Citation: 2014 TCC 95
Date: 20140331
Docket: 2012-2756(IT)I
BETWEEN:
MARC BENOIT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Masse D.J.
[1]
This is an appeal from
an assessment dated July 29, 2010, for the 2009 taxation year, in which the
Minister of National Revenue (hereinafter, the Minister) disallowed the disability
tax credit (hereinafter, the DTC) of $7,196 that the appellant claimed for
himself.
Factual background
[2]
Mr. Benoit is a
musician by training and was a professional musician. He worked concurrently as
a musician and artistic agent, idea man and researcher for television in Quebec
City. He also organized various international festivals in Quebec as director
general. He has now been retired for more than two years and can no longer work
due to health problems.
[3]
In 1998, after years of
ups and downs, and being on an emotional roller coaster, Mr. Benoit was
diagnosed as being bipolar. This required psychiatric care, which was provided by
Dr. Léon‑Maurice Larouche. In 2009, he also developed essential
tremor. This is a problem with neurotransmitters after which every muscle
command is followed by an echo one millisecond later. As a result all his
movements become tremors. He is being treated by a neurosurgeon, Valérie Lyne
Solan. He has these tremors all the time, but they are exacerbated by stressful
situations. He has a subarachnoid cyst, which exerts pressure on the right
frontal cortex of the brain, resulting in memory loss and tremors. He suffers
from anxiety and panic attacks related to his bipolar condition and essential
tremors. His doctors prescribed medication to treat his bipolar condition, but
unfortunately they had side effects. He is in the first stage of hepatic
steatosis, which leads to cirrhosis. Since 2009, he has been taking seven or
eight medications every day to treat, among other things, his bipolar condition
and liver and thyroid gland problems (see Exhibit A‑1, tab 11). His
general health is stable today but his quality of life, in his words, [translation] "is not fun." He
is being seen by a psychiatrist, neurologist and endocrinologist and is also
under the care of a family doctor. The documents in Exhibit A-1 reflect the fragile
state of his health.
[4]
Mr. Benoit has memory
lapses. These lapses occur frequently amidst his essential tremors. His memory
is not reliable and in fact, at the hearing, he testified with notes he had
prepared a few weeks prior to the trial because he had trouble remembering the
details of his daily activities, although there are very few. If he has a
medical appointment, he must write it down everywhere and he tells his spouse
so she can remind him; otherwise, he will forget. He is no longer able to
memorize a piece of music. Even though before, he was able to memorize a
complete concerto and play it, he can no longer do this. He described an
incident to us where he was in concert with a singer; he began to shake and
panic, and he forgot everything. Thinking it was over, he left in the middle of
the concert. That was the end of his career as a musician, as he is no longer
able to play in public.
[5]
The appellant described
to us how his anxiety and panic attacks and his essential tremors affected him.
Even the easiest tasks, physical or mental, become insurmountable problems. The
appellant feels stress from these problems and things snowball from there. The
stress leads to essential tremors. He then panics and loses control of the
situation. Any little problem causes panic. Actions requiring fine‑motor
skills such as tying his shoelaces, picking change up from the ground, or
holding a cup of coffee become very difficult for him. As soon as he is under
the slightest pressure, he gets stressed and begins to shake, making it nearly
impossible for him to complete the task. This stress can be caused simply by
someone asking him to move faster, trying to get dressed quickly or eating in the
morning; he then becomes unable or nearly unable to function. Half the time he
is stressed and when he panics, it takes half an hour for it to subside. He can
only overcome it with great effort. It can easily take him an hour to get
dressed in the morning. Choosing his breakfast food is very stressful and
causes panic episodes. It takes him at least an hour to eat, because of the tremors.
He has trouble planning activities and unexpected events cause him stress. He
must always stay in the present moment. He cannot do two things at once and is
unable to make simple choices. Today, he does not make financial decisions
himself; he must consult someone to make sure his financial choices are wise. I
get the sense that these panic episodes paralyze him.
