Dockets: T-1209-24
T-1189-24
Citation: 2026 FC 746
Ottawa, Ontario, June 8, 2026
PRESENT: Madam Justice Conroy
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BETWEEN:
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CHUN CHEUNG
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS AND JUDGMENT
[1] The Applicant, Mr. Chun Cheung, seeks judicial review of a second-level decision of a Canada Revenue Agency [CRA] officer confirming that he was not eligible for COVID-19 relief benefits that he received in 2020 and 2021.
[2] The CRA concluded that the Applicant was not eligible as he had not met the minimum income threshold for the prescribed period. The officer found that the income relied on by the Applicant to establish his eligibility was rental income and not self-employment income.
[3] For the reasons that follow, the judicial review is dismissed.
I. MATERIAL FACTS LEADING TO THIS APPLICATION
[4] The Applicant has operated an Airbnb since 2018. This was his sole source of income. During the COVID-19 outbreak, the Applicant could not operate the Airbnb. He applied for and received Canada Emergency Relief Benefits [CERB] and later Canada Relief Benefits [CRB].
[5] By letter dated March 9, 2023, the CRA informed the Applicant that it would be assessing his eligibility for the CERB and CRB he received. With respect to the CERB, the letter requested documents to establish that he earned at least $5000 in eligible income in 2019 or in the 12 months prior to the date he applied for CERB. With respect to the CRB, the letter requested documents to establish that he earned at least $5000 in eligible income in 2019, 2020, or in the 12 months before the date he applied for CRB.
[6] On March 23, 2023, the Applicant provided submissions in response to the validation letter. The submissions attached a report of his Airbnb activity for 2019, and a Statement of Real Estate Rentals reflecting gross rents of $11,712.00, and net income of $1,231.80, as well as a cover note which provided as follows:
I, Chun Cheung, reporting as requested. I am a self-employed Airbnb host for the year 2019, I have attached a report for my 2019 Airbnb activity and a Statement of Real Estate Rentals.
My Earning for the year 2019 is $11712, which exceeded the requested amount for $5000.
My accountant made a mistake when he reported the tax. I am under Self-employment business, not rent. If there are any questions, please contact my accountant ….. Thanks.
[7] On March 28, 2023, with the permission of the Applicant, the CRA officer spoke to his son, as the Applicant has difficulty communicating in English. On the call, the officer explained that rental income does not qualify as income to meet the income requirement to be eligible for CERB and CRB. The officer further explained that “even if it was changed into self employment income that [the CRA] would have to go off of Net business income”
. The CRA’s notes from the call reflect that the Applicant and his son “got upset”
when they received this information.
[8] By letter dated March 31, 2023, the CRA informed the Applicant that he was not eligible for CERB or CRB. The CRA’s notes indicate that the decision was based on a determination that the only proof of income provided was for rental income.
A. Second Level Review - Decision Under Review
[9] On April 12, 2023, the Applicant and his son called the CRA regarding a second level review of his eligibility. The Applicant’s son advised that his father was in the process of amending his taxes to show he earned self-employment income, not rental income. The CRA officer directed him to Canada.ca to research the difference between rental income and business income. The notes from the call state: “TP will see about requesting a 2nd review after taxes are amended.”
[10] After requesting a second level review by a different CRA officer, the Applicant filed a second set of submissions. Of note, the Applicant stated in these submissions that he “updated his tax return for the year 2019.”
[11] The Second Level Review Report sets out the basis for the CRA’s decision as follows:
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The Applicant’s 2018 tax return shows only rental income;
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Income from the Airbnb was originally reported on his 2019 tax return as rental income. He filed a reassessed 2019 tax return which changed the characterization of this income from rental to self-employment income;
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On a call on April 18, 2024, between the second-level reviewer, the Applicant, his accountant and a Mandarin translator, the CRA asked about the discrepancies between the original and the revised 2019 tax returns. The revised return shows a gross business income of $5,856.00, with a net self-employment income of $5,570 – meaning that the deductible expenses which were recorded as $9,248 under the initial 2019 return, were reduced to only $286. The Applicant’s account “said that the self employment is different than rental income as the revenue and expenses when claiming self employment results in the amounts being different than what is allowed to be reported from rental income”
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The Applicant filed no supporting documents to show why the amounts on the original tax return and the revised return were so different; and
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When asked by the CRA what services he provided with the Airbnb he said basic necessities such as maintenance.
