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CRB - Canada Recovery Caregiving Benefit (CRCB). Ashurova v. Canada (Attorney General) [CRB - Canada Recovery Caregiving Benefit]
In Ashurova v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, here brought against a JR decision that upheld a "Canada Revenue Agency (CRA) officer" decision that the appellant was "ineligible for the Canada Recovery Caregiving Benefit (the CRCB)" - a COVID-era federal income support program operated in concert with the CRB and the CERB:[21] As concerns the reasonableness of the CRA’s decision, once again, largely for the reasons given by the Federal Court, the decision was reasonable. In short, by her own admission to the CRA, the appellant was not working as either an employee or on a self-employed basis immediately before she decided she needed to stay home to care for her newborn. Under subparagraph 17(1)(f)(i) of the CRBA, to be entitled to the CRCB, a claimant must have lost work or self-employed hours to care for a child. This was not the appellant’s case: the evidence before the CRA showed that she was not working or engaged in a self-employed endeavour when her child was born. It was therefore reasonable for the CRA officer to have found that she was not entitled to the CRCB. . Ashurova v. Canada (Attorney General) [CRCB]
In Ashurova v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, here brought against a JR decision that upheld a "Canada Revenue Agency (CRA) officer" decision that the appellant was "ineligible for the Canada Recovery Caregiving Benefit (the CRCB)" - a COVID-era federal income support program operated in concert with the CRB and the CERB.
The court considers s.57(1) ['Constitutional questions'] of the Federal Courts Act, here wrt whether a Notice of Constitutional Question should be 'allowed':[2] The appellant also seeks to file a 73-page Notice of Constitutional Question that she recently forwarded to the Court. The respondent objects to its filing because the Notice was not served in a timely fashion on all provincial and territorial attorneys general, in violation of subsection 57(1) of the Federal Courts Act, R.S.C. 1985, c. F-7 (the FCA). The respondent adds that the Notice of Constitutional Question is deficient because it fails to adequately set out the grounds alleged in support of the claimed constitutional inoperability and invalidity of the provision in issue in this appeal. The respondent further asserts that this Court should not allow the Notice to be filed on appeal when it was not considered by the Federal Court.
[3] I will deal first with the issue of whether the appellant should be allowed to file the Notice of Constitutional Question before discussing the appeal. I conclude that the Notice should not be filed or considered by this Court for several reasons.
[4] First, it was not properly served in accordance with the requirements of subsection 57(1) of the FCA because service by mail on several of the provincial and territorial attorneys general was not effective before this appeal was heard on its scheduled hearing date. On this point, I underscore that, contrary to what the appellant asserts, she was not in any way misled or unfairly treated by counsel for the respondent regarding the requirements for service when she sought to file a similar Notice in the Federal Court. Counsel outlined for the appellant how to serve the Attorney General of Canada in response to the question her representative posed. Counsel went on to remind the appellant of the requirements of subsection 57(1) of the FCA. Counsel further directed the appellant to places where she could get more information about service requirements for Notices of Constitutional Question and addresses for service for the provincial and territorial attorneys general. In my view, the response from counsel for the respondent was exemplary.
[5] Second, the appellant’s proposed Notice of Constitutional Question is inadequate as it is unclear why the appellant asserts that section 17 of the Canada Recovery Benefits Act, S.C. 2020, c. 12, s. 2 (the CRBA) is ultra vires Parliament or is not consistent with the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the Charter). This provides a sufficient basis for striking a Notice of Constitutional Question, even after it has been properly served and filed: Doug Kimoto v. Canada (Attorney General), 2011 FCA 291 at paras. 19–20; Ewert v. Canada, 2021 FC 1132 at para. 25.
[6] Third, the appellant’s Notice should not be considered when it was not considered by the Federal Court. Absent exceptional circumstances, appellate courts will not consider constitutional arguments that are raised the first time on appeal: Guindon v. Canada, 2015 SCC 41, [2015] 3 SCR 3 at paras. 21–23; Lukács v. Canada (Citizenship and Immigration), 2023 FCA 36 at para. 73; O'Byrne v. Canada, 2015 FCA 239 at para. 15. Here, there are no exceptional circumstances that warrant consideration of the Notice of Constitutional Question, especially since it is inadequate for the reasons already discussed.
[7] Moreover, the Federal Court did not make a reviewable error in declining to consider the Notice of Constitutional Question that the appellant sought to file in the Federal Court. While the Federal Court did err in saying that an affidavit of service in respect of the Notice had not been filed, the affidavit of service that was filed establishes that the Notice of Constitutional Question was served only on the Attorney General of Canada, and not on any of the provincial and territorial attorneys general as required by subsection 57(1) of the FCA. Thus, while the Federal Court gave the wrong reason for declining to consider the Notice of Constitutional Question, it did not err in declining to consider the Notice because the Notice was not properly served.
[8] Thus, for these reasons, I would not allow the Notice of Constitutional Question to be filed before this Court and would not consider it.
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