[6]
The appellant can
barely write because of his tremors. His writing is spasmodic and it takes him
a long time to write even a simple sentence, much longer than a person that
does not have tremors. The quality of his writing leaves much to be desired
(see Exhibit A-2). It is actually doodles or scribbles that are hard to
decipher.
[7]
He loses his balance
and then must find a support otherwise he falls. He walks to relieve stress,
but not in public areas since he could fall on the sidewalk due to his poor
balance, which bothers people and embarrasses him. He does a little gardening,
which reduces his stress, but he does it kneeling down because of his poor
balance.
[8]
It is clear that the
appellant suffers from major depression and his functional limitations are
permanent or prolonged (see Exhibit A‑1, tab 4). For him, these periods
of depression are debilitating, and he experiences them frequently because of
his bipolar condition.
[9]
In cross-examination,
he said he lived alone in 2009, the taxation year in question. However, he
received help from time to time from a friend who went to the house once a week
to clean, cook and do other things. He stated that he had a driver's licence
and regularly drove a car in 2009—once or twice a week—to do his groceries or
get the mail. However, it was very stressful and he could not function in
traffic jams, when there was a lot of traffic or when he had to drive fast. He
would have to pull over onto the shoulder and it could take him up to half an
hour to calm himself down enough to continue on his way. When he went to the
movies, he could follow the story of the movie but emotional intensity caused
him stress and he would start to shake, get cold and his blood pressure would
drop. He is able to use a phone and a computer and send emails. At least the
documents he prepares on the computer are legible, compared to his handwritten
notes. He reads, but not novels because reading a novel requires concentration
he does not have. He would read three or four pages and that was all. He is
able to do a few home repairs, but only small jobs such as fixing a doorknob,
nothing complicated. If he were to drop a screw or small items he would have to
pick up, the repair would take a long time.
[10]
Dr. Rami Morcos,
neurologist, prepared a medical report dated January 20, 2010 (see Exhibit A‑1,
tab 8, and Exhibit I‑1, tab 4). Dr. Morcos noted that the
appellant has tremors to the extent that he must hold his cup with two hands in
the morning. At times, the appellant has difficulty judging the distance of the
floor when he puts his foot down, leading him to sway and lose his balance. The
appellant reported that he would have headaches that last a few hours, two or
three times a week. Sometimes Tylenol would help. At times he would have an
obstruction when swallowing; he did not choke when eating, however. He can be
slow when he speaks and searches for his words. He reported decreased memory.
[11]
During 2010, the
appellant was without an adequate income. So in March, he applied to the Régie
des rentes du Québec for disability benefits, which he has been receiving since
September 2010. He also applied for the DTC. It was Dr. Laroche who filled
in the forms required to obtain the disability benefits and the DTC.
[12]
On March 23, 2010, the
appellant sent the Minister a T2201 form, "Disability Tax Credit
Certificate" duly completed and signed by Dr. Larouche. On this
certificate, Dr. Larouche indicated that since 2008, the appellant has suffered
from bipolar affective disorder, hypothyroidism, moderately severe hepatic
steatosis, a subarachnoid cyst in the right frontal lobe and tendonitis in the
right wrist. The doctor indicated that the appellant is weak and has tremors,
dizzy spells, low concentration, little interest and poor nutrition. The T2201
form consists of a series of questions the doctor answers by checking the
appropriate box: "Yes" or "No". To the question, "Is
your patient markedly restricted in performing the mental functions necessary
for everyday life, as described above?", the doctor answered "Yes".
The doctor certified that the impairment has lasted or is expected to last for
a continuous period of at least 12 months. The appellant became markedly
restricted in performing the mental functions necessary for everyday life in
2008 and 2009. The doctor certified that the impairment had not improved and
was not likely to improve to such an extent that the patient would no longer be
markedly restricted.
