Citation: 2010 TCC 456
Date: September 10, 2010
Docket: 2009-593(IT)I
BETWEEN:
HAROLD A. PAKARINEN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Little J.
A. FACTS
[1]
The Appellant resides
in Wabigoon, Ontario.
[2]
The Appellant has suffered
from seizure episodes since 2003.
[3]
In a Medical Report
dated May 7, 2008, Dr. M.A. Cortens, a physician in Dryden, Ontario, made the
following comment about the Appellant’s medical condition:
… For the most part he experiences petit mal, but he has experienced
the occasional grand mal seizure. He experiences, on average, three petit mal
seizures a day.
[4]
When the Appellant
filed his income tax return for the 2007 Taxation Year, he claimed $6,890 of
non-refundable tax credits.
[5]
The Minister of
National Revenue (the “Minister”) did not allow any of the tax credits claimed
by the Appellant.
[6]
The Appellant filed a
Notice of Objection and the Minister issued a Notification of Confirmation on
February 2, 2009.
[7]
The Appellant filed a
Notice of Appeal to the Tax Court on February 23, 2009.
B. ISSUE
[8]
The issue is whether
the Appellant is allowed to deduct the amount of $6,890 as disability tax
credits, pursuant to paragraph 118.4(1)(b) of the Income Tax Act
(the “Act”).
C. ANALYSIS AND DECISION
[9]
The disability tax
credit provided for in section 118.3 of the Act is a non‑refundable
tax credit that may be claimed by an individual who suffers from one or more
severe and prolonged impairments in mental or physical functions.
[10]
Subsections 118.4(1)
and (2) contain rules which explain what is covered by the words “mental or
physical impairment”. Subsections 118.4(1) and (2) read as follows:
(1) Nature
of Impairment. For
the purposes of subsection 6(16), sections 118.2 and 118.3 and this subsection,
(a) an impairment is prolonged
where it has lasted, or can reasonably be expected to last, for a continuous
period of at least 12 months;
(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, even with therapy and the use of appropriate
devices and medication, the individual is blind or is unable (or requires an
inordinate amount of time) to perform a basic activity of daily living;
(b.1) an individual is considered
to have the equivalent of a marked restriction in a basic activity of daily
living only where all or substantially all of the time, even with therapy and
the use of appropriate devices and medication, the individual's ability to
perform more than one basic activity of daily living (including for this
purpose, the ability to see) is significantly restricted, and the cumulative
effect of those restrictions is tantamount to the individual's ability to
perform a basic activity of daily living being markedly restricted;
(c) a basic activity of daily
living in relation to an individual means
(i) mental functions necessary for
everyday life,
(ii) feeding oneself or dressing
oneself,
(iii) speaking so as to be understood,
in a quiet setting, by another person familiar with the individual,
(iv) hearing so as to understand, in a
quiet setting, another person familiar with the individual,
(v) eliminating (bowel or bladder
functions), or
(vi) walking;
(c.1) mental functions necessary
for everyday life include
(i) memory,
(ii) problem solving, goal-setting and
judgement (taken together), and
(iii) adaptive functioning;
(d) for greater certainty, no
other activity, including working, housekeeping or a social or recreational
activity, shall be considered as a basic activity of daily living;
(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; and
(f) dressing oneself does not
include any of the activities of identifying, finding, shopping for or
otherwise procuring clothing.
(2) Reference to medical practitioners, etc. For the purposes of sections 63, 64, 118.2, 118.3 and
118.6, a reference to an audiologist, dentist, medical doctor, medical
practitioner, nurse, occupational therapist, optometrist, pharmacist,
physiotherapist, psychologist, or speech-language pathologist is a reference to
a person authorized to practise as such,
(a) where the reference is used
in respect of a service rendered to a taxpayer, pursuant to the laws of the
jurisdiction in which the service is rendered;
(b) where the reference is used in
respect of a certificate issued by the person in respect of a taxpayer,
pursuant to the laws of the jurisdiction in which the taxpayer resides or of a
province; and
(c) where the reference is used
in respect of a prescription issued by the person for property to be provided
to or for the use of a taxpayer, pursuant to the laws of the jurisdiction in
which the taxpayer resides, of a province or of the jurisdiction in which the
property is provided.
[11]
The Appellant said that
he suffers from petit mal seizures (sometimes one or more a day) and grand mal
seizures one or two times per year.
[12]
As a result of the
seizures, the Appellant’s driver’s licence was revoked by the Province of Ontario. However, the Appellant said that it is
not just his ability to drive a vehicle,
… [i]t’s my ability to concentrate and it’s my memory, …
(Transcript, page 21, line 14)
[13]
In argument, the
Appellant said that the statement by the Canada Revenue Agency (the “CRA”) of
his disability was either too limited or too vague (Transcript, page 34, lines
7 - 8).
[14]
During the hearing,
Counsel for the Respondent filed a copy of a letter to Dr. Cortens from J.
Preston of the CRA dated April 25, 2008 (Exhibit R-1).
[15]
The letter from Mr.
