McDonald
J.A.:—
This
is
an
application
for
judicial
review
from
a
judgment
of
the
Tax
Court
of
Canada
dated
November
22,
1994,
which
dismissed
the
applicant’s
appeals
of
reassessments
of
his
1990
and
1991
taxation
years.
The
Tax
Court
decision
relates
to
a
disability
tax
credit
claim
made
by
the
applicant
on
account
of
the
disability
of
his
wife
Adeline
Calwell.
The
applicant
appeared
on
his
own
behalf
in
the
Tax
Court.
The
issue
was
whether
the
applicant’s
wife
was
suffering
from
a
severe
and
prolonged
physical
impairment,
the
effect
of
which
markedly
restricted
her
ability
to
perform
the
basic
activity
of
daily
living
which
would
entitle
him
to
a
disability
tax
credit.
In
support
of
his
claim
that
his
wife
was
disabled,
the
applicant
produced
a
four
page
medical
report
from
Dr.
Brian
Heller
dated
November
9,
1994,
in
which
the
doctor
detailed
the
extensive
medical
history
of
Mrs.
Calwell
since
he
began
treating
her
in
November
of
1982,
including
substantial
problems
and
treatment
in
1990
and
1991,
the
years
in
issue
in
this
application.
He
concluded
his
report
by
saying:
Upon
review
and
assessment
of
Mrs.
Calwell
and
her
significant
ast
history
up
to
May
1991,
it
was
apparent
that
her
multitude
of
medical
problems
had
resulted
in
her
having
a
severe
impairment
that
quite
markedly
restricted
her
activities
of
daily
living.
During
her
significant
illnesses,
it
was
apparent
that
she
required
assistance
with
personal
care
and
mobility
was
quite
reliant
on
her
husband.
Her
ongoing
disabilities
appeared
to
be
prolonged
and
as
well,
permanent.
When
Mr.
Calwell
tendered
the
report,
counsel
for
the
Minister
objected
to
its
admission
into
evidence
since
the
author,
Dr.
Heller,
was
not
being
called
to
testify.
The
trial
judge
accepted
the
report
but
he
said
its
contents
would
be
given
limited
weight
since
Dr.
Heller
would
not
be
available
to
give
direct
evidence
and
be
subject
to
cross
examination.
During
this
discussion
the
trial
judge
offered
to
adjourn
the
case
until
later
in
the
same
week,
but
Mr.
Calwell
advised
the
Court
that
Dr.
Heller
could
not
appear
at
any
time
that
week.
Mr.
Calwell
also
advised
the
Court
that
he
“counted
a
lot
on
this
report”.
Mr.
Calwell
testified
at
some
length
as
to
his
wife’s
many
and
varied
disabilities
including
her
inability
to
care
for
herself.
The
only
witness
to
testify
for
the
Minister
was
Dr.
Gilles
Goulet
who
is
a
qualified
medical
doctor
residing
in
Montreal
and
who
was
a
medical
advisor
to
the
Department
of
Health
and
Welfare.
Dr.
Goulet
had
never
seen
or
treated
Mrs.
Calwell.
Dr.
Goulet
had
prepared
a
medical
opinion
and
report
dated
October
20,
1994,
based
solely
on
limited
medical
data
contained
in
Disability
Tax
Credit
medical
reports.
Dr.
Heller
completed
two
such
forms
in
1989
and
1991,
and
for
the
department
Dr.
Richard
Welsh
filled
out
a
form
in
1992,
not
a
year
under
review.
Mrs.
Calwell
also
filled
out
a
questionnaire
which
gave
some
limited
insight
into
her
disabilities.
There
was
no
evidence
as
to
what
assessment
Dr.
Welsh
made
of
Mrs.
Calwell.
He
concluded,
however,
that
she
had
a
severe
prolonged
impairment
but,
in
his
view,
the
impairment
did
not
markedly
restrict
her
ability
to
perform
a
basic
activity
of
daily
living.
Dr.
Heller,
the
treating
physician,
concluded
both
in
1989
and
in
1991
that
she
was
totally
disabled.
It
is
clear
from
the
evidence
that
Dr.
Goulet
saw
Dr.
Heller’s
report
after
completing
his
own
and
although
he
acknowledged
that
it
gave
the
“whole
history
of
the
case”
he
was
unwilling
to
change
his
opinion.
It
is
clear
that
Dr.
Heller
was
a
key
witness
in
this
case
and,
in
our
view,
his
unavailability
to
testify
led
to
adverse
inferences
being
drawn
against
the
applicant.
The
proposal
to
adjourn
until
later
the
same
week
was,
in
our
view,
totally
insufficient
to
ensure
that
the
applicant
received
a
fair
hearing,
particularly
since
it
was
known
that
Dr.
Heller
was
unavailable.
While
we
recognize
that
this
matter
was
heard
pursuant
to
the
informal
procedures
established
by
the
Act,
for
Mr.
Calwell
to
have
been
afforded
a
fair
hearing
it
should
have
been
made
clear
to
him
that
the
report
which
was
pivotal
to
his
case
would
not
be
given
the
same
weight
as
it
would
have
had
Dr.
Heller
been
present,
and
his
own
evidence
could
not
simply
be
substituted
for
that
of
Dr.
Heller
in
his
absence.
Further
explanation
should
also
have
been
provided
concerning
the
availability
of
not
only
an
adjournment
but
of
subpoenas
to
ensure
that
necessary
witnesses
are
present
when
required.
The
failure
to
call
the
author
of
the
key
report
in
this
case
may
have
been
due
to
the
reticence
of
an
unrepresented
party
to
impose
upon
a
busy
professional
such
as
Dr.
Heller.
Court
procedures
available
to
mandate
attendance
should
have
been
explained.
In
our
view,
the
failure
of
the
trial
judge
to
explain
the
procedures
available
to
Mr.
Calwell
to
compel
the
attendance
of
Dr.
Heller
and
the
refusal
of
an
adjournment
was
unfair
in
the
circumstances
of
this
case
and
resulted
in
a
denial
of
natural
justice.
In
light
of
these
findings,
the
application
will
be
allowed,
the
judgment
of
the
Tax
Court
will
be
set
aside
and
the
matter
will
be
returned
to
the
Tax
Court
for
rehearing
and
redetermination
in
a
manner
not
inconsistent
with
these
reasons.
Application
allowed
Email this Content