Date:
20021119
Docket:
1999-4876-IT-G,
2000-2842-IT-G
BETWEEN:
DORIS
MAHONEY,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Reasons
for Judgment
Hershfield, J.T.C.C.
[1]
These appeals under the General Procedure were heard on
common evidence. Together they are appeals in respect of the
Appellant's 1994, 1995, 1996, 1997 and 1998 taxation
years.
[2]
In each of the subject years the Appellant claimed the so-called
"equivalent to spouse" tax credit in respect of her
daughter Maureen. Maureen was over 18 years of age, lived with
and was supported by her mother, the Appellant, throughout the
years in question.
[3]
The claim to the credit is based on paragraph 118(1)(b) of
the Income Tax Act (the "Act").
There are several requirements set out in paragraph
118(1)(b) that must be satisfied in order to claim the
subject credit. Most are not in issue in this case. The
Respondent denied the credit on the basis that Maureen was not
"wholly dependent for support" on the Appellant at any
time in any of the subject years "by reason of mental or
physical infirmity". The dependency is not questioned. The
only issue to be decided in this case is whether there is
sufficient evidence to warrant a finding of dependency by reason
of mental or physical infirmity. The parties disagree as to what
constitutes an "infirmity" under this provision of the
Act.
[4]
The Appellant brought three witnesses, namely, herself, Maureen
and a second daughter Lisa. No independent, disinterested
witnesses were called and there was no supporting evidence of any
particular medical condition suffered by Maureen or of any
disability that would result in or corroborate an
"infirmity". The Appellant argued that there is nothing
in the express language of the subject provision that requires
her to establish a medical cause for the alleged infirmity or
that requires it to be a medical condition or diagnosable medical
condition. The Appellant further argued that it is open for this
Court to accept the testimony of the witnesses as to the nature
and extent of Maureen's state of health or well-being in the
subject years in order to determine that she was wholly dependent
on the Appellant for support in each of the subject years, or at
times in each of the subject years, by reason of mental or
physical infirmity.
[5]
Both parties rely on the ordinary meaning of the word
"infirmity" although the Respondent takes a narrower
view than the Appellant as to such meaning when read in the
context of the subject provision and the intention of
Parliament.
FACTS
[6]
Maureen was born on September 29, 1967 and was in her late
twenties in the first few of the subject years. She lived with
her mother, the Appellant, throughout the subject years. Indeed,
it appears from the evidence that she has always lived at home
and continues to do so. She never finished high school having
dropped out of school in the tenth grade. She has never worked.
She has been supported by her mother who has been the wage earner
in the family. I have no difficulty in accepting the testimony of
the witnesses on these points and in concluding that Maureen was
wholly dependent on the Appellant for support throughout the
subject years. Maureen relies entirely on her mother to provide
the roof over her head, food to eat and clothes to wear. She has
never had any other means of financial support. The question is
"why?".
[7]
The Appellant testified that Maureen suffered from breathing
problems and chronic fatigue that prevented her from supporting
herself. Her sister, Lisa, testified that Maureen was prone to
stomach cramps, allergies, skin rashes and colds and flues in
addition to breathing problems. Attending school, helping in the
yard around their family home and more recently even playing with
Lisa's daughter proved exhausting and were more than Maureen
could handle. Indeed, the testimony was that she dropped out of
school as she was absent on a regular basis and unable to
participate in school activities due to fatigue and
sickliness.
[8]
Maureen herself testified it was chronic fatigue and illness that
caused her to leave school at age 16. She said that she had been
diagnosed with heart valve problems, an arthritic jaw and
Raymond's syndrome (a condition she said affected blood
vessels) but corroborating evidence was lacking. Four documents
were produced as corroborating her testimony but their admission
was objected to on the basis that they could not be properly
attested to or cross-examined on.
[9]
The first document tendered was a sickness certificate said to
have been signed on May 5, 1998 by a Dr. Suciu. It states
that Maureen has "chronic medical problems". The second
document appears to be a clinical record sheet of a Dr. Mann
who, it seems, saw Maureen in 1998. This clinical record does
make reference to a dental and oral pathologist, swallowing
problems, upset stomach, allergies and a number of illegible
notations including the notation "Raymond" that Maureen
said confirmed the blood vessel syndrome referred to above.
[10] The third
document purports to be a physician's report completed by a
Dr. O'Shea. This report was done in 1992 and refers to
allergies, dry skin and a number of other notations, which are
largely illegible.
[11] The fourth
document is a handwritten note the source of which was not
explained. It appears to refer to skin and food problems for
which Maureen was seen by a medical doctor over the summer of
1992.
[12] Clearly, it
is difficult to accept these documents as corroborating anything.
While I did not rule them inadmissible I can afford them no
weight. Without the opportunity to examine the doctors named in
these documents, they have no probative value even though their
origin and authenticity are not suspect.
[13] When asked
to explain why she was not in a better position to provide
evidence on Maureen's medical condition over the years,
particularly in the subject years, the Appellant and Maureen both
asserted that Maureen's chronic fatigue has never been properly
diagnosed or treated. Maureen did not have a family doctor in the
subject years (and it seems still does not). She relied on
drop-in clinics. Doctors mentioned in testimony were not
available to testify. One or more had retired or moved away.
Regardless, I conclude that the Appellant simply did not have a
doctor able or willing to testify as to Maureen's chronic
fatigue, breathing problems and sickliness. I should note at this
point that this matter first came up for hearing before me on
September 4, 2001. I adjourned that hearing to afford the
Appellant an opportunity to call independent witnesses to
corroborate the family's evidence of Maureen's health. She
failed to do so. The Respondent's counsel suggested that a
negative inference be drawn given that medical evidence was not
called to attest to the cause of Maureen's alleged infirmity.
