Citation: 2013TCC237
Date: 20130729
Docket: 2012-4098(IT)I
BETWEEN:
ANNETTE WILEY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
V.A. Miller J.
[1]
The Appellant has
suffered from fibromyalgia since 2004. This condition was exacerbated in
January 2011 when she sustained severe nerve damage from breast surgery. The
issue in this appeal is whether the effects of the Appellant’s physical
impairment are such that her ability to perform the basic activity of dressing
herself is markedly restricted such that she is entitled to the disability tax
credit for the 2011 taxation year.
[2]
The Appellant was
represented at the hearing by her daughter, Victoria-Lyn Wallace and both she
and her daughter testified.
[3]
The Appellant has four
children. Her daughter Victoria-Lyn is a university student at the University of Toronto in Mississauga, Ontario. Victoria-Lyn lives in Mississauga during the
school year except for holidays and weekends when she lives with the Appellant
so that she can assist her. The Appellant has two sons and another daughter who
is 10.
[4]
The Appellant gave her
present occupation as that of a homemaker. However prior to October 2012, she
was employed as a manager at a Kentucky Fried Chicken outlet. She had to leave
this work due to the complications she suffered as a result of her surgery in
2011.
[5]
According to the
letters from her family doctor, Dr. Marion F. Arthur, the Appellant has
neuropathic pain which has necessitated that she attend a pain clinic and take
medication on a long term basis. Adverse effects from some of her pain
medication and chronic reactive depression were so severe that the Appellant
could no longer work. In a letter dated June 19, 2013, Dr. Arthur wrote that
her current assessment is that the Appellant is not expected to recover
sufficiently to return to the work force.
[6]
The Appellant explained
that since her breast reduction operation, she has struggled with everyday
life. She has difficulty getting out of the bathtub because of the pressure of
her breasts. When she showers, she has to make sure that the water does not hit
her breasts in any of the many sensitive areas because the pain is severe. When
bathing, the change in temperature of the water causes pain. She requires help
from one of her daughters to wash her hair and her back. When getting dressed,
she is unable to wear a bra because the pressure from the material causes her
pain. She has to try on different shirts and put them on slowly to ensure the
least amount of pain. She cannot raise her arms over her head without
experiencing pain and she requires help to brush her hair.
[7]
The Appellant stated
that her daughter and son assist her with dressing daily. She can move her
fingers but she experiences pain and tingling in her fingers. She can
manipulate buttons and zippers. She can bend from the waist and she can put on
her own slacks while sitting on a chair or the bed. It takes her approximately
20 to 25 minutes to dress each morning. This includes putting on her deodorant
and clothes.
[8]
In the circumstances of
this appeal, the Appellant will qualify to receive the disability tax credit if
she satisfies the three criteria provided in section 118.3 of the Income Tax
Act (the “Act”): (1) she has a severe and prolonged physical
impairment; (2) the physical impairment markedly restricts her ability to dress
herself; and, (3) a medical practitioner has certified in prescribed form that
the impairment is severe and prolonged.
[9]
Section 118.4 of the Act
gives meaning to the terms “prolonged” and “markedly restricted”. It
provides that (a) an impairment is prolonged where it has lasted for a
continuous period of at least 12 months; and, (b) an individual’s ability to
perform a basic activity of daily living is markedly restricted only where all
or substantially all of the time, the individual is unable or requires an
inordinate amount of time to perform a basic activity of daily living.
[10]
On September 16, 2011,
Dr. Arthur filled out the Disability Tax Credit Certificate (the “Certificate”)
on behalf of the Appellant. In the form, she stated that the Appellant had been
markedly restricted in dressing since January 2011 as a result of breast
surgery reduction. With respect to the effects of the impairment, Dr. Arthur
wrote that the Appellant suffered pain from her clothes. She also wrote that
the Appellant’s impairment was expected to last for a continuous period of 12
months but that she was unsure if the impairment has or is likely to improve.
[11]
By letter dated
December 23, 2011, the Minister of National Revenue asked Dr. Arthur for
additional information with respect to the Appellant’s claim for the disability
tax credit. In the letter, Dr. Arthur was asked to check one statement in each
of two questions that best described her patient’s ability to dress herself.
The questions posed and the answers checked were:
With the use of appropriate therapy, medication and devices, your
patient is:
a) ____ able to dress herself;
b) __x_ unable to dress herself at times (e.g., due to
flare-ups)
c) _____unable to dress herself, all or substantially
all of the time.
When “inordinate amount of time” is mentioned, it means that the
activity must take significantly more time than for an average person of the
same age who does not have the impairment.
When your patient is able to dress herself with the use of
appropriate therapy, medication and devices, your patient:
a) ____ takes the same time to dress herself, but does not take an
inordinate amount of time.
b) ____ takes more time to dress herself, but does not take an
inordinate amount of time.
c)__x__ takes an inordinate amount of time to dress herself at
times, but is able to dress herself without being markedly restricted between
these periods (e.g., patient sometimes takes an inordinate amount of time to
dress due to pain).
d)
____ takes an inordinate amount of time to dress herself, all or substantially
all of the time (e.g., due to constant and severe pain, your patient takes an
inordinate amount of time to dress all or substantially all of the time,
despite medication).
[12]
Dr. Arthur did not
testify at the hearing but her affidavit was filed with the court. Her response
to the request for additional information was attached as an exhibit to her
affidavit. In her affidavit, Dr. Arthur clarified that “Annette Wiley takes an
inordinate amount of time to dress herself at times, but is able to dress
herself without being markedly restricted between these periods. In other
words, Ms. Wiley sometimes takes an inordinate amount of time to dress herself
due to pain.”
[13]
Paragraph 118.3(4)(b)
of the Act deems the additional information provided by Dr. Arthur to be
included in her Certificate in prescribed form.
[14]
Based on this
additional information, I have concluded that the Certificate provided by Dr.
Arthur is a negative certificate. She has, in effect, stated that the
Appellant’s impairment does not markedly restrict her ability to perform the
basic activity of dressing.
[15]
I note that the
Certificate gives a list of activities not included in the term “dressing”.
However, it does not include the notion that dressing oneself includes the
ability to perform basic elementary personal hygiene such as bathing and grooming
oneself: Johnston v R, [1998] 2 CTC 262 (FCA) at paragraph 37. If
that definition had been included in the certificate, I question whether Dr.
Arthur’s response would have been the same. There was evidence from both the
Appellant and her daughter that the Appellant took a long time to bathe and/or
shower and she needed help with bathing. However, neither witness discussed the
time it took the Appellant to bathe.
[16]
A positive certificate
is a prerequisite to receiving the disability tax credit and it is not open to
me to ignore that requirement or to substitute my opinion for that of the
medical practitioner: Buchanan v R, 2002 FCA 231 at paragraph 19
[17]
However, to ensure that
a medical practitioner who signs the Certificate has fully considered the
activities involved in the notion of dressing, I recommend that the Certificate
be amended to include the definition of dressing as given in Johnston.
[18]
Unfortunately, I must
dismiss this appeal.
Signed at Halifax, Nova Scotia, this 29th
day of July 2013.
“V.A. Miller”
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