Executive Summary: Key Legal and Evidentiary Issues

• Frank Suh, a self-employed kinesiologist, was found ineligible for the Canada Recovery Benefit (CRB) because his net self-employment income fell below the mandatory $5,000 threshold.

• Capital cost allowance (CCA) deductions claimed on his 2019 and 2020 tax returns reduced his net self-employment income below the $5,000 eligibility requirement under s 3(2) of the Canada Recovery Benefits Act.

• Procedural fairness was challenged on the basis that the CRA Officer allegedly failed to return calls and did not notify the applicant that his documentation was insufficient.

• The Court determined the duty of procedural fairness owed by the CRA in pandemic benefit reviews sits at the low end of the spectrum, and Mr. Suh was afforded adequate opportunity to be heard.

• No discretion exists for CRA officers to depart from the strict $5,000 net income threshold, even where the shortfall is marginal and the benefit serves a remedial purpose.

• Reliance by the Officer on the applicant's originally filed tax returns — including CCA deductions — was found to be reasonable and consistent with prior jurisprudence.

Background and facts of the case
Frank Suh is a self-employed kinesiologist affiliated with the British Columbia Association of Kinesiologists. When public health restrictions imposed during the COVID-19 pandemic prevented him from providing in-person services, he applied for and received both the Canada Emergency Response Benefit (CERB) and the Canada Recovery Benefit (CRB) — temporary income support measures provided by the Government of Canada for workers who were adversely affected by the pandemic.
The Canada Revenue Agency (CRA) subsequently initiated a review of Mr. Suh's eligibility for both benefits. On January 24, 2023, the CRA sent him a letter outlining the eligibility criteria and specifying that he needed to demonstrate he had earned at least $5,000 of employment and/or net self-employment income in 2019, 2020, or in the 12 months before his application. Mr. Suh provided several documents in response on March 6, 2023.

Income reporting and the $5,000 threshold
On his 2019 income tax return, Mr. Suh reported $19,196 in gross professional income and a net professional income of $4,608. On his 2020 tax return, he reported $9,241 in gross professional income and a net professional income of $4,036. One of the reasons for the discrepancy between his gross and net income was that Mr. Suh chose to deduct capital cost allowance (CCA) from his self-employment income. These deductions, while reducing his tax liability, also brought his net income below the $5,000 threshold required for CRB eligibility under s 3(2) of the Canada Recovery Benefits Act, SC 2020, c 12, s 2.

The CRA's first and second reviews
On January 28, 2024, following several telephone calls with Mr. Suh, the CRA determined he was ineligible to receive either the CERB or CRB because he did not meet the $5,000 requirement. Mr. Suh requested a second review and submitted additional documents to the CRA on January 29, 2024, and June 3, 2025. The second reviewer found that Mr. Suh had earned more than $5,000 in gross income, but less than $5,000 in net income. By virtue of s 1(1)(a) of the Canada Emergency Response Benefit and Employment Insurance Emergency Response Benefit Remission Order (SI/2021-19), Mr. Suh was not required to repay the CERB benefits. However, the Remission Order did not apply to the CRB. Accordingly, the second reviewer considered Mr. Suh's net self-employment income for the purpose of the CRB and found it was below the $5,000 threshold, rendering him ineligible to receive the CRB.

Procedural fairness arguments
Before the Federal Court, Mr. Suh challenged the procedural fairness of the Officer's decision. He argued that the Officer had repeatedly failed to respond to his telephone calls and should have contacted him if the information he submitted was not sufficient to prove his eligibility, asserting he was deprived of a meaningful opportunity to be heard. The Court found the record did not support Mr. Suh's position. The Officer had attempted to contact Mr. Suh on a number of occasions before speaking to him on May 1, 2025. The Officer's affidavit explained her procedure for recording missed telephone calls and affirmed that she did not miss any from Mr. Suh before making her decision. Although Mr. Suh claimed he had records that show the opposite, he did not include them in his application record. The Court further noted that Mr. Suh was informed of the eligibility requirements — including that self-employment income was assessed on a net basis — both in writing on January 24, 2023, and during a telephone call with the CRA on October 30, 2023. During his telephone conversation with the Officer on May 21, 2025, Mr. Suh was asked to provide any additional information before June 5, 2025, and he submitted further documentation on June 3, 2025. The Court concluded that the duty of procedural fairness owed by the CRA to an applicant for pandemic benefits is at the low end of the spectrum, and that Mr. Suh knew the case to meet and was given an opportunity to be heard. The Officer's decision was procedurally fair.

Reasonableness of the decision
Mr. Suh also challenged the reasonableness of the Officer's decision, arguing that his declared net income of $4,608 in 2019 was only slightly below the $5,000 threshold and that the decision to find him ineligible for the CRB was disproportionate, considering the remedial purpose of pandemic benefits. The Court, applying the standard of reasonableness as set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, held that the $5,000 net income threshold is strict and that there is no discretion for a CRA officer to depart from the eligibility requirements in the interest of fairness. The Court also found it was reasonable for the Officer to rely on the revenue and expenses Mr. Suh claimed on his tax returns. Even if Mr. Suh had amended his tax returns to reduce the amount of CCA he claimed — which he did not do — the Court noted it is reasonable for the CRA to rely on a taxpayer's net income as originally reported, taking into account CCA deductions. The Court distinguished Mr. Suh's reliance on El Harim v Canada (Attorney General), 2023 FC 1689, noting that, unlike in that case, there was no suggestion the Officer had ignored or misapprehended any of the information provided by Mr. Suh.

Ruling and outcome
Justice Simon Fothergill of the Federal Court dismissed the application for judicial review on April 30, 2026, finding the Officer's decision was justified, intelligible, and transparent, and therefore reasonable. The Respondent, the Attorney General of Canada, did not seek costs, and the application was dismissed without costs. Mr. Suh, who represented himself, was the unsuccessful party. No specific monetary amount was ordered or awarded in this proceeding, as the case concerned eligibility for a government benefit rather than a damages claim.