CERB & CRB –Judicial Review

From CRA to the Federal Court

If CRA’s second review still denies your CERB, CRB, CRSB or CWLB the next step is often a judicial review in the Federal Court. This isn’t a brand new hearing; it’s a legal challenge arguing that CRA’s decision was unreasonable or procedurally unfair.

What I do on judicial review

I take carriage of the full court process, including:

• Drafting and filing the Notice of Application (or a motion for extension of time if needed)

• Obtaining and reviewing the Certified Tribunal Record from CRA

• Identifying whether preliminary motions are needed — for example, where the record is incomplete or reveals an automated decision with no individualized analysis

• Preparing the Applicant’s Memorandum of Fact and Law

• Written and oral argument if the matter proceeds to hearing

My default approach is to take full lead and come to you only with focused questions, so you’re not left to figure out Federal Court procedure on your own.

The automated decision problem

In a significant number of files, CRA’s Certified Tribunal Record reveals that the initial eligibility determination was not made by a human officer. Instead, it was generated by an automated system — identifiable by codes like BOT067G or BOT056G in CRA’s internal records.

I raise this as a standalone ground for judicial review: the Canada Revenue Agency Act requires that CRA’s powers be exercised by “persons employed or engaged by the Agency.” An algorithm is not a person. Where CRA’s process began with an automated determination and no meaningful human review followed, the decision may be unlawful regardless of the merits of the eligibility question.

How files typically resolve

A substantial number of judicial review files resolve before a hearing takes place. After receiving the application materials and reviewing the record, the Department of Justice often engages in settlement discussions. In many cases, CRA agrees to conduct a fresh review — which is the same remedy the Court would order if the application succeeded.

Where settlement isn’t reached, the matter proceeds to a hearing on the written and oral submissions. The Court either dismisses the application or sets aside CRA’s decision and sends it back for reconsideration.