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Neutral citation: 2002 FCA 118
CORAM: DÉCARY J.A.
HER MAJESTY THE QUEEN
RAY F. HAMILTON
Heard at Ottawa, Ontario, February 20, 2002
Judgment delivered at Ottawa, Ontario on March 22, 2002
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED IN BY: DÉCARY J.A.
Neutral citation: 2002 FCA 118
CORAM: DÉCARY J.A.
HER MAJESTY THE QUEEN
RAY F. HAMILTON
REASONS FOR JUDGMENT
 This is an application by the Crown for judicial review of the decision of Tax Court Judge Diane Campbell in Hamilton v. Canada,  3 C.T.C. 2163,  T.C.J. No. 300 (T.C.C.). The respondent Ray Hamilton suffers from celiac disease, which is defined as follows in a document published by the Canadian Celiac Association and produced as evidence in the Tax Court:
Celiac disease, or gluten-sensitive enteropathy, is a genetically based permanent intolerance to ingested gluten. It results in immunologically mediated inflammatory damage to the mucosa of the small intestine. Untreated, it can result in severe steatorrhoea and malnutrition, and increased risk of other diseases including lymphoma and osteoporosis.
 The only treatment for celiac disease is a gluten-free diet. In practical terms, this means eliminating from the diet anything containing wheat, rye, barley, oats or triticale, or any products derived from these grains.
 Celiac disease does not require avoidance of meat, fish, vegetables, fruit or starches that do not contain gluten, such as rice, wild rice, potatoes and corn. However, care must be taken in food preparation to avoid cross-contamination. Eating in restaurants presents obvious challenges to persons with celiac disease, as does the purchase of prepared foods. A person with celiac disease who wishes to eat prepared foods must always ensure that there is no gluten listed as one of the contents and that there is no undisclosed gluten in the food. This can be a time consuming exercise, as food producers sometimes change the formulation of their products.
 When filing his income tax return for 1999, Mr. Hamilton claimed the disability tax credit in subsection 118.3(1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) on the basis that his ability to feed himself was markedly restricted by his medical condition. Judge Campbell held that his claim was well founded. The Crown disagrees and seeks to set aside the decision.
 Under subsection 118.3(1) of the Income Tax Act as it read for 1999, the disability tax credit was available to anyone with a severe and prolonged mental or physical impairment that markedly restricted the person's ability to perform a basic activity of daily living. A basic activity of daily living was defined in subsection 118.4(1) to include feeding oneself, but to exclude working, housekeeping or a social or recreational activity.
 Paraphrasing from paragraph 118.4(1)(b) as it read for 1999, a person's ability to feed oneself is "markedly restricted" if, all or substantially all of the time, the person is unable or requires an inordinate amount of time to feed himself or herself. Létourneau J.A., speaking for the majority in Johnston v. Canada (1998), 223 N.R. 101,  2 C.T.C. 262, 98 D.T.C. 6169,  F.C.J. No. 169 (F.C.A.), said this at paragraph 18:
... 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.
 In Radage v. Canada,  3 C.T.C. 2510, 96 D.T.C. 1615,  T.C.J. No. 730 (T.C.C.), Judge Bowman explained the object of the disability tax credit as follows at paragraph 45:
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.
...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. ...
 This passage was expressly approved by Létourneau J.A. in Johnston. In 1999, the formula in subsection 118.3(1) would result in a disability tax credit of approximately $700.
 Johnston involved a person who suffered from spinal epiphyseal dysplasia, which caused abnormalities in the formation of joints and led to debilitating osteoarthritis. Létourneau J.A. described his situation as follows at paragraph 34 (footnotes omitted):
In the present instance, the evidence is overwhelming that, except for operating a microwave to cook a potato, boiling tea and occasionally making a sandwich, the Applicant cannot prepare food generally, let alone food that is medically required by his state of health and medication, that he needs daily assistance for his meals and that on some days, up to 10 or 12 a month, he cannot even get up from his bed and go downstairs.
