October 07, 2011

Joseph A. Calwell (Applicant) v. Her Majesty the Queen (Respondent)

95 DTC 5615
Federal Court of Appeal
October 18, 1995
(Court File No. A-710-94.)

— Income Tax Act, R.S.C. 1985, Chapter 1 (5th Supp.), ss. 169 and 171.

The taxpayer appealed to the Tax Court of Canada under the Informal Procedure following the Minister’s disallowance of his claim for a disability tax credit in respect of his wife W. In support of his claim that W was disabled, the taxpayer had produced a four-page medical report from a doctor, H, in which the conclusion was reached that W had a severe impairment which quite markedly restricted her activities of daily living. H, however, had not been called to testify with the result that the Tax Court Judge admitted his report (over the objections of the Minister) but gave it limited weight. During the discussion the Tax Court Judge offered to adjourn the case until later the same week, but the taxpayer indicated that H could not appear at any time that week. The Tax Court Judge went on to dismiss the taxpayer’s appeal. The taxpayer applied to the Federal Court of Appeal for a judicial review of the Tax Court Judge’s findings.

Held: The taxpayer’s application was allowed. For the taxpayer to have been afforded a fair hearing, it should have been made clear to him that H’s report, which was pivotal to his case, would not be given the same weight as it would have been given had H been present. Further explanation should also have been provided to the taxpayer concerning the subpoena process. The Tax Court Judge’s failure to explain to the taxpayer the procedures available to him resulted in a denial of natural justice. The judgment of the Tax Court was accordingly set aside, and the matter was returned to that Court for rehearing and redetermination in a manner not inconsistent with the foregoing.