[12] The CRA officer found that despite the re-characterization of the Applicant’s income in the revised 2019 tax return, “the [A]pplicant’s income appears to have been rental income where the [A]pplicant was only providing basic necessities to the Airbnb, and the income reported on their 2019 tax return matches their 2019 statement of real estate rentals”
. Having found that the minimum income requirement was not met, the officer concluded the Applicant was not eligible for CERB or CRB.
[13] The Applicant was informed of the result of the second level review by letter dated April 24, 2024.
II. ISSUES AND STANDARD OF REVIEW
[14] The Respondent raises a preliminary issue about the admissibility of the Applicant’s affidavit evidence and also a concern about the extent of the assistance provided by the Applicant’s son at the hearing. His son is not a certified translator, nor a lawyer.
[15] In oral submissions the Applicant submitted that the main issue was procedural fairness. His written submissions also raise the following issues:
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a)Was the decision unreasonable because the CRA officer failed to properly understand the Applicant’s business activities through his Airbnb property?
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b)Whether he should now be liable to repay the CERB and CRB he received, when the CRA did not refuse his application for the benefits from the outset?
[16] Questions of procedural fairness are reviewed on a standard akin to correctness: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54. The duty of procedural fairness requires that the person affected by a decision have the opportunity to know the evidence and the arguments to refute and to present their case fully and fairly: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 127 [Vavilov]. The burden is on the Applicant to demonstrate there was a breach of procedural fairness.
[17] The applicable standard of review for the merits of the second level review decision is reasonableness: Vavilov at paras 23, 25. The role of the Court is to review the reasons given by the CRA and determine whether the decision was based on an internally coherent and rational chain of analysis, and that it was justified in relation to the facts and law: Vavilov at para 85. It is not the role of a judicial review court to reweigh or re-assess the evidence and come to its own conclusion: Vavilov at para 125. The onus is on the Applicant to demonstrate the decision is unreasonable.
[18] I first address the preliminary issues raised by the Respondent, followed by the grounds for judicial review.
III. ANALYSIS
A. Assistance by Applicant’s Son
[19] The Applicant is not represented by legal counsel. About a week before the hearing, he sought leave from the Court to have his son assist him during the hearing. The Applicant described having “language and communication challenges”
and asked that his son be permitted to assist with “interpreting and presenting”
his position. The request explained that his son was familiar with the case and spoke Mandarin and English fluently.
[20] The Respondent objected to the Applicant’s request as Rule 119 of the Federal Courts Rules, SOR/98-106 does not permit a party to be represented by anyone other than a lawyer.
[21] In response to the request, I provided the following directions to the parties:
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The Applicant’s son may assist the applicant during the hearing. He can sit with the Applicant during the hearing and they will be permitted to have short discussions amongst themselves as needed.
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The Applicant’s son will not be permitted to represent his father. The Federal Court Rules allow someone to represent themselves or hire a lawyer. They do not permit a non-lawyer to represent a party. Further, no evidence has been filed by the Applicant to demonstrate exceptional circumstances, such as a disability or an inability to communicate in English
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If the Applicant requires an interpreter, it is his responsibility to hire a certified translator/interpreter. (emphasis original)
[22] It became apparent early in the hearing that the Applicant’s son was attempting to translate in real time for his father and that the Applicant expected his son to communicate directly with the Court on his behalf. The Respondent justifiably raised a concern that the son was not an accredited translator.
[23] I canvassed the option of adjourning so that the Applicant could hire a translator. The Applicant forcefully objected and argued it would be unfair to adjourn “at the last minute”
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[24] Counsel for the Respondent said they were prepared to let the hearing unfold so long as the Applicant or his son’s submissions were consistent with what was in the Applicant’s Record.