 Against that factual background, Létourneau J.A. interpreted the phrase "feeding oneself" as follows at paragraphs 31 to 33:
 Counsel for the Respondent argued before us, and it was accepted by the learned Judge, that the notion of "feeding" refers to a person's capacity to take food from a plate and bring it to his mouth. I strongly disagree. There is no doubt that a two-year-old child can take food from a plate and put it in his mouth, but there is also no doubt that nobody would assert that that child is able to feed himself. I agree with this statement of Bonner T.C.J. in M.R. Hodgin v. The Queen [ E.T.C. 515,  T.C.J. No 1183]:
I turn next to feeding oneself. That involves, in my view, something more than eating a meal prepared by another person. One cannot feed oneself unless one is capable of taking basic food stuffs in the form commonly available in a grocery store and cooking or otherwise preparing and setting out a meal. The test is feeding oneself, not simply eating a meal. The language of the legislation is clear in that respect. The requisite ability to feed oneself involves the ability to prepare a reasonable range of food and not just to prepare and set out snacks, junk foods or frozen dinners. Here the limitations on the movement of the Appellant's hands required the assistance of her husband in meal preparation to a degree that supports a conclusion that the Appellant was incapable of feeding herself. (Emphasis added.)
 The notion of feeding, in my view, also involves the ability to prepare a meal which conforms to a medically prescribed diet and medication which maintains one's state of health or prevents its deterioration.
 To limit the notion of feeding to the ability to eat a meal is to overlook the objective of the statute which, it bears repeating, is to financially assist those who, because of their disability, require assistance in fulfilling such a basic activity of daily living. To include the preparation of a reasonable meal in the notion of feeding is, on the contrary, fully consistent with such objective and the spirit of the disability credit.
 In this case, Judge Campbell relied on Johnston to find that Mr. Hamilton was entitled to the disability tax credit. Her conclusions and reasoning are stated as follows in paragraphs 28 to 30 of her decision (emphasis added):
 ... On the evidence presented before me, I find that the Appellant must take an inordinate or excessive amount of time to prepare his meals in comparison to that of healthy persons not afflicted with celiac disease. The preparation of a reasonable variety of foods, sufficient to maintain a gluten-free diet and yet complement his diabetic requirements, requires the following:
(1) Canvassing several retail outlets for food products not commonly available in grocery stores.
(2) Reading each and every label, even those purchased regularly due to manufacturer changes.
(3) Monthly calls to the manufacturer to ascertain certainty of ingredients.
(4) Time spent locating, reading and adapting recipes to ensure reasonable range of food.
(5) Time spent in preparation and cooking time in excess of that involved in a healthy person's diet.
(6) Separation of products, utensils, pots and pans to prevent cross contamination of gluten-free products with those food products which are not.
(7) Additional kitchen cleanliness procedures not normally required for healthy persons.
 Such activities together are a marked departure from normality and represent a significant departure from what is common and customary. The Federal Court of Appeal in Johnston has stated that the notion of feeding oneself involves the ability to prepare a meal. Respondent's counsel argued that the act of shopping is not a part of the act of feeding oneself. I cannot agree. The purchase and preparation of gluten-free foods is the only avenue of control for this life threatening disease. To prepare appropriate nutritious gluten-free meals, the Appellant must shop for the proper food products. Without those he clearly cannot prepare a meal to satisfy both a gluten-free and diabetic diet. Shopping is the first logical step in this preparation process. I conclude that the preparation of meals for this Appellant involves shopping for and the selection of gluten-free foods with the attendant additional time expended including label reading, checking with manufacturers ensuring no cross contamination, adapting recipes, separation of products, additional preparation and cooking time to ensure a food item is gluten-free. This is more than mere inconvenience. The totality of all these activities taken together in anticipation of preparing every meal as gluten-free equates to an inordinate amount of time spent on feeding oneself compared to the time spent by the ordinary healthy person following a routine diet. The Appellant must live within the long shadow of this disease and in doing so must bear the additional costs and expend the necessary time to control this impairment. Judge Bowman of this Court stated in Radage v. The Queen, 96 D.T.C. 1615 at page 1625:
...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.
