There are a lot of assumptions about what pro bono assignments typically involve. Representing individuals in their disputes with the Canada Revenue Agency (CRA) might not seem to fit those expectations, but that is exactly what some Osler lawyers are doing: helping people of limited means to challenge Canada Emergency Response Benefit (CERB) and Canada Recovery Benefits (CRB) repayment demands.
The federal government issued CERB payments to support individuals whose employment was negatively affected by the COVID-19 pandemic. It also issued CRB to individuals who experienced a reduction in income.
The CRA has begun a process to review beneficiaries’ eligibility for the CERB and CRB. Over the past year, many recipients have been asked to repay their benefits because, according to the government, they weren’t eligible to receive them. CRA is taking unilateral collection action by withholding other federal benefits. An individual who has their benefit denied has only one real remedy: to file an application for judicial review in the Federal Court of Canada.
Client profiles
Setting aside the fact that many people aren’t in a financial position to comply with the repayment requests, in many cases, the CRA determinations are simply incorrect, says Litigation associate Manveer Shergill.
“These clients are low-income earners, and come from diverse backgrounds including individuals with disabilities, seniors, recent immigrants and other vulnerable populations who were disproportionately affected by the economic consequences of the pandemic,” explains Manveer.
“They lack the financial resources to afford legal representation and many struggle to navigate the complexities of the administrative and judicial review processes. Pro bono assistance is essential for ensuring that these clients have access to legal advice and representation to help them address their CERB/CRB repayment issues effectively and achieve fair outcomes.”
Partnering on the program
Tommy Gelbman, partner, Litigation, explained, that the firm became aware of this situation after it was approached by two organizations that had taken up the responsibility of assisting these clients: the Income Security Advocacy Centre (ISAC) and Pro Bono Ontario.
“Together, we’ve created a program to assist these individuals. ISAC and PBO do the initial intake with a potential client. They send Osler relevant documents, and we make an initial assessment as to the individual’s entitlement; if they have a good case, we take on the matter and file a judicial review application on their behalf. Some individuals have already filed, and need representation as their matter progresses,” says Tommy.
The ISAC continues to handle as many cases as possible and has also provided research and some key guidance on how to approach the matters.
To date, 22 Osler lawyers have assessed 31 cases and have executed retainer letters with 16 clients. Several matters currently remain under assessment. The majority of the matters have been settled, and there are two matters proceeding to a full hearing.
Graeme Rotrand, of the Litigation group, is the senior associate in charge of the CERB/CRB pro bono work, while Alex Cobb and Tommy are the Litigation partners overseeing Osler’s participation in the project.
Alex also undertook the responsibility of recruiting additional law firm legal assistance and due to his efforts, Blake, Cassels & Graydon LLP and Torys LLP have begun to participate in the program as well.
Successful outcomes for clients and lawyers
While no two cases are identical, Tommy described one case that is representative of the types of people who need assistance dealing with the repayment demands and the types of outcomes the firm can achieve.
“Sierra Farr, a Litigation associate, took on a matter for an elderly musician, who earns a living by teaching music lessons and playing gigs. Initially, he was granted $26,000 in benefits but subsequently, two years later, the CRA demanded repayment. He was many months late in filing a judicial review application and desperate for help to navigate a challenging process as a self-represented litigation (or face the significant financial burden of repaying a benefit to which he was entitled),” explains Tommy.
“We commenced an application on his behalf, and settled the matter with Department of Justice, compensating him for his disbursements for filing and sending the matter back for a review by another CRA officer. We assisted in drafting the review and a few weeks later CRA confirmed he was entitled to the benefit and there was no need for a repayment.”
As for Manveer, she has had success dealing with the two matters assigned to her.
“I’m pleased to report that both of my files yielded positive outcomes. Following the second review by the CRA, both of my clients were successfully deemed fully eligible for CERB and CRB benefits. However, had these outcomes not been favourable, the next step in the process would have entailed filing an application for judicial review,” she says.
But her clients aren’t the only people who have benefited from Manveer’s involvement. Working on these cases has been good for her as well, Manveer explains.
“Engaging in pro bono work to assist individuals is incredibly rewarding, personally and professionally.
“Personally, there’s a deep sense of fulfillment that comes from using my legal skills and expertise to make a tangible difference in the lives of others, especially those who are facing financial hardship and uncertainty. Knowing that I am able to assist individuals who otherwise struggle to access legal assistance is incredibly gratifying.
“Professionally, working on these cases provides valuable opportunities for litigation skills development and learning. Each case presents unique challenges and complexities, which allows me to enhance my legal knowledge and problem-solving abilities,” she says.
Manveer’s experiences are echoed by all of the associates explains Tommy.
“Our associates are getting Federal Court experience, direct client interaction, dealing with Crown counsel, negotiating settlements, and drafting materials. It looks like some will have an opportunity to argue matters and have reported decisions issued,” he says.
But beyond the learning opportunities for the associates, the program is having a positive impact on people’s lives.
“These people are victims of poor administrative decision-making, and our associates are working to lift a significant burden for these people — the stress of dealing with CRA and the Federal Court process and the prospect of having to make significant repayments,” says Tommy.