Preston contained a copy of a questionnaire which Mr. Preston asked
Dr. Cortens to complete. The questions asked and the answers supplied by
Dr. Cortens were:
Question: Can your patient perform daily
living skills (e.g., simple chores, personal hygiene, go out in the community, make
simple purchases) without the assistance/supervision of another person?
Answer: YES X NO -
Question: Please explain and indicate if assistance/supervision
is required.
Answer: However, he is unable to drive, he
lives in the country and so he requires someone to drive him into town to
perform tasks in the community.
Question: Can your patient make appropriate
decisions and judgements in day‑to‑day situations?
Answer: YES X NO -
Question: Please explain and indicate any safety concerns,
if applicable.
Answer: However, there are some safety
concerns because he does experience seizures, at which time he is not conscious
of what is going on. During those times, he is unable to make any decisions as
he essentially loses consciousness.
Question: Does your patient require frequent
reminders or excessive use of memory aids on a daily basis (e.g., step by step
instructions to perform routine activities, or detailed written instructions to
get to familiar places)?
Answer: YES - NO X
Question: Can your patient live
independently (WITHOUT daily supervision from family or the community)?
Answer: YES X NO -
Question: Does your patient require an
“inordinate amount of time” to perform the mental functions necessary for
everyday life by himself/herself, using as needed, any appropriate therapy,
medications, and devices?
[Emphasis added]
NOTE: To meet the requirement for an
“inordinate amount of time”, the mental functions necessary for everyday life
must take significantly more time than would be taken by an average person who
does not have the impairment.
Answer: YES - NO X
[Emphasis added]
Question: Please state the frequency, type
and duration of your patient’s seizure episodes.
Answer: For the most part he experiences
petit mal, but he has experienced the occasional grand mal seizure. He
experiences, on average, three petit mal seizures a day.
Question: Are these episodes controlled with medication?
Answer: YES - NO X
Question: Please explain.
Answer: The patient has been on numerous
medications over the years including Tegretol, Lamictal, Epival, Topamax,
Lamotrigine, and in spite of this we have not been able to obtain control of
his seizures. Recently he has been started on Keppra.
Question: To the best of your knowledge are
the limitations described in the previous questions present all or
substantially all the time?
Dr. Cortens did not “tick off” the YES or NO box. However,
he stated:
As mentioned, when he is having seizures, he loses consciousness and
is not able to do anything that requires any cognitive function. At other times
he is able to make decisions.
Question: If yes, please state the year(s)
or period(s) of time for which that was the case.
Answer: 2003
Question: Please give any comments that may
help to clarify the effects of your patient’s impairment as it restricts
his/her mental functions necessary for everyday life.
Answer: The patient has frequent seizure
episodes during which time he is totally disabled.
Question: Please state the approximate year
when your patient began having severe functional limitations.
Answer: 2003
Question: Is your patient’s ability to
perform the mental functions necessary for everyday life likely to improve?
Answer: YES - NO X
Question: What is the nature of your patient’s impairment?
Answer: Prolonged seizure disorder.
Question: Has your patient’s impairment
lasted, or is it expected to last, for a continuous period of at least 12
months?
Answer: YES X NO -
I believe that it is necessary for me to comment upon
some of the answers provided by Dr. Cortens in the questionnaire. I cite the
following:
1. Question
Can your patient perform daily living
skills (e.g. simple chores, personal hygiene, go out in the community, make
simple purchases) without the assistance/supervision of another person?
Dr. Cortens answered YES.
2. Question
Does your patient require frequent reminders
or excessive use of memory aids on a daily basis (e.g. step by step
instructions to perform routine activities, or detailed written instructions to
get to familiar places?
Dr. Cortens answered NO.
3. Question
Can your patient live independently
(without daily supervision from family or the community)?
Dr. Cortens answered YES.
4. Question
Does your patient require an “inordinate
amount of time” to perform the mental functions necessary for everyday life by
himself/herself, using as needed, any appropriate therapy, medications and devices?
Dr. Cortens answered NO.
Based upon my analysis of the above answers, I have
concluded that the Appellant is able to perform the mental functions necessary
for everyday life without taking an inordinate amount of time (possibly with
the use of appropriate therapy, medications and devices).
[16]
Counsel for the
Minister referred to the decision of the Federal Court of Appeal in A.G. of Canada v. MacIsaac et. al., 2000 D.T.C. 6020. In that decision,
Sexton, JJ.A. said, at paragraph 5:
[5] … Section 118.3(1)(a.2) of the Income Tax Act is
not merely directory. It is mandatory. Simply put, there must be a certificate
by the doctor that the individual suffers impairments in the language of these
subsections. …
[17]
Based on the answers
provided by Dr. Cortens in the questionnaire, I have concluded that the
requirements for the disability tax credit contained in subsection 118.1(1)
are not met in this case. In my opinion, the Appellant is not entitled to claim
a non-refundable disability tax credit for the 2007 Taxation Year.
[18]
The appeal is dismissed
without costs.
Signed at Vancouver, British Columbia, this 10th day of September 2010.
“L.M. Little”
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