Citation: 2012 TCC 453
Date: 20121218
Docket: 2012-1659(IT)I
BETWEEN:
BRENDA WALKOWIAK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Boyle J.
[1]
This informal appeal
involves Ms. Walkowiak’s entitlement to a disability tax credit for the 2010 taxation
year in respect of her diagnosed Attention Deficit-Hyperactivity Disorder
(“ADHD”) and her diagnosed DSM-IV Learning Disability not otherwise specified.
It is not disputed that Ms. Walkowiak has these two prolonged impairments in
her mental functions for purposes of the disability tax credit. The only issue
to be considered and determined in this case is whether the effects of the
impairments to her mental functions are such that her ability to perform a
basic activity of daily living is markedly restricted. Specifically, the
question is whether Ms. Walkowiak is unable to, or requires an inordinate
amount of time to, perform mental functions necessary for everyday life
including her memory function, her problem solving, goal setting and judgment
taken together, and her adaptive functioning.
[2]
Her Notice of Appeal
included the issue of one of her daughters’ entitlement to the disability tax
credit in 2010. However, at the hearing I was advised that her daughter’s
disability tax credit entitlement was resolved favourably by the Canada Revenue
Agency (“CRA”) in response to a ten year taxpayer relief application made in
respect of her daughter, which included the year 2010. Accordingly, the issue
relating to her daughter has been withdrawn on the understanding and agreement
of the parties that the CRA has committed to reassess on this basis under the
taxpayer relief provisions of the Income Tax Act for a number of years
including 2010.
Facts
[3]
Ms. Walkowiak is a
trained Health Care Aide and has worked for Alberta Health Services for more
than 10 years. She has been married for more than 17 years and two of her
children have disabilities. In 2010 she enrolled in college to pursue her
Licenced Practical Nurse designation.
[4]
Her Alberta Health
Services employment has her working six – 10 hour shifts every two weeks. As a
Health Care Aide she provides home care by way of taking care of sick children
in order to permit their parents to sleep et cetera. She attends at clients’
homes on her own for this purpose. She has a driver’s licence and drives
herself to the homes at which she works. She does not think that her Alberta
Health Services supervisor knows she has a disability because she works so hard
and repetitively to overcome it.
[5]
In her own home life,
Ms. Walkowiak has raised her children, including at times alone when she was
not working and her husband continued to work full time. She is able to care
for her children during the day alone while her husband is at work and then
work night shifts. Within her home, her husband attends to the groceries and
meal preparation most of the time. She is able to shop for groceries and
prepare meals and does so from time to time and at times has done so over the
years.
[6]
Ms. Walkowiak described
a difficult childhood in several respects. She has suffered from depression and
anxiety throughout her adult life. She is on prescription medication for that.
[7]
Given the difficulty
she has, combined with her children having difficulties of their own, they
attend regular family counselling sessions. When she raised in that context the
fact that she found herself struggling upon her return to school in 2010, the
family psychologist suggested she discuss the issues with student services
available to her on campus.
[8]
The initial assessment
was done by a psychologist who completed the T2201 prescribed form. Under the
heading Effects of Impairment he described that Ms. Walkowiak requires ongoing
use of prescription medication to increase her behaviour in regard to working
memory and recommends the use of assisted software to accommodate learning and
reading issues in employment and academic settings. This was based upon his
assessment of her at the request of Alberta Employment and Immigration to
support her academic program. In his accompanying letter he says Ms. Walkowiak
requires ongoing prescription medication to address attentional concerns and
acknowledges that this is in place through her family physician. He says she
also requires the following: “support with study/organizational issues, a quiet
work/testing environment, a reader/audio-version for exams and extra exam time.
She will benefit from the assistance of a tutor to address the issues of the
diagnosis, as they pertain to the more academic requirements of the program. In
addition, she requires reading assistance software to accommodate her learning
disability.”
[9]
That is the complete
discussion by that psychologist of the effects of Ms. Walkowiak’s issues of
ADHD and Learning Disability. Ms. Walkowiak’s request of CRA for the disability
tax credit based upon this initial form was not accepted, presumably because it
largely appeared to only affect her academic environment.
[10]
In response Ms.
Walkowiak had another psychologist whom she was familiar with through the
school for the disabled which her children attend, prepare a second T2201
certification for her. In that form, the second psychologist describes the
effects of impairment as “both disorders markedly impact Brenda’s ability to
engage in expected mental functions. Also significantly impacts her academic,
social – emotional, and daily living functioning.”