 In this same case, Judge Bowman went on to say that if there is doubt on which side of the line a claimant falls, the doubt should be resolved in favour of the claimant. In every case involving these provisions, this statement of Bowman's must in the end be the guiding directive.
 The Crown argues that Judge Campbell's interpretation of the statutory provisions is wrong. I summarize the Crown's argument as follows. The term "feeding oneself" in subsection 118.4(1) may include food preparation if, as was the case in Johnston, there is a marked restriction in one's physical ability to prepare food. However, Johnston is not authority for the proposition that "feeding oneself" includes the work required in identifying and procuring foods that are safe to eat, and to extend Johnston to include those activities is to stretch the words of the statute beyond their meaning. Subsection 118.3(1) is not intended to provide tax relief to a person whose only problem is a medical condition that requires a special choice of food. Thus, a person who has such a condition, no matter how severe or how limited the range of foods that may be safely ingested, cannot qualify for the disability tax credit. If the disability tax credit is allowed to persons only because they must take extraordinary care in the selection of foods, entitlement to the disability tax credit will depend more upon personal food preferences and the availability of specialized food markets than the actual physical incapacity created by celiac disease.
 It seems to me that the last point overstates by several degrees the issue raised in this case. Judge Campbell did not and did not purport to find that everyone with celiac disease would be entitled to claim the disability tax credit, or that narrow personal food choices or lack of convenient food markets would justify a claim for a disability tax credit. If she had decided the case on those grounds, she would have erred. However, she found in favour of Mr. Hamilton because of the severity of his celiac disease symptoms and the extraordinary degree to which his food preparation, including the identification and procurement of foods that he can safely eat, was burdened by those symptoms.
 In my view, the legal question raised by this case is whether, in the context of the disability tax credit provisions of the Income Tax Act, the work required to find and procure foods that can safely be eaten are properly considered part of "food preparation", which the jurisprudence has now established is an aspect of "feeding oneself" under subsection 118.4(1). In this case, Judge Campbell answered that question in the affirmative, as have other Tax Court Judges in other cases (discussed below). I respectfully agree with that conclusion. Anyone who has ever prepared a meal must recognize that the process of food preparation begins with choosing and procuring the food. No other conclusion makes sense.
 That is not the end of the debate, however. A person with a medical condition that imposes dietary constraints may claim that, because of those constraints, food procurement takes an inordinate amount of time. If the existence of the medical condition and the resulting dietary constraints are established, it would then be a question of fact whether, for that person, the time spent in finding and procuring a safe food supply is excessive or inordinate in the sense of a marked departure from the time spent by normal persons.
 Thus, not everyone with celiac disease is automatically entitled to the disability tax credit. Eligibility for the disability tax credit would depend on the circumstances of the claimant. The symptoms suffered in a particular case may or may not be as severe as in the case of Mr. Hamilton, and they may or may not require the person to take an inordinate amount of time to procure food that can be safely ingested.
 The critical role played by the evidence in each case is illustrated by the jurisprudence in the Tax Court. Apart from this case, there are five reported decisions of the Tax Court involving persons claiming the disability tax credit on the basis of a marked restriction in the ability to feed oneself. Three claims succeeded, and two failed. As I read these cases, the differences in result are attributable primarily to the evidence.
 Where the time spent in food procurement was only slightly more than normal or represented only increased inconvenience, the person was held not to be entitled to the disability tax credit: Hagen v. Canada,  3 C.T.C. 3128,  T.C.J. No. 827 (T.C.C.) per Judge Bonner, and McMaster v. Canada,  1 C.T.C. 2658,  T.C.J. No. 301 (T.C.C.) per Judge Lamarre Proulx. The following appears at paragraph 14 in McMaster (emphasis added):
... if the foods that a person could eat were so rare that a person had to spend an inordinate amount of time looking for them, it would have to be concluded that looking for food was not separate from the activity of feeding oneself. That is not the case here, however. The suitable foods are not so rare that the appellant can hardly find anything to eat. To a very large degree, however, he can find his food in supermarkets like other people do, although he must be careful to check the ingredients in prepared foods. He has to go farther away to obtain some foods, such as pasta. Because of that, and because of the care he must take in purchasing prepared products, he argued that he is different from other people. But to what extent? To an extent that strikes me as minimal.
