The taxpayer, who was cognitively disabled from a brain injury and had limited ability to represent himself, used an agent to dispute assessments that treated (consistently with judgments on GST appeals by him for much of the same period) amounts as having been received by him qua employee, so that they were employment income for ITA purposes. During the course of the hearing, the Tax Court expressed significant concerns about the continued representation of the taxpayer by an agent who had been identified in other proceedings as a vexatious litigant, whereupon that agent resigned. The taxpayer then requested an adjournment to seek advice as to whether he should be represented by counsel, which the Tax Court refused, without giving reasons. The taxpayer was given the choice of discontinuing his appeal - or proceeding with his appeal on his own, which he did.
Monaghan JA found (at para. 31) that “the Tax Court breached Mr. Shull’s procedural fairness rights by refusing the adjournment.” However, she stated (at para. 32):
A finding of a breach of procedural fairness renders a decision liable to be overturned … . However, where the result is inevitable, a court may exercise its discretion to not grant a remedy for the breach … .
The latter narrow exception applied: the taxpayer’s appeal had “no prospect of success” (para. 34). The taxpayer’s appeal was allowed, but only to reverse the costs award made against him.