[13]
On June 4, 2010, the
Minister asked Dr. Larouche to provide clarifications on how the appellant's
impairment limits his ability to carry out one or more basic activity of daily
living. The Minister asked the doctor to complete another form by checking the
statement for each question that best corresponds to the appellant's ability to
carry out everyday activities, with help from therapy, and the appropriate medication
and devices. The questions and corresponding statements are reproduced below
(see Exhibit A-1, tab 2, and Exhibit I-1, tab 8):
[translation]
MENTAL FUNCTIONS NECESSARY FOR EVERYDAY ACTIVITIES
Which
statement describes your patient's ability to carry out the basic skills of daily
living (for example, personal hygiene, everyday purchases, outings)? Your
patient:
(a) [check] is able to carry out these activities without
assistance.
(b) requires
assistance, but ONLY for complex tasks, during periods of exacerbation or in
stressful situations.
(c) all
or substantially all of the time requires assistance (i.e. your patient cannot
be left alone).
Which
statement describes your patient's ability to express himself or herself? Your
patient is:
(a) [check] able to express himself or herself without
difficulty.
(b) unable
to express himself or herself but ONLY when the subject is complex, during
periods of exacerbation or in stressful situations.
(c) all
or substantially all of the time unable to express himself or herself.
Which
statement describes your patient's ability to remember? Your patient:
(a) has
no trouble remembering most of the time.
(b) [check] is unable to remember, but ONLY in situations with
many steps or complex instructions, during periods of exacerbation or in stressful
situations.
(c) is
unable to remember simple or new instructions, and all or substantially all of
the time requires constant supervision to ensure his or her safety and well
being.
Which
statement describes your patient's ability to find solutions to practical
solutions met on a daily basis? Your patient:
(a) [check] is able to find solutions by himself or herself
without difficulty.
(b) requires
significant assistance to find solutions, but ONLY when the task is complex
(for example, tasks that require abstract reasoning, planning or organization),
during periods of exacerbation or in stressful situations.
(c) all
or substantially all of the time requires significant assistance to find
solutions to minor problems (for example, your patient is unable to find
another route or way to get home if a road is closed in his or her
neighbourhood).
Which
statement describes your patient's ability to make a judgment in everyday
situations? Your patient is:
(a) [check] able to make an appropriate judgment most of the
time.
(b) unable
to make an appropriate judgment, but ONLY when the task is complex (i.e. making
a financial decision), during periods of exacerbation or in stressful
situations.
(c) all
or substantially all of the time unable to make an appropriate judgment.
Which
statement describes your patient's ability to be independent when planning his
or her daily activities? Your patient is:
(a) [check] able to plan his or her own daily activities most
of the time.
(b) unable
to plan his or her own daily activities, but ONLY when the task is complex
(i.e. planning an outing or trip), during periods of exacerbation or in
stressful situations.
(c) all
or substantially all of the time unable to plan his or her own daily activities
(i.e. needs someone to establish a routine and constantly tell him or her what
to do).
Which
statement describes your patient's ability to perform the mental functions
necessary for the everyday activities described in the question below?
NOTE:
To be considered an "inordinate amount of time", performing the
mental functions necessary for everyday life must take considerably more time
than the average person of the same age without an impairment.
Your
patient:
(a) does
not take an inordinate amount of time to perform the functions.
(b) [check] takes an inordinate amount of time to perform the
functions, but ONLY when the task is complex (i.e. a task that requires
abstract reasoning), during periods of exacerbation or in stressful situations.
(c) all
or substantially all of the time takes an inordinate amount of time to perform
the functions.
[14]
Dr. Larouche indicated
that the limitations noted in the questionnaire began in 2007 and 2008.
Dr. Larouche indicated that it is likely that the appellant's capacity to
perform the mental functions necessary for everyday life would improve with the
help of medication or therapy, within a year or two.
[15]
The Minister, relying
on Dr. Larouche's report, disallowed the DTC of $7,196 the appellant
claimed for himself for the 2009 taxation year. Despite the fact his capacity
to perform the mental functions necessary for everyday life is limited, he was
found to be inadmissible for the DTC because his capacity to perform these
functions is not markedly limited all or substantially all of the time.
