there was no indication the agent engaged with them or discussed them with Mr. Aung. The Court further found that Mr. Aung did not fully know the case he had to meet, as the insufficiencies in his supporting documents were not communicated to him, and there was no indication the agent advised him why his documents were insufficient and what was additionally required to prove his eligibility, thereby breaching his right to procedural fairness.

The Court's ruling and outcome

The Court granted Mr. Aung's application for judicial review in part. While the decisions were set aside as unreasonable and procedurally unfair, the Court declined Mr. Aung's request to directly order the CRA to approve his CERB and CRCB claims. Justice Gascon emphasized that determining benefit eligibility falls within the CRA's decision-making authority, not the Court's, and that it was possible a new CRA agent could nevertheless reasonably arrive at the same decision, or could reach a different conclusion more favourable to Mr. Aung. The matter was remitted to a different CRA agent for redetermination, with the applicant to be given a full and fair opportunity to present his evidence and his case. Mr. Aung's request for $237 in costs was denied, as the Court exercised its discretion pursuant to Rule 400 given the divided result — the AGC conceded the unreasonableness and procedural unfairness of the decisions, but prevailed on the main remaining issue in dispute, the appropriate remedy. No costs were awarded.