Date: 19980119
Docket: 97-1606(IT)I
BETWEEN:
VILHO A. PARTANEN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Lamarre Proulx, J.T.C.C.
[1] This is an appeal by way of the
informal procedure; it concerns the disability tax credit
provided for by section 118.3 of the Income Tax Act
(the "Act") which was claimed by the Appellant
for the 1995 taxation year.
[2] The questions at issue are whether
it is an essential condition of entitlement to this credit that a
certificate issued by a doctor be provided, and if so, whether
this essential condition infringes the Appellant's rights as
guaranteed by the Charter of Rights and Freedoms (the
"Charter").
[3] The Minister of National Revenue
(the "Minister"), in assessing the Appellant,
disallowed the disability tax credit for the reasons described in
paragraph 7 of the Reply to the Notice of Appeal (the
"Reply"), as follows:
a) for the
1995 taxation year, the Appellant claimed a disability tax credit
in the amount of $719.61 ($4,233 x 17%) for himself;
b) the
Appellant has not submitted with his tax return a prescribed
form T2201 duly completed and signed by a doctor;
c) without
additional information, the Minister considered that the
Appellant's ability to perform a basic activity or daily
living was not markedly restricted during the 1995 taxation
year;
d) given that
the Appellant's ability to perform a basic activity or daily
living was not markedly restricted during the 1995 taxation year,
the disability tax credit in the amount of $719.61 was not
allowed.
[4] The Appellant explained to the
Court that, on January 23, 1981, he had a car accident while
driving a taxi in the City of North York in the Municipality of
Metropolitan Toronto (Exhibit A-1). This car accident
resulted in a knee injury, neck pain and headaches
(Exhibit A-2, Orthopaedic Report dated May 3,
1984). Since his accident, the Appellant appears to have become
unable to cope in a work situation and apparently receives a
disability pension.
[5] He provided the Court with his
medical record and with his correspondence with government
authorities respecting the effects of this accident which
material was filed, as Exhibits A-3 to A-6.
[6] He also explained to the Court
that it would be nearly impossible for him to obtain a doctor's
certificate as doctors do not want to see him and he may not want
to see them. Moreover, he said that he did not have the money to
pay for such a certificate, although no evidence was tendered to
show that these certificates had to be paid for or what amount
would have to be paid. Despite the statement that he did not see
doctors anymore, later on in the hearing he said that he had
recently seen an eye doctor at Notre-Dame Hospital. Asked
why he had not asked this doctor to complete the required
certificate, he answered that he could not ask this doctor to
complete a disability certificate when he was seeing him for his
eyes.
[7] He testified that he lived by
himself in an apartment, that he walked to a nearby grocery store
to do his grocery shopping, that he did his own cooking, washed
his dishes himself and also cleaned his apartment himself. He
says that the people in the neighbourhood are friendly and that
he has some friends nearby.
[8] Paragraph 118.3(1) of the
Act reads as follows:
(1) Where
(a) an
individual has a severe and prolonged mental or physical
impairment,
(a.1) the effects of the
impairment are such that the individual's ability to perform
a basic activity of daily living is markedly restricted,
(a.2) a medical doctor,
or where the impairment is an impairment of sight, a medical
doctor or an optometrist, has certified in prescribed form
that the individual has a severe and prolonged mental or physical
impairment the effects of which are such that the
individual's ability to perform a basic activity of daily
living is markedly restricted,
(b) the
individual has filed for a taxation year with the Minister the
certificate described in paragraph (a.2), and
(c) no amount
in respect of remuneration for an attendant or care in a nursing
home, in respect of the individual, is included in calculating a
deduction under section 118.2 (otherwise than because of
paragraph 118.2(2)(b.1)) for the year by the individual or
by any other person,
for the purposes of computing the tax payable under this Part
by the individual for the year, there may be deducted an amount
determined by the formula
A x $4,118
where
A is the appropriate percentage for the year. (Emphasis
added.)
[9] It is a requirement of the
Act that a medical doctor must have certified in
prescribed form that the individual has a severe and prolonged
mental or physical impairment the effects of which are such that
the individual's ability to perform a basic activity of daily
living is markedly restricted.
[10] It is also my view that the requirement
under section 118.3 of the Act that a certificate of
a medical doctor be filed with the income tax return of the
individual claiming the tax credit does not contravene the
equality rights guaranteed by the Charter since this
requirement is imposed on every taxpayer who claims the tax
credit for mental or physical impairment. Nor do I see how
it can be argued that it is a matter of systemic discrimination
since in Canada the health care system is universal.
[11] As he has not filed the prescribed
certificate, the Appellant's appeal should fail. I must say
that it should also fail because the evidence has not revealed
that the Appellant was unable or required an inordinate amount of
time to perform any basic activity of daily living as defined in
subparagraph 118.4(1)(c) of the Act.
[12] Paragraph 118.4(1) of the Act
reads as follows:
(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;
(c) a basic
activity of daily living in relation to an individual means
(i)
perceiving, thinking and remembering,
(ii) feeding and
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; and
(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.
[13] There is not one of the basic
activities described in subparagraph 118.4(1)(c) of
the Act that the Appellant is unable to perform. Indeed,
according to his testimony he is quite able to manage his life on
his own. I must add with respect to the activity of working that
the fact that the Appellant may be unable to perform this
activity is not relevant since it is specifically excluded from
the meaning of basic activities by subparagraph
118.4(1)(d) of the Act.
[14] The appeal is therefore dismissed.
Signed at Ottawa, Canada, this 19th day of January 1998.
J.T.C.C.
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