[16]
On March 17, 2010,
Dr. Larouche filled in a form for Revenu Québec, "Certificate
Respecting an Impairment" for the appellant for 2008 and 2009 (Exhibit
A-1, tab 14). Question number 7 on this form states as follows:
Mental
functions — Is your patient's ability to exercise
the mental functions necessary for daily living markedly restricted?
Answer
yes only if, even with therapy and the use of medication, your patient
is all or substantially all of the time unable to exercise the mental functions
necessary for daily living (or requires an inordinate amount of time to do so).
The
mental functions necessary for daily living include memory, problem-solving,
goal-attainment, judgment and adaptive functioning.
Revenu
Québec considers your patient's ability to be markedly restricted if he or she
lacks the mental capacity to manage personal affairs (provide himself or
herself with food, clothing, etc.) or see to personal care (feed, wash or dress
himself or herself) without supervision.
[17]
To this question,
Dr. Larouche answered "Yes". However, Dr. Larouche answered
"No" to question number 8, which states as follows:
Cumulative
effect of multiple restrictions (applicable only since 2005) — Is your patient affected by restrictions in more than one of
the basic activities of daily living (referred to in questions 2 through 7) to
such a degree that the cumulative effect of those restrictions is equivalent to
having a marked restriction in the ability to perform a single basic activity
of daily living?
Answer
yes only if, even with therapy and medication, the restrictions and
their cumulative effect are present all or substantially all of the time.
Dr. Larouche indicated that his patient's
impairment dated back to February 2008 and it was a permanent impairment.
[18]
Therefore, there seem
to be contradictions or at least differences between the T2201 certificate
(Exhibit A-1, tab 1) and the "Certificate Respecting an Impairment"
(Exhibit A-1, tab 14) on one hand and the additional report the Minister
requested in June 2010 (Exhibit A-1, tab 2) on the other. It is the Court's
responsibility to resolve these differences, if possible.
Appellant's position
[19]
The appellant alleges
that he suffers from severe and prolonged impairments to his physical or mental
functions such that his ability to carry out more than one basic activity of
daily living is markedly restricted. He is all or substantially all of the time
limited in this capacity, even with therapy and medication. The appellant
states that he meets the criteria under sections 118.3(1) and 118.4 of the
Income Tax Act, R.S.C. 1985, c. 1 (5th Suppl.) (the Act) and he is
therefore eligible for the DTC.
Respondent's position
[20]
The respondent alleges
that, although the appellant suffers from severe and prolonged impairments, and
although his capacity to perform the mental functions necessary for everyday life
is limited, the appellant is not "all or substantially all of the
time", within the meaning of section 118.4, markedly restricted in his
ability to perform these functions. The appellant is therefore not eligible for
the DTC under subsection 118.3(1).
Legislative provisions
[21]
The relevant provisions
of the Act are as follow:
118.3 (1) Where
(a) an
individual has one or more severe and prolonged impairments in physical or
mental functions,
(a.1) the effects of the
impairment or impairments are such that the individual’s ability to perform more
than one basic activity of daily living is significantly restricted where the
cumulative effect of those restrictions is equivalent to having a marked
restriction in the ability to perform a basic activity of daily living or are
such that the individual’s ability to perform a basic activity of daily living
is markedly restricted or would be markedly restricted but for therapy that
(i) is essential to sustain a vital function of the individual,
(ii) is required to be administered at least three times each week
for a total duration averaging not less than 14 hours a week, and
(iii) cannot
reasonably be expected to be of significant benefit to persons who are not so
impaired,
(a.2) in the case of an
impairment in physical or mental functions the effects of which are such that
the individual’s ability to perform a single basic activity of daily living is
markedly restricted or would be so restricted but for therapy referred to in
paragraph (a.1), a
medical practitioner has certified in prescribed form that the impairment is a
severe and prolonged impairment in physical or mental functions the effects of
which are such that the individual’s ability to perform a basic activity of
daily living is markedly restricted or would be markedly restricted, but for
therapy...
