Date:
20071031
Docket: A-588-06
Citation: 2007 FCA 352
CORAM: LÉTOURNEAU
J.A.
NOËL
J.A.
TRUDEL
J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
SYLVAIN MARCEAU
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the bench at Québec, Quebec on October
31, 2007)
TRUDEL J.A.
[1]
The Income
Tax Act, R.S.C. 1985 (5th Supp.), c. 1 (the Act), allows a tax credit to an
individual who has a severe and prolonged mental or physical impairment limiting
his or her ability to perform an everyday activity, including feeding himself
or herself.
[2]
What does
“feeding oneself” mean in subparagraph 118.4(1)(c)(ii) of the Act? That
is the question raised by this appeal, which is from an amended decision of the
Tax Court of Canada on September
12, 2006 by
Judge Tardif (the judge).
Facts and proceedings
[3]
Mr.
Marceau is the father of a child who was born in December 1997. The child has
[TRANSLATION] “38 food allergies, apart from others . . . which cause her to
have attacks of eczema, asthma or rhinitis”: appeal book, p. 17. In his tax
return for 2004 the respondent requested for his daughter, a dependent within
the meaning of the Act, the disability tax credit (DTC), and this was denied by
the Minister of National Revenue (MNR). The respondent appealed the
reassessment sent to him by the MNR for the 2004 taxation year. The judge ruled
in his favour: hence the appeal at bar.
Tax Court of Canada decision
[4]
At trial
the respondent and his spouse explained the many problems caused for them by
the dietary constraints of their daughter. They both described how meal
preparation took several hours since recipes had to be chosen or invented and anallergic
food found and meticulously prepared, avoiding any source of contamination.
[5]
The
parents also testified to other problems with the child, related to her many
allergies, but more of a dermatological nature, indicating however
[TRANSLATION] “that the appeal [to the trial judge] essentially concerned food
preparation”: appeal book, pages 17 and 49. In short, the child is developing
normally in all spheres of activity in everyday life. She has no visual or
hearing deficiency and no problems speaking or moving about. She is also not
suffering from any deficiency in her mental abilities. According to the
parents, the only everyday activity which is severely limited for the child is
eating: appeal book, cross-examination of mother, pages 48 and 49.
[6]
Relying on
Nantel v. R., 2000 T.C.C. No. 345 (Nantel), and Johnston
v. R., [1998] 2 C.T.C. 262 (F.C.A.) (Johnston), the trial
judge concluded that the father was entitled to the credit requested because in
2004 the child had attained a “physical disability that was severe and that it
limited her daily activities markedly, continuously and on a prolonged basis”:
paragraph 18 of amended judgment.
[7] The judge further concluded that “Once the child
reaches a sufficient stage of maturity and wisdom and, above all, becomes
reasonably able to say no and to discipline herself and to feed herself in
keeping with her countless dietary restrictions, the situation with respect to
the credit in issue will eventually change”: paragraph 19 of amended judgment.
[8] Accordingly, the judge did not focus on the time
the mother had to spend on choosing and preparing food and meals, so much as the
fact that it was impossible for the child to do it for herself.
[9] The trial judge made two errors of law: first, he
ignored the legislative amendment defining what feeding oneself entails for
purposes of the Act; also, he mistakenly took the youth of the child into
account as a criterion determining entitlement to the DTC.
Analysis
[10] The relevant sections of the Act are sections
118.3 and 118.4, but in particular paragraph 118.4(1)(e), which states:
|
Nature of impairment
118.4 (1) . . .
(e) feeding oneself does
not include
(i) any of the activities of identifying, finding, shopping for or
otherwise procuring food, or
(ii) the activity of preparing food to the extent that the time
associated with the activity would not have been necessary in the absence of
a dietary restriction or regime . . .
|
Déficience
grave et prolongée
118.4 (1) …
(e) le fait de s’alimenter
ne comprend pas :
(i) les activités qui consistent à identifier, à rechercher, à acheter
ou à se procurer autrement des aliments,
(ii) l’activité qui consiste à préparer des aliments, dans la mesure
où le temps associé à cette activité n’y aurait pas été consacré en l’absence
d’une restriction ou d’un régime alimentaire . . .
|
[11] As mentioned earlier, the trial judge relied on Nantel
and Johnston, cited with approval by this Court in Hamilton v. Canada,
2002 FCA 118 (Hamilton). In that case, Mr. Hamilton had to spend an
excessive amount of time on obtaining food suitable for his personal
consumption and on the preparation of his meals because of the coeliac illness
from which he was suffering. This Court found that he was entitled to the DTC
provided for in subsection 118.4(1) of the Act. The Act has subsequently been
amended and paragraphs (e) and (f) added to subsection 118.4(1).
It is apparent that these legislative amendments were made to counter the
interpretation given to the DTC by the courts, in particular
by Hamilton: Kash v. Canada, 2006 TCC 662; Department
of Finance, Budget Plan 2003: Supplementary Information and Notice of Ways
and Means Motion, Appendix 9, at pp. 363 and 364; Comments by David
Sherman, Income Tax Act 2007, 15th ed., Carswell, Toronto, 2007, at p.
980.
[12] Consequently, individuals whose ability to prepare
a meal is significantly limited for reasons other than a dietary restriction
continue to be entitled to the DTC (Sherman, supra). In
the case at bar, the parties’ child had no reason other than her dietary
restrictions for claiming the DTC, and that is why the 2003 amendments were a
bar to the respondent’s request.
[13] As the excessive amount of time spent preparing
food is no longer a factor to be considered in obtaining the DTC, what about the individual’s age? Age is
not a factor taken into account by the legislature in establishing eligibility
for the DTC.
[14] One can only have respect and sympathy for the
parents of the young child who have so exceptionally devoted themselves to
ensuring her welfare and that of her brother, who for his part suffers from a
severe speech defect and mental disability: appeal book, page 45.
[15] However, the Court cannot accept the
interpretation given to the legislative provision in effect by the trial judge,
by adding to the wording an eligibility factor that is not there. The appellant
was right when she argued that the judge only mentioned paragraph 118.4(1)(e)
of the Act in his amended reasons for the first time, and did not apply it.
[16] The appeal will consequently be allowed, the
decision of the Tax Court of Canada set aside and, pursuant to section 18.25 of
the Tax Court of Canada Act, the respondent will be entitled to the
costs incurred by this appeal, which we set at $1,500.
“Johanne Trudel”
I
concur.
Gilles
Létourneau J.A.
I
concur.
Marc
Noël J.A.
Certified true
translation
Brian McCordick,
Translator
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