[11]
The letter accompanying
the form indicates that both of the disorders “significantly interfere” with
the taxpayer’s academic, daily living and social and emotional functions. It
describes the taxpayer as someone who struggles with the pace of learning and
reading and who has to put in excessive amounts of time to complete work with
minimal results, and having difficulties with sustaining attention and
processing information. Her learning disability demonstrates deficits in her
verbal reasoning abilities and working memory. The verbal reasoning deficit
impacts her abilities to understand verbal information presented to her and to
express herself which can impact her in lectures, conversations and other
everyday situations requiring use of language. Her working memory deficit
impacts her ability to successfully engage in higher level thinking in everyday
context causing her difficulty in environments when a lot of information is presented
to her, which she will struggle with and may find processing information more
time consuming and requiring more of her mental energy to focus and
concentrate. The higher working memory demands will impact the speed at which
she can process information and therefore requires longer time to complete
certain tasks. These deficits impact her academically, particularly in the
areas of oral language, reading comprehension and mathematics and also impact
her in areas requiring greater academic demands such as writing. The attached
letter closes by saying Ms. Walkowiak will require support and accommodations
in her education and even into the workplace as her symptoms are “significantly
impacting her functioning.” She goes on to make a number of recommendations for
accommodation by the school in her academic life.
[12]
When CRA again turned
down her request for a disability tax credit, Ms. Walkowiak had the second
psychologist write a one paragraph letter to CRA Appeals Division expressing
her belief that the taxpayer was “markedly restricted” in the mental functions
necessary for everyday life. This letter briefly addresses difficulties her
disorders “may” cause her outside her schooling environment in terms of
adaptive functioning. She says that given the diagnosed disability and
disorder, the taxpayer will “likely” take an inordinate amount of time to
complete tasks related to daily living skills, to express herself, to remember
tasks without reminders, to find solutions to problems or to make appropriate
judgments without assistance and to engage in organizing and executing of
plans. She expects the taxpayer will continue to struggle in these areas
throughout her life and struggle to meet expected demands in academic, social
and daily living environments.
[13]
Neither of these
psychologists testified at trial or provided any further written information
expanding upon their descriptions.
[14]
Ms. Walkowiak testified
that as a result of her depression and anxiety issues and her ADHD and Learning
Disability, for which she is also taking medication, she needs help with
everyday life situations. She feels she can be taken advantage of and does not
know who to trust. She chooses to stay home a lot. She confides in her husband
for guidance in these areas. She acknowledges she has difficulties with social
and personal relationships which she attributes to her medical conditions.
[15]
Mr. Walkowiak also
testified briefly. He described the taxpayer as having no concept of time
management and needing his help or she is otherwise always late. He described a
house full of stickers to remind her what to do and finally, he estimated that
she spends perhaps four times as much time as an average person would on her
studies.
The Disability Tax Credit Provisions
[16]
Subsection 118.3
provides that in order for Ms. Walkowiak to be successful she must first have a
“prolonged impairment in mental functions”. She has met this requirement.
[17]
The second requirement
is that the effects of her impairment in mental functions must be such that her
ability to perform a basic activity of daily living is markedly restricted. For
this purpose, the legislation provides that a basic activity of daily living
which must be markedly restricted must be a basic activity of daily living in
relation to mental functions necessary for everyday life. Mental functions
necessary for everyday life are defined in the legislation to include i)
memory, ii) problem solving, goal setting and judgment (taken together) and
iii) adaptive functioning. The legislation further provides that in order to be
markedly restricted in her mental functions necessary for everyday life, she
must be unable or require an inordinate amount of time to perform those mental
functions all or substantially all of the time.
[18]
The third requirement
is that a medical practitioner must have certified in prescribed form that the impairment
is a severe and prolonged impairment in her mental functions the effects of
which are as described above. Ms. Walkowiak has had two psychologists prepare
such forms and file them as required. While neither of these forms alone
clearly support the required conclusions regarding the effect of her
impairment, I am prepared to assume Ms. Walkowiak has met this requirement as
well. However, the filing of completed medical practitioners’ forms are not
determinative of her entitlement to the disability tax credit. This Court must
also be satisfied that the second requirement described above is in fact met
based upon the evidence before it. Each of these psychologists supplemented
their completed form with letters providing additional comments and
information, none of which has been challenged.
[19]
A copy of the relevant
parts of the disability tax credit legislation is attached hereto as an
appendix.
[20]
Ms. Walkowiak is
entitled to have this Court decide her particular appeal on her particular
facts. In applying the law to her facts, I need have regard to the comments of
the courts in earlier decisions addressing how the legal provisions are to be
interpreted and applied.
[21]
I find particularly
instructive the comments of the Federal Court of Appeal in Johnston
v. The Queen, 98 DTC 6169, [1998] FCJ No. 169 (including the passage
quoting from Radage v. The Queen, 96 DTC 1615 in this Court) as follows:
Purpose and History of the Legislation
10 The purpose of sections 118.3 and
118.4 is not to indemnify a person who suffers from a severe and prolonged
mental or physical impairment, but to financially assist him or her in bearing
the additional costs of living and working generated by the impairment. As
Bowman T.C.J. wrote in Radage v. R.1 at p. 2528:
The legislative intent appears to be to
provide a modest relief to persons who fall within a relatively restricted
category of markedly physically or mentally impaired persons. The intent is
neither to give the credit to every one who suffers from a disability nor to
erect a hurdle that is impossible for virtually every disabled person to
surmount. It obviously recognizes that disabled persons need such tax relief
and it is intended to be of benefit to such persons. (Emphasis
added)
The learned Judge went on to add, at p.
2529, and I agree with him:
If the object of Parliament, which is to
give to disabled persons a measure of relief that will to some degree alleviate
the increased difficulties under which their impairment forces them to live, is
to be achieved the provisions must be given a humane and compassionate
construction. (Emphasis added)
11 Indeed, although the scope of these
provisions is limited in their application to severely impaired persons,
they must not be interpreted so restrictively as to negate or compromise the
legislative intent. (Emphasis added)
43 … It is clear
that these tax credit provisions were designed with severely handicapped
individuals in mind, but individuals who do not require constant care
for the basic activities of daily life. …. (Emphasis
added)
Conclusion and Reasons
[22]
It is clear that Ms.
Walkowiak faces challenges and struggles as a result of her conditions in many
aspects of her day-to-day life. This can only be heightened by the fact that
she also has two children with disabilities in their mental functions attending
counselling and special schools et cetera.
[23]
However, I am unable to
conclude on the evidence I have seen and heard that she is markedly restricted
all or substantially all of the time and unable to, or requires an inordinate
amount of time to, perform mental functions necessary for everyday life such as
memory, problem solving, goal setting and judgment taken together, or adaptive
functioning.
[24]
The Appellant has developed
strategies to compensate for her difficulty remembering things or processing
information whether by way of spending greater time on her studies, working
things through with her husband, or posting sticky notes of lists of things to
do. Even in her school work, she is able to function with the additional
accommodations and concessions made.
[25]
While challenged, as
many are, she has adapted in her daily functioning to the extent that she has
raised her own children throughout, often quite independently and is a
homecare worker with the government caring for children independently. Indeed,
she believes that as a result of her additional efforts, her employer may not
be aware of her disabilities.
[26]
In her chosen line of
studies and work, she is a qualified Health Care Aide able to hold long-term
work in her area and maintain her qualifications. She is, with academic
accommodation, completing college courses to become a Licensed Practical Nurse.
She follows her prescribed medication regime which
minimizes the help she needs with everyday life situations.
[27]
She was able to both
testify and represent herself in Court. She did so in a clear, understandable
manner and she was well able to answer questions directed at her by the Crown
counsel and by the judge. She seemed well-prepared. Although I do not know how
much time she may have spent preparing, she was clearly focused and organized
with her paperwork and her thoughts. While I do not know how much assistance she
may have received from her husband in preparing and whether that exceeded what
might normally be expected, I note that she told almost all of her story
herself and her husband’s testimony was very brief and only to supplement her
evidence in a very modest way.
[28]
Based upon all of this,
I can conclude that she is not markedly or severely restricted all or
substantially all of the time, unable or requiring an inordinate amount of time
to perform mental functions necessary for everyday life. It instead appears to
be something she is able to manage and adapt to in her everyday life by the use
of medication, strategies such as use of task lists and seeking advice and help
from her husband, seeking accommodation in the academic area where she is
particularly challenged and her impairments have particular effect, and in her
work setting where she adapts by working hard and repetitively.
[29]
This Appellant cares
for her children and the children of others on her own. She drives around town
alone. She can shop and complete retail transactions independently. She
prepares family meals, independently. She adheres to her prescribed medication
regime. She holds a job with significant responsibility for others without
supervision or assistance. She is able to maintain and upgrade her nursing
college qualifications. Her abilities in all of these everyday life areas taken
together confirm clearly that her ADHD and Learning Disability do not cause her
to be markedly restricted when performing or trying to perform mental functions
necessary for everyday life. Quite the contrary, it underscores her true
abilities relative to many other Canadians facing mental health issues.
[30]
While there is no doubt
that the challenges faced by the Appellant in her particular circumstances as a
result of her ADHD and Learning Disability are not at all insignificant, they
do not rise to the severity of meeting the meaning of markedly restricted
required to qualify for a disability tax credit. In Ms. Walkowiak’s particular
facts, I am bound to apply the disability tax credit legislation as enacted by
Parliament and as interpreted by the Federal Court of Appeal. I am therefore required
to dismiss this appeal.
Signed at Ottawa, Canada this 18th day of December 2012.
"Patrick Boyle"
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