...
(a.3) in the case of one or
more impairments in physical or mental functions the effects of which are such
that the individual’s ability to perform more than one basic activity of daily
living is significantly restricted, a medical practitioner has certified in
prescribed form that the impairment or impairments are severe and prolonged
impairments in physical or mental functions the effects of which are such that
the individual’s ability to perform more than one basic activity of daily
living is significantly restricted and that the cumulative effect of those
restrictions is equivalent to having a marked restriction in the ability to perform
a single basic activity of daily living, where the medical practitioner is, in
the case of
(i) an impairment with respect to the individual’s ability in feeding or
dressing themself, or in walking, a medical doctor or an occupational
therapist, and
(ii) in the case of any other impairment, a medical doctor,
(b) the
individual has filed for a taxation year with the Minister the certificate
described in paragraph (a.2) or (a.3), and
(c) ...
[calculation of DTC]
...
(4) Where
a claim under this section or under section 118.8 is made in respect of an
individual’s impairment
(a) if the
Minister requests in writing information with respect to the individual’s
impairment, its effects on the individual and, where applicable, the therapy
referred to in paragraph (1)(a.1)
that is required to be administered, from any person referred to in subsection
(1) or (2) or section 118.8 in connection with such a claim, that person shall
provide the information so requested to the Minister in writing; and
(b) if the information
referred to in paragraph (a)
is provided by a person referred to in paragraph (1)(a.2) or (a.3), the information so
provided is deemed to be included in a certificate in prescribed form.
118.4 (1) 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; and
(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.
[Emphasis
added.]
Analysis
[22]
The DTC is a non-refundable
tax credit that provides tax relief to people with a severe and prolonged
impairment in physical or mental functions. A taxpayer is eligible for the DTC
in a taxation year if the following requirements set out in subsection 118.3(1)
of the Act are met:
(a) the individual has one or more severe and prolonged impairments in
physical or mental functions;
(b) the effects of the impairment or impairments are such that the
individual is either:
(i)
markedly restricted in the ability to
perform a basic activity of daily living or would be markedly restricted
but for life-sustaining therapy; or
(ii) significantly restricted in the ability to perform more than
one basic activity of daily living and the cumulative effect of the significant
restrictions is equivalent to being markedly restricted in the ability to
perform a basic activity of daily living; and
(c) a medical practitioner certifies that the individual meets the above-mentioned
requirements.
[23]
An impairment is
prolonged when it has lasted or may reasonably be expected to last for a
continuous period of at least 12 months. An individual's ability to perform a
basic activity of daily living is markedly restricted if all or substantially
all of the time, even with therapy and the use of appropriate devices and
medication, the individual is unable or requires an inordinate amount of time
to perform a basic activity of daily living. 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 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. Feeding
oneself or dressing oneself, among other things, is considered among the mental
functions necessary for everyday life. However, feeding oneself does not
include 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. Memory, problem solving, goal-setting and judgment
(taken together) are included among the mental functions necessary for everyday
life.
[24]
To meet the requirement
of taking an inordinate amount of time to perform an activity, the activity
must take significantly longer than for an average person with no impairment.
The issue of whether an individual takes an inordinate amount of time to
perform an activity is a question of fact. In Johnston v. Canada, [1998]
F.C.J. No. 169 (QL), Justice Létourneau, of the Federal Court of Appeal,
defined the expression "inordinate amount of time" at paragraph 18,
as follows:
No definition has been given of what constitutes an inordinate
amount of time in the performance of the basic activities of daily living. In
my view, the expression "inordinate amount of time" refers to an
excessive amount of time, that is to say one much longer than what is usually
required by normal people. It requires a marked departure from normality.
[25]
In general, it is the
effect of one or more impairments of the physical or mental ability of a person
to perform the basic activities of daily living—an effect that differs from one
person to another—rather than a medical condition in itself, that determines
whether a person is eligible for the DTC.
[26]
The appellant and the
respondent cited many decisions in support of their respective assertions. It
goes without saying that while certain decisions may enlighten the Court, each
case stands on its own merits and must be decided on its own facts according to
the burden of proof and the degree of proof required. The exercise of comparing
the facts in another case, which may present certain similarities with those in
a given case, therefore cannot replace the application of the statutory
provisions, and of the requirements stated therein to the circumstances proven
in a given case: see Gilbert v. Canada, [2001] T.C.J. No. 600 (QL) at
para. 32.
[27]
In Radage v. Canada,
[1996] T.C.J. No. 730 (QL), [1996] 3 C.T.C. 2510, Judge Bowman of the Tax Court
of Canada clearly explained, at paragraph 45 (QL) of his reasons for judgment,
the legislative intent when adopting sections 118.3 and 118.4
...
(5)
...I shall try to state briefly
those principles upon which this decision is based:
(a) The legislative intent appears to be to provide
a modest amount of tax 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 everyone 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.
(b) The court must, while recognizing the narrowness
of the tests enumerated in sections 118.3 and 118.4, construe the provisions
liberally, humanely and compassionately and not narrowly and technically.
In Craven v. The Queen, 94-2619(IT)I, I stated:
The application of the inflexible tests in
section 118.4 leaves the court no room to apply either common sense or
compassion in the interpretation of the disability tax credit provisions of the
Income Tax Act -- provisions that require a compassionate and
commonsense application.
In my view I stated the test unduly narrowly in
that case. I have heard many disability tax credit cases since that time and my
thinking has evolved. My present view of the approach that should be taken is
more accurately set out in such cases as Noseworthy v. The Queen,
95-1862(IT)I, Lawlor v. The Queen, 95-1585(IT)I, Hillier v. The Queen,
95-3097(IT)I, and Lamothe v. The Queen, 95-2868(IT)I and 95-3949(IT)I.
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 provision
must be given a humane and compassionate construction. Section 12 of the Interpretation
Act reads as follows:
Every enactment is deemed remedial, and shall be
given such fair, large and liberal construction and interpretation as best
ensures the attainment of its objects.
(c) If there is doubt on which side of the line a claimant falls, that
doubt should be resolved in favour of the claimant.
(d) The provisional meanings assigned above to the words "perceiving,
thinking and remembering" are more in the nature of guidelines than
definitions. They are:
Perceiving: The reception and recognition of sensory data
about the external world that conforms reasonably to common human experience.
Thinking: A rational comprehension, marshalling, analysis
and organization of that which the person has perceived and the formulation of
conclusions therefrom that are of practical utility or theoretical validity.
Remembering: The mental activity of storing perceived data and
of retrieving it in a manner that enables the person reasonably to perform the
function of thinking.
...
(e)
Finally there must be
considered -- and this is the most difficult principle to formulate -- the
criteria to be employed in forming the judgement whether the mental impairment
is of such severity that the person is entitled to the credit, i.e. that that
person's ability to perceive, think and remember is markedly restricted within
the meaning of the Act. It does not necessarily involve a state of complete
automatism or anoesis, but it should be of such a severity that it affects and
permeates his or her life to a degree that it renders that person incapable of
performing such mental tasks as will enable him or her to function independently
and with reasonable competence in everyday life.
[Emphasis
added.]
[28]
In Brown v. Canada,
[2002] T.C.J. No. 199 (QL), [2002] 2 C.T.C. 2846, Judge Miller of the Tax Court
of Canada was to consider the case of a young man who suffered a brain injury
after an accident, at age 10. Mr. Brown lived alone and seemed to have been
left to fend for himself for most of his youth. He had a limited ability to
understand and remember. He was easily distracted. He had trouble with
organization and was easily frustrated. He liked to listen to music and walk in
the woods. He played some guitar. Despite his significant disabilities, Mr.
Brown was able to achieve a certain degree of independence. Everything he did,
he did for himself.
[29]
Judge Miller, addressing
the applicability of the provisions of sections 118.3(1) and 118.4 of
the Act, stated the following at paragraph 20 of his reasons for judgment:
... The sections
just cited taken together stipulate that a basic activity of daily living (in
this case - perceiving, thinking and remembering) is markedly restricted only
if, substantially all of the time, the individual is unable to perceive, think
and remember or require some inordinate amount of time to do so. In summary,
the elements required for Mr. Brown to obtain the credit are:
1. a
severe and prolonged mental impairment;
2. the
effects of the impairment are such that Mr. Brown is unable, substantially all
of the time, to perceive, think and remember;
3. a certificate filed with the Minister of a medical doctor or a
psychologist in prescribed form attesting to the first two points.
[30]
Judge Miller quoted the
principles stated by Judge Bowman in Radage, supra, that I cited
above, and continued as follows at paragraph 24:
Applying these principles to the situation before me, I am satisfied
that Mr. Brown deserves the humane and compassionate construction of the
provisions suggested by Associate Chief Judge Bowman and adopted by the Federal
Court of Appeal in the case of Johnston v. The Queen 98 D.T.C. 6168. Here
is a man, who as a youngster suffers a severe brain injury and is left until
well into adulthood with some sense of knowing he is different, but no
knowledge why. He is not directed by family to seek help but is left completely
to his own devices, and indeed he copes. By coping, has he shown that his
mental impairment is not so severe that he is unable to perceive, think or
remember? Coping is relative. He copes by listening to music, playing parts of
three or four songs on his guitar and heading out into the country. He does not
list in his coping mechanisms any activities that require organized rational
thoughts beyond a very basic level. He has survived despite his impairment; he
has not overcome the impairment.
Judge Miller concluded as follows at paragraph 28:
My finding about the severity of the impairment and more pointedly
its impact on Mr. Brown's ability to handle life is not without some doubt. I
fall back on, and take some comfort in, Associate Chief Judge Bowman's
principle in which he enunciated, that if there is doubt, doubt should be
resolved in favour of the claimant. I do so in this case and I allow the
Appellant's appeal for the 1998 taxation year and refer the matter back to the
Minister for reassessment in accordance with this finding.
[31]
As I indicated earlier,
in this case, the T2201 certificate (Exhibit A-1, tab 1), Dr. Larouche's
additional medical report of June 2010 (Exhibit A-1, tab 2) and the "Certificate
Respecting an Impairment" from March 2010 (Exhibit A-1, tab 14) are problematic.
They are not detailed medical reports in which the doctor could freely and
completely express himself by presenting subjective and objective observations
that support his medical opinion. These reports are only forms that contain
questions the doctor must answer by checking the appropriate box, not for the
purpose of providing a complete, detailed and well-formulated medical opinion
for each case, but only for the purpose of providing the most appropriate
answer from among two or three possible answers. These forms do not leave the
doctor much freedom to express himself. By the way they are presented and
worded, these forms do not seem to inspire much confidence in the medical
opinions found therein. The method of checking one of two or three predetermined
answers is not the best way to obtain a just result. The Federal Court of
Appeal noted the following in MacIsaac v. Canada; Morrison v. Canada,
[1999] F.C.J. No. 1898 (QL) at paragraph 6:
It is not obvious that putting the questions as they are in this
form results in a thorough consideration by the doctor of the questions
confronting him. Putting checks in boxes is perhaps not the best way of
eliciting a just result. Nevertheless the Act requires such certificates as a
prerequisite to obtaining disability tax credits.
[32]
In this case, Mr.
Benoit submitted to the Minister a T2201 certificate as he was required to do.
The Minister feels, after reviewing the certificate and the additional
information, that the appellant is not eligible for the DTC. Therefore, it is
the Court's duty to determine whether the appellant met the criteria found at
sections 118.3 and 118.4.
[33]
In this case, it is
indisputable that the appellant suffers from a severe and prolonged impairment
and has for at least 12 months. In my opinion, his situation is not expected to
improve in the near future. By this I mean in one or two years. The cumulative
effect of his bipolar disorder, his major depression, his anxiety, his panic
and essential tremors is that the appellant is markedly restricted in his
ability to perform more than one activity of daily living, without therapy.
[34]
Do the appellant's
impairments result in his being "all or substantially all of the
time", within the meaning of section 118.4, markedly restricted in his
ability to perform these activities? I think the answer is yes. Like the
appellant in Brown, supra, the appellant in this case has adapted
and lives independently, but this does not mean that his mental impairment is
not so severe as to render him incapable of perceiving, thinking or
remembering. He adapts by avoiding stressful situations, and if by chance he
finds himself in a stressful situation, he adapts by removing himself from that
situation as quickly as possible.
[35]
As for memory, it is
clear the appellant's memory is not reliable. He testified using notes he had
prepared ahead of time. He has difficulty remembering the details of his daily
activities. He cannot remember his medical appointments without writing them
down everywhere, on a calendar and many other places, and without asking
someone to remind him of these appointments. Even though before, he had the
ability to memorize a complete concerto, he is no longer able to. This is a
significant loss of his ability to memorize and remember. His memory problems
are exacerbated by stress. Although the memory loss can be triggered by very
little stress, the results of the loss are very serious and can be disastrous
for him; for example, the episode during the concert, described earlier.
[36]
As for his ability to
concentrate, he can follow the plot of a movie, but not if it evokes
emotions—this is too stressful. He can only read three or four pages of a book
before he loses track. He cannot concentrate in traffic when driving a vehicle.
He cannot function in a traffic jam, heavy traffic or when driving fast, and
must pull over onto the shoulder to calm down in these situations. He lives in
the present and has trouble planning his life. He cannot tolerate unexpected
events. He is not able to make simple choices such as deciding what to eat in
the morning. He cannot do two things at the same time. Financial decisions are
beyond him and he must consult someone to make sure he is not making bad
decisions.
[37]
Mr. Benoit suffers from
essential tremors almost all the time. These tremors aggravate his anxiety and
panic attacks. For him, this results in the simplest tasks becoming very
difficult. Tying shoelaces, picking things up from the ground, holding a cup of
coffee, getting dressed, eating and writing are all activities that, for the
average person, do not require much time or effort. But for Mr. Benoit, they
are big challenges and take an inordinate amount of time to perform. These
activities are examples of basic activities of daily living, and for
Mr. Benoit, they require an inordinate amount of time that is not the case
for the average person of the same age without an impairment. Instead of taking
a few seconds or minutes, Mr. Benoit needs an hour or sometimes more.
Conclusion
[38]
Having reviewed all the
evidence and considered the applicable legislative provisions and case law, I
feel that Mr. Benoit deserves the humane and compassionate interpretation
of the provisions suggested by Judge Bowman in Radage, supra, and
Judge Miller in Brown, supra. I therefore find that the cumulative
effect of his bipolar disorder, his major depression, his anxiety level, his panic
and essential tremors results in Mr. Benoit's being markedly restricted in
his ability to perform more than one basic activity of daily living.
Mr. Benoit's impairments are such that he is "all or substantially
all of the time", within the meaning of section 118.4, markedly restricted
in his ability to perform these activities.
[39]
If there is any doubt,
I grant the benefit of this doubt to Mr. Benoit.
[40]
For these reasons, I
allow the appeal and the assessment is referred back to the Minister of
National Revenue for reconsideration and reassessment on the basis that the
appellant is eligible for the disability tax credit.
Signed at Kingston, Ontario, this 31st day of March 2014.
"Rommel G. Masse"
Translation
certified true
on this 9th day of
May 2014.
Elizabeth Tan,
translator
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