[25] I ruled that the hearing could go ahead with the Applicant’s son’s assistance. In doing so I considered access to justice concerns, the guidance in Rule 3(a), and, importantly, that the Applicant knowingly consented to – indeed advocated for – his son to provide informal translation and assist with submissions. To be clear, in electing to have his son provide assistance the Applicant is bound by the translation and submissions made by his son and any consequences that may follow from that choice: Ashurova v. Canada (Attorney General), 2025 FC 428 at para 14, citing Palonek v Canada (National Revenue), 2007 FCA 281 at para 16.
[26] In addition, I wish to underline some legal principles for the Applicant’s benefit, as his submission on this issue demonstrates some misunderstanding.
[27] The general practice in Federal Court is that where a party to a judicial review is not represented by a lawyer and unable to effectively understand and communicate in English or in French, that party has a positive obligation to hire a certified or accredited translator. This is in contrast to criminal proceedings, where there is an obligation on the state to provide translation services to an accused: R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951.
[28] It was apparent from the Applicant’s pre-hearing request that he was not aware of this practice, which is why I included paragraph 3 in the pre-hearing directions.
[29] Despite the express pre-hearing direction that the Applicant hire a certified translator if he required one, the Applicant opted not to hire a translator. It is a serious matter for a party to disregard a direction from the Court. Any frustration the Applicant experienced in responding to this issue at the hearing was the result of his own choice not to follow the Court’s direction and hire a translator.
B. New Evidence not Admissible
[30] The Respondent’s written submission’s set out in an appendix several facts included in the Applicant’s affidavit, Notice of Application and Memorandum of Fact and Law that were not before the CRA when it made its decision. These facts include the details of the Applicant’s Airbnb operations and the associated services he says he provides. There are also several photos of the property attached to the Affidavit that were not included in the Applicant’s submissions to the CRA on the first or second review.
[31] The Respondent submits, and I agree, that this new evidence and information was not before the CRA when it made its decision and is therefore inadmissible. It is well established that evidence not before the administrative decision maker, generally cannot be admitted by the reviewing court: Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency, 2012 FCA 22 [Access Copyright] at para 15. There are limited exceptions to this general rule, none of which apply here: Access Copyright at para 20. The reason for this rule is that it is not the role of the Court to engage in findings of fact or decide the merits of the questions that are within the authority of the CRA.
C. Grounds for Judicial Review
[32] The crux of the dispute centres on the nature of the Applicant’s 2019 income arising from his Airbnb. There is no dispute about the income eligibility requirements for CERB and CRB, nor that rental income does not qualify to meet this income threshold: Canada Emergency Response Benefit Act, SC 2020, c 5, s 8, ss. 2 “worker”
and 5(1); Canada Recovery Benefits Act, SC 2020, c 12, s 2, s. 3(1)(d)-(e).
(1) The decision was procedurally fair
[33] At the hearing, the Applicant submitted that the main issue was procedural fairness: namely that he did not know that the issue in contention was the classification of his income as self-employment versus rental income. He contends that he only learned about this issue during a phone call with a CRA agent in June 2024, after the second level review decision was issued. Accordingly, he says he did not know he had to submit information to prove the nature of business went beyond merely renting accommodation.
[34] The evidence overwhelmingly demonstrates that the Applicant knew that the central obstacle to establishing his eligibility was that his 2019 income might be characterized as rental income, and that rental income did not count toward establishing CERB or CRB eligibility. First, the cover note on the Applicant’s first submission to the CRA on March 23, 2023, demonstrates he was alive to the issue. In that note he stated: “My accountant made a mistake when he reported the tax. I am under Self-employment business, not rent.”
Second, on a March 28, 2023, call with the CRA, the officer advised the Applicant, through his son, that the CRA “cannot use rental income and income towards CERB/CRB”
. Third, on an April 12, 2023, call a CRA officer advised him to research the distinction between rental income and business income. Indeed, as acknowledged by the Applicant, the impetus for the revision of his 2019 tax return was to overcome the CERB/CRB income eligibility threshold to change the reported nature of his income from rental to self-employed income.