If the subject provision of the Act required the Appellant
to establish a medical cause for the infirmity, I would draw such
negative inference. However, as I note later in these Reasons,
the Act does not require the cause of the infirmity to be
identified. On the other hand, aside from any negative inference,
there is always an onus issue in respect of establishing an
infirmity. Such onus is often best met by disinterested
testimony. However, what constitutes the best evidence is a
question of fact that can only be determined on a case-by-case
basis. The credible testimony of persons most familiar with the
facts can be the best evidence regardless that such persons have
an interest in the outcome of an issue on which their evidence
bares. In the circumstances of this case, Maureen's family might
well be the persons most familiar with her general state of
health.
[14] That leads
me to describe, as best I can, based on the testimony of the
witnesses, my impression of the state of well-being of Maureen
during the subject years. I have, as well, observed Maureen
throughout these proceedings. My general impression is consistent
with the tenor of the testimony. I accept the likelihood that
Maureen was a frail and somewhat sickly child. I too would
describe her as frail, indeed somewhat anaemic, in appearance as
she stood before me. This was not a staged presence by any means.
On the other hand, she was clearly very intelligent and capable.
Indeed, I had the impression that she quarterbacked these
appeals. She did not drop out of school for want of intellectual
ability. Her dependency then might have any number of
explanations. The physical fatigue is genuine and the sickliness
she experienced as a child continued into her adult life to the
point that she could not support herself. Or, possibly, an
over-protective mother wrapped her in an emotional blanket of
safety and care-giving at home, so as to foster dependency. While
I believe the latter may be a contributing factor, I accept
Maureen's testimony as to her chronic fatigue and low resistance
to health problems. Even accepting this, however, I am left with
the impression that Maureen can do more. One day, on her own, she
will likely have to find a way to apply her intellect, as many
others do, to support herself inspite of her health issues. The
question that arises then is whether my impression that Maureen
is capable of more is determinative. The reality is that given
her frailty, fatigue and low resistance to health problems and
given that she had a family ready, willing and able to support
her, she was wholly dependent on the Appellant for support
throughout the years in question.
RESPONDENT'S POSITION
[15] The
Respondent cites the following dictionary meanings of the word
"infirm" and "infirmity":
The
Concise Oxford English Dictionary defines
"infirm" as "1. not physically strong, especially
through age; 2. ... irresolute; weak". "Infirmity"
is defined as "physical or mental weakness". (The
Concise Oxford English Dictionary, 10th ed., Oxford
University Press, 2002.)
The 3rd
edition of Words and Phrases Legally Defined describes
"infirmity" as follows:
As regards "infirmity" [under the rules of a Friendly
Society], that means some permanent disease, accident or anything
of that kind, rendering the member an object deserving of the
assistance of the society. Re Buck, Bruty v. Mackey,
[1896] 2 Ch 727 at 734, per Kekawich J. (Words and Phrases
Legally Defined, 3rd ed., Butterworths, London,
1989.)
Black's Law Dictionary defines "infirmity" as:
Disability;
feebleness. In an application for insurance is an ailment or
disease of a substantial character, which apparently in some
material degree impairs the physical condition and health of the
applicant and increases the chance of his death or sickness and
which if known, would have been likely to deter the insurance
company from issuing the policy. See also incapacity.
(Black's Law Dictionary, 6th ed., West Publishing Co.,
St. Paul, Minn., 1990.)
[16] The
Respondent accepts that "infirmity" denotes a spectrum
of conditions, from weakness to disability, but argues that the
rules of statutory construction encourage ascribing a meaning
akin to disability. The Respondent asserts
that the scheme of the Act is that, in the normal course,
a child attaining the age of 18 is to be regarded as
self-sufficient and not a person in respect of whom relief is to
be given under paragraph 118(1)(b) of the Act.
"Infirmity" is meant to describe an exceptional state
of health akin to a disability. A general malaise or frailty
would not be sufficient to constitute an "infirmity" in
this context.
[17] The
Respondent referred to the following passage to support the
contention that Parliament considers "infirmity" to be
aligned with "disability":
Oct.
2000 Economic Statement Speech: Mr. Speaker, this Government has always understood
that there are certain priorities that cannot be deferred.
Assisting Canadians with disabilities is one of these. Indeed,
even when we were in deficit, we took action. We have enriched
the tax credit for infirm dependents, enhanced the medical
expense credit, increased the childcare expense deduction for
children with disabilities and expanded eligibility for the
disability tax credit. Today we will do more. We will further
enrich the amount for the infirm dependent tax credit from $2,386
to $3,500; we will similarly increase the supplement amount for
the disability tax credit for children with severe disabilities
from $2,941 to $3,500; and we will increase the amount for the
disability tax credit from $4,293 to $6,000.
Income Tax Act - Technical Notes
13th ed., David Sherman, Carswell,
Toronto, 2001
[18] The above
passage refers to a different credit afforded under
paragraph 118(1)(d) for an infirm dependent. That
credit is not in question here as subsection 118(4) denies the
infirm dependent credit where the credit is claimed in respect of
the same person under 118(1)(b). Still, the speech implies
that an infirm person falls within the group of disabled persons
being assisted even though under the Act disabilities are
exactingly defined and would not include
"infirmity".
[19] The
Respondent admits that "infirmity" