Thousands if not millions of non-working people (those who did not earn the $5,000 CERB threshold) illegally collected billions of dollars and now do not want to pay it back. The federal government is right to go after them. These people took advantage of a hurried design with few safeguards and took advantage of the largesse of Canadians. The design encouraged people to stop working and they would not go back when their employers wanted them back and now they want to keep money they knowingly collected while ineligible.
Pandemic programs like the CERB were rushed out the door with massive encouragement by governments for people to apply for them, collect and stay safe. The rules changed over and over in the early days. Even now, legacy rules (that are still freely available) online contradict each other.
Social assistance recipients (about 5% of Canada’s population or 1 in 20 people) were routinely legally ordered to apply for the CERB and were threatened with sanctions and penalties if they did not. Yes, there is law that forces recipients to apply for benefits even though they may not be eligible for them.
Pandemic benefits were largely clawed back from other benefits they received.
In the aftermath, the rules surrounding pandemic benefits were greatly tightened up in the following ways:
1. The $5000 threshold in income was restricted to the incomes covered in the legislation – much more restrictive than was communicated on websites e.g., Honourariums are noted as qualifying income online but are not covered in CERB legislation.
2. The $5000 had to be received not just earned. Many people worked but did not receive their pay because of pandemic business distress and failure. But people who earned money but did not receive it are being retroactively made ineligible for CERB. This rule not only makes no sense – CRA routinely will not accept any explanation of difficulties in obtaining documentation of earnings unless they are taken to Tax Court.
3. CERB claimants were retrospectively required by the Tax Court to have bookkeeping of near forensic accounting quality and detail to prove their eligibility. If appellants can not produce detailed accounts, they are often found ineligible.
4. Claimants who ‘just missed’ in terms of their eligibility were sanctioned. The rules contained no exceptions whatever nor any room for Judges to make findings of eligibility. Exceptionality that applies to almost all programs is completely absent for pandemic benefits.
5. Hardship rules that normally apply are being significantly tightened to disallow longer payment terms.
6. Over $50 million in new funds were allocated in the Federal Budget to chase down low-income people who were found ineligible for benefits despite the many contradictions in the communications material and administration.
All of this is turning out to be incredibly destructive and is overshadowing the fact that Canada managed to meet its poverty goals nine years early. This incredible achievement – instead of being celebrated – is being falsely seen by some as a failed experiment in protecting our most vulnerable residents.
There is a lovely inspirational piece called Desiderata that was written by Max Ehrmann in 1927. Excerpts include:
“Go placidly amid the noise and the haste, and remember what peace there may be in silence. As far as possible, without surrender, be on good terms with all persons.
Take kindly the counsel of the years, gracefully surrendering the things of youth.”
Decades later, there was a spoof written called the Deteriorata which included:
“Go placidly amid the noise and waste,
And remember what comfort there may be in owning a piece thereof.
Avoid quiet and passive persons, unless you are in need of sleep.
And let not the sands of time get in your lunch.
Hire people with hooks.”
Deteriorata also has a line that has stuck with me over the years:
“Consider that two wrongs never make a right, but that three do.”
This line is meant to be funny but it is not that humourous when it comes to the federal government’s actions as they relate to CERB and CRB payback.
The two largest pandemic income programs payable to individual applicants were the CERB and the CRB.
The first ‘wrong’ (as noted above) is that they were both badly designed in order to get them out of the door quickly. Given the time the government had to design them, they did extraordinarily well. Still, they were both badly designed.
The second ‘wrong’ is that – following the complete dismantling of both programs – the government of Canada decided to vigorously enforce collections from people found ineligible based on the ‘black letter’ of the law even though eligibility requirements are contradicted by CRA websites and the CRA websites even contradict each other.
The third wrong is that the government – in the face of all the problems in the design, rollout, communications, and negative program interactions has chosen to redouble its enforcement efforts and ignore its usual protocols to recognize hardship.
As the Deteriorata stipulates: “two wrongs never make a right, but that three do”.
I would now like to focus on just two articles in the Globe & Mail. One is an Op-ed and the other is a news story.
Let us start with the op-ed by Amin Mawani, a professor of Taxation.
This is how he concludes his contribution:
“News commentators have been speculating whether the CRA would consider forgiving such repayments if the misinterpretation of CERB eligibility rules were made in good faith. However, overlooking such repayments would be tantamount to penalizing those who took the trouble to read and understand the CERB rules correctly. Repayments are clearly material to Canadians earning in the vicinity of $5,000 annually. However, forgiving CERB repayments could be inequitable to taxpayers who refrained from applying for the benefit because they understood the CERB rules or sought proper tax advice.”
Having studied CRA websites, the relevant law, the huge number of contradictions, the changes made mid-flight, the ineligible applicants who were forced to apply – along with the absolute impossibility for significant numbers of people to have known whether they were eligible within the time limits set by CRA – I respectfully but categorically reject the notion than anyone could “…read and understand the CERB rules correctly.”
In fact, I did take the time to relentlessly read the law and the websites, frequently phoned CRA and discussed fine points with lawyers and still got several things wrong – but only after reading decisions made by Canada’s Tax Court well after the programs had been dismantled.
I also know several people who did read all the rules and decided not to apply but who discovered later that they would have been eligible for benefits.
The simplest example is people who did not apply because they had not been paid by a pandemic-stressed employer but who were later paid by their employers but after the program’s eligibility window had been closed.
Now I need to understand why forgiving repayments for people who collected the CERB or CRB in good faith is unfair to someone who did not apply in the first instance.
The unfairness simply does not stem from people who collected benefits in error.
It stems from the unfairness, the lack of clarity, the timing, the mistakes, and the poor communications of the rules.
The news story is Bill Curry’s piece on the discovery that up to 65% of applicants were not eligible for the CERB and CRB.
“An internal Canada Revenue Agency audit of more than $5-billion in CERB and other emergency payments to individuals during the pandemic has determined that about 65 per cent went to ineligible recipients who must pay back the money.
The agency says it targeted the audits to focus on high-risk cases and “fully expected” that a high percentage of the payments would be ruled ineligible. The audited amount is a small fraction of the tens of billions of dollars paid to individuals during the pandemic.”
The problem with the CRA audit is not that they discovered that 65% of the applicants were likely ineligible. That part is reasonable and understandable. The problem is that the rules were:
- Unfair and unreasonable
- Poorly communicated
- Frequently changed while the programs were in place
- Often changed after the fact; and
- Often impossible to follow
Add to that the almost two million Canadians who were recipients of programs that contained regulations that required them to apply whether eligible or not.
And add to that the fact that many programs ranging from subsidized housing to welfare to disability dined out on CERB and CRB clawbacks that made them a mint of money over the duration of the federal programs.
Unlike the CERB and CRB recipients who are now being hounded for repayments, the government programs that offset the CERB and CRB are laughing all the way to the bank.
Now Canadians are forced to watch a charade of an end game that is clogging our courts, hounding some of our poorest residents and seriously reducing the prospects of reducing poverty in Canada by placing programs that effectively reduced poverty into disrepute.
We can only wish that things were different.
Js June 3, 2023