[35] Accordingly, I conclude that that the Applicant knew the case to meet and had ample opportunity to fully present his case, including any documents beyond his tax return to substantiate that his income was self-employment income. There was no breach of procedural fairness.
(2) The Second Level Review was Reasonable
[36] The Applicant submits that the second level review decision was made by the CRA without a full understanding of the nature of his Airbnb operation. He maintains that his business model is not based solely on rental accommodation, but is a service-oriented model, the net proceeds of which should be counted as net self-employment income.
[37] In effect, the Applicant is asking the Court to look at the evidence anew and come to its own conclusion on the proper characterization of the Airbnb income. This is not the Court’s role in a judicial review. Instead, my role is to assess whether the second review decision was reasonable and intelligible in light of the material that was before the CRA officer and the law that binds them.
[38] While the Applicant took steps to re-assess his 2019 tax return and re-cast his Airbnb income as self-employment income, it was open to and reasonable for the second level review officer to look at the evidence before them and ultimately disagree with the reassessment.
[39] In considering eligibility for covid benefits, the CRA is not bound to accept the beneficiary’s tax assessment as sole and conclusive proof of their income: Aryan v Canada (Attorney General) 2022 FC 139 [Aryan] at para 35, and the cases that follow it. Tax returns are but one piece of evidence that the CRA may rely on to determine CERB and CRB eligibility. Canada’s tax system is based on self-assessments and self-reports. It assumes that the taxpayer is able to provide all relevant documentation in support of the return they file: Walker v Canada (Attorney General), 2022 FC 381 at para 36–37.
[40] Accordingly, it was open to the CRA to conclude that the Applicant’s revised 2019 tax return was insufficient to prove the Applicant actually earned the type of income reported, or that the income itself is from an eligible source: Aryan at para 35. Put another way, the Applicant’s income did not become eligible self-employment income simply because he amended his tax return: Sun v Canada (Attorney General), 2023 FC 1225, affirmed, 2024 FCA 152. It was reasonable for the CRA to expect additional documentation to demonstrate the income was in fact self-employment income.
[41] The basis for the CRA’s determination was clearly explained in the officer’s Second Review Report. Given the shifting characterization of the Applicant’s income, the discrepancy between the amounts reported in the original and revised 2019 tax returns, and the evidence that the Applicant provided basic necessities to the Airbnb, it was reasonable for the officer to conclude that any income earned by the Applicant in 2019 was rental income.
[42] As the Respondent notes, this Court has repeatedly upheld CRA decisions which found that Airbnb income was rental income, not self-employment income: see Khalid v Canada (Attorney General), 2023 FC 1356 at paras 20-23 [Khalid]; Smeele v Canada (Attorney General), 2023 FC 21 at para 18 [Smeele].
(3) Roll-Out of COVID-19 Relief Measures
[43] The Applicant says that, if the CRA truly believed his business was not self-employment income, they should have refused his application at the outset and never provided him with any benefits. Now, he says, he is faced with the prospect of repaying $40,000, despite the fact that he was honest and acting in good faith when he applied for the CERB and CRB.
[44] I have no reason to doubt that the Applicant applied for CERB and CRB in good faith and with an honest belief that he was eligible. However, the policy choice by the Government of Canada to adopt a “pay first and ask questions later”
approach for covid benefits does not provide a basis for this Court to interfere with the decision under review in this application: Khalid at para 25. Ultimately, CRA officers are legally bound by the legislation governing CRB and CERB eligibility. This legislation does not give CRA’s officers the power to waive the income eligibility requirements, even in cases where the recipient acted with the utmost good faith.
IV. CONCLUSION
[45] The Applicant has not established that the second level review decision by the CRA was unreasonable, nor that it was reached in a procedurally unfair manner. Accordingly, the judicial review will be dismissed.
[46] The Respondent did not forcefully advocate for costs, and I find that this is not a suitable case to order costs against the Applicant.
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