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COVID - CERB/CRB. Sun v. Canada (Attorney General)
In Sun v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal against an earlier dismissal of a JR, this against a CRB decision by the CRA:[2] The Agency decided that Ms. Sun was not eligible for the benefits she received under section 3 of the Canada Recovery Benefits Act, S.C. 2020, c. 12, s. 2 and required her to repay the benefits. The Agency found that she did not satisfy two eligibility requirements for the benefits. First, she did not earn at least $5,000 (before taxes) of employment or net self-employment income (as opposed to, for example, rental income from property) in 2019, 2020 or in the 12 months before the date of her first application. Second, she did not have a 50% reduction in her average weekly income compared to the previous year due to COVID-19. . Jacob v. Canada (Attorney General)
In Jacob v. Canada (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal dismissed an underinclusive Charter s.15 challenge to the CERB/CRB COVID programs.
Here the court summarizes the CERB and CRB COVID programs:(4) The CERB and CRB programs
[25] The evidence produced by the respondents revealed that as a result of the COVID-19 pandemic, there was a dramatic surge in EI claims in March 2020. The existing EI system was not able to handle this sudden increase in claims. In order to respond to the need for immediate income support, Canada designed and implemented a new emergency response benefit system, consisting of two streams. The EI Emergency Response Benefit (“EI ERB”) replaced the existing EI program for those who would otherwise have been entitled to EI regular or sickness benefits under that program. The CERB stream, implemented by the Canada Emergency Response Benefit Act, S.C. 2020, c. 5, s. 8 (the “CERB Act”) was intended for workers who would not have been eligible for EI. A claimant could only receive one or the other.
[26] The CERB provided a $500 weekly benefit that was available from March 15, 2020 until October 3, 2020. It is not in dispute that as of October 4, 2020, there were 8.9 million unique applicants, 27.57 million applications, and $74.08 billion in benefits paid.
[27] In addition to general eligibility criteria set out in s. 6(1), the CERB Act required applicants to be “workers” in order to qualify for the CERB. A “worker”, as defined in s. 2 of the CERB Act, was a person who was at least 15 years of age, a resident of Canada and earned a minimum of $5,000 in the previous 12 months or in 2019, from certain specified sources of income, such as employment or self-employment income. CPP-D was not a specified source of income.
[28] The $5,000 income threshold was intended to reflect a minimum level of attachment to the workforce. It was created by taking the lowest provincial minimum wage at the time (Saskatchewan), combined with the lowest number of insurable hours necessary to qualify for regular EI, rounded up to the next thousand.
[29] According to Joel Reimer, a government employee who was directly involved in the design and development of the CERB and CRB, the $5,000 income threshold “was chosen to capture as many individuals as possible, simply and effectively.” His evidence showed that in 2019 and 2020, approximately 88% and 86% of Canadian workers, respectively, earned more than $5,000 per year. Further, according to Mr. Martens, approximately 24% of CPP-D recipients earned over $5,000 in 2019, and approximately 23% earned over $5,000 in 2020.
[30] The $5,000 income threshold was restricted to income from employment or self-employment, as well as income from maternity or parental benefits. The CPP-D benefits were not included as an eligible income source able to satisfy the $5,000 income threshold. According to Mr. Reimer, maternity and parental benefits were included because they were viewed as benefits for temporary interruptions to recent labour force attachment, whereas CPP-D was viewed as a benefit for a permanent interruption to past labour force attachment.
[31] The CRB, implemented by the Canada Recovery Benefits Act, S.C. 2020, c. 12, s. 2 (“CRB Act”), replaced the CERB. The CRB Act implemented a suite of benefits, including the CRB and the Canada Recovery Sickness Benefit (“CRSB”). According to Mr. Reimer, these benefits were intended to ensure workers still had access to the necessary income support and to respond to the gradual re-opening of the economy and the need to help workers transition back to work. These benefits were available from September 27, 2020 to October 23, 2021: CRB Act, s. 3(1).
[32] Like the CERB, the CRB was only available to individuals who had at least $5,000 in income from specified sources in 2019 or in the 12 months prior to the date of the application: CRB Act, ss. 3(1)(d)-(e.1). CPP-D was not a specified source of income. CRB claimants were also required to not place undue restrictions on their availability for work during the period of their claim: CRB Act, s. 3(1)(j).
[33] The CRSB was available between September 27, 2020 and May 7, 2022. The CRSB required the same income threshold from specified income sources in any of 2019, 2020, 2021 or the 12 months prior to the date of the application: CRB Act, ss. 10(1)(d)-(e.1). Once again, CPP-D was not a specified income source. Claimants were eligible if they were unable to work for at least 50% of the time each week because they were sick, had an underlying condition that made them more susceptible to COVID-19, or were required to isolate for reasons related to COVID-19: CRB Act, s. 10(1)(f).
[34] The application judge noted that, with the introduction of the CRB, Canada relaxed the eligibility criteria for EI. This was done by granting a one-time credit of 300 hours, which reduced the number of insurable hours required to be eligible to 120.
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