Date: 19980611
Docket: 97-3668-IT-I
BETWEEN:
GILLES TREMBLAY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Lamarre, J.T.C.C.
[1] The appellant is appealing under the informal procedure
from an assessment made with respect to the 1995 taxation
year.
[2] By means of that assessment the Minister of National
Revenue ("the Minister") disallowed the non-refundable
tax credit in the amount of $719.61 claimed by the appellant for
a mental or physical impairment pursuant to ss. 118.3 and
118.4 of the Income Tax Act ("the Act").
[3] According to the appellant's testimony, he has
ventricular tachycardia. This physical impairment was diagnosed
in 1986 when he had to be hospitalized for a period of
50 days. The impairment causes dizziness, shortness of
breath and exhaustion and cannot be controlled by medication.
Although the appellant is equipped with a pacemaker, he can
suffer a tachycardia attack at any time if he makes the slightest
effort. When that happens he has to go to the hospital emergency
room at once. The attacks occur about ten times a month in the
winter and three or four times a month in the summer. When
he has an attack he can no longer function normally.
Dr. Teresa Kus, who filled out the appellant's
medical certificate (see Exhibit A-1), described this
condition as follows:
[TRANSLATION]
Idiopathic ventricular tachycardia indicated by rapid
palpitations and dizziness, requiring the implantation of an
anti-tachycardia pacemaker, which can be activated only in a
hospital emergency room, to interrupt the rapid rate under
medical supervision. These tachycardias are induced by moderate
effort.
[4] In addition to visits due to attacks the appellant has to
go to the Institut de Cardiologie twice a week and to the
Hôpital Sacré-Coeur in Montréal once a
month.
[5] The appellant, who is still regarded as an employee of the
Montreal Port Corporation, has been on disability leave since the
massive tachycardia attack he suffered in 1986.
[6] Since that time, all of his income has come from the
insurance proceeds he receives because of his disability. Thus,
he receives income from the Sun Life of Canada insurance company
and from his insurance policy with the Montreal Port Corporation.
He also receives a disability pension from the Régie des
Rentes du Québec. In addition, also because of the
disability, he is exempt from payment of a portion of the
premiums payable on his life insurance policy with the London
Life company.
[7] According to the medical certificate provided by
Dr. Teresa Kus, the appellant has had idiopathic
ventricular tachycardia since 1986 and his physical activity has
been markedly restricted since that time due to the risk of
triggering the tachycardia.
[8] According to the evidence submitted to the Court, and
based on this Court's decisions in Dennis Radage v.
The Queen, [1996] T.C.J. No. 730, and
Avril Maureen Cotterell v. The Queen, [1986]
T.C.J. No. 1781, I consider that the appellant meets the
requirements set out in ss. 118.3 and 188.4 of the Act for
entitlement to a credit for mental or physical impairment.
[9] I am in complete agreement with the comments of
Judge Bowman of this Court in Radage, at
paragraph 46 (pp. 52-57), and will reproduce certain
passages therefrom:
. . . Each case depends on its own facts and to a degree upon
the court's perception of the severity of the problem. If
asked "Where do you draw the line?" I can only answer
that I draw the line in any given case where my own common sense,
based on the evidence and on a compassionate view of what I think
Parliament was trying to achieve in section 118.3, tells me
to draw it.
(5) I do not mean by the foregoing to imply by any means that
the determination [should] be based on an arbitrary and
subjective knee-jerk reaction. It must be based not only on the
facts of the particular case but upon appropriate legal
principles. 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. . . .
. . .
. . . 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.
. . .
(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 . . . . 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.
[10] The Federal Court of Appeal cited certain of the
preceding passages with approval in Johnston v. The
Queen, [1998] F.C.J. No. 169, in particular as regards
the statutory interpretation relating to the application of
ss. 118.3 and 118.4 of the Act. Létourneau J.A.
added the following at paragraphs 11, 12 and 13:
[para11] Indeed, although the scope of these provisions is
limited in their application to severely impaired persons, they
must not be interpreted so restrictively as to negate or
compromise the legislative intent.
[para12] In Landry v. Her Majesty the Queen ([1995]
1 C.T.C. 2030), Judge Lamarre Proulx reviewed the
historical development of the
legislation. . . .
[para13] In 1986, the scope of the deduction was extended to
many severely disabling conditions which did not result in
confinement to a bed or wheelchair (see the Budget Papers of
May 23, 1985, at p. 56):
A new definition, applicable for the 1986 and subsequent
taxation years, to be administered by medical experts in the
Department of National Health and Welfare, has been developed
which will include all severely disabled Canadians. It will cover
persons with disabling conditions such as blindness, severe
cardio-respiratory failure, mental retardation or mental illness,
profound bilateral deafness, and functional impairment of the
neuro- or musculo- skeletal systems, who also deserve tax
assistance. Those administering the general medical definition
will assess eligibility by evaluating information provided by the
disabled person (or by his or her representative). If the effect
of the disability is to markedly restrict the person in
activities of daily living and if the disability has lasted or
can be expected to last for a continuous period of at least
12 months, the person will be issued a disability
certificate and will be eligible for the tax deduction. The new
definition is compatible with the goal of independent living for
disabled persons set out in the Report of the Special
Parliamentary Committee on the Disabled and Handicapped.
[11] In Radage the claimant had a mental impairment. In
the instant case, the appellant has a physical impairment. The
rules of interpretation remain the same.
[12] Like Judge Bowman, I consider that this is a case in
which the intent of Parliament could be no better served than by
awarding the appellant the tax credit for physical impairment he
is claiming.
[13] Additionally, the appellant pointed out that obtaining a
medical certificate each year is very costly. I feel this is a
case of a permanent physical impairment which should not require
the production of other medical certificates in future, as is
permitted by a Revenue Canada policy set out in Interpretation
Bulletin IT-519R of February 20, 1995.
[14] The appeal is therefore allowed with costs to the
appellant, if any.
Signed at Ottawa, Canada, June 11, 1998.
"Lucie Lamarre"
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 17th day of November
1998.
Stephen Balogh, revisor
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