 By contrast, in Leduc v. Canada,  3 C.T.C. 2264,  T.C.J. No. 765 (T.C.C.), Judge Lamarre found that a person with celiac disease was entitled to the disability tax credit. She said this at paragraph 16 of her reasons:
... I find the evidence shows that, in order to feed herself (that is to say to take all the necessary steps in prepare meals suitable to her diet), Ms. Michalk must take much more time than healthy persons are normally required to devote to this activity. In my view, it requires a marked departure from normality.
 Most recently, in Noaille v. Canada,  T.C.J. No. 603, Judge Bowman also found that a person who suffered the symptoms of celiac disease was entitled to the disability tax credit. He said this at paragraphs 12, 15 and 16 (emphasis added):
____I acknowledge that there appears to be a difference of opinion within this Court concerning celiac disease....
_____It would be pointless to try to reconcile these two lines of decisions. Each case turns on its own facts and, particularly in the case of celiac disease, differences in the severity of the disease are extreme and striking. Mrs. Noaille's case is clear and extreme.
_____I agree with and adopt Judge Lamarre's reasoning in Leduc and that of Judge Campbell in Hamilton. In their decisions, both judges followed the reasoning of the Federal Court of Appeal in a previous decision in Johnston v. The Queen, 98 D.T.C. 6169.
 In Nantel v. Canada,  T.C.J. No. 345, Judge Lamarre Proulx held, again following Johnston, that the disability tax credit was available for children whose exceptionally severe food allergies required the mother to spend an inordinate amount of time looking for and preparing foods. She said this at paragraph 17 of her reasons:
When it comes to the activity of feeding oneself, it is not just the act of putting food in one's mouth that must be considered. Looking for and preparing food must be as well.... As regards celiac disease, I have not found that a person suffering therefrom requires very much more time for feeding himself or herself than is required by normal people. In the instant case, however, I feel that the time spent looking for and preparing food greatly exceeds the time usually spent by normal people on those activities.
 To summarize, persons with celiac disease or other medical conditions that impose dietary restrictions are eligible for the disability tax credit if, but only if, they can establish by evidence that they require an inordinate amount of time to find, procure and prepare foods that can safely be eaten.
 The Crown's alternative argument, which is relevant only because I have concluded that Judge Campbell correctly interpreted the statutory provisions, is that the time spent by Mr. Hamilton in finding and preparing appropriate food was not inordinate. There was evidence upon which Judge Campbell could conclude that, for Mr. Hamilton, the procurement and preparation of food took an inordinate time, in the sense of a "marked departure from normality" or a "significant departure from what is common and customary". The record discloses no palpable or overriding error in her findings of fact.
 I conclude, therefore, that there is no basis for interfering with the decision of Judge Campbell in this case. This application for judicial review should be dismissed with reasonable and proper costs to be paid to the respondent pursuant to s. 18.25 of the Tax Court of Canada Act.
Robert Décary J.A."
B. Malone J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE:
HER MAJESTY THE QUEEN v. RAY F. HAMILTON
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: FEBRUARY 20, 2002
REASONS FOR JUDGMENT : SHARLOW J.A.
CONCURRED IN BY: DÉCARY J.A.
DATED: MARCH 22, 2002
Ms. Patricia Lee
Ms. Catherine Letellier de St-Just
FOR THE APPLICANT
Ms. Susan Tataryn
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Deputy Attorney General of Canada
FOR THE APPLICANT
Rasmussen Starr Ruddy
FOR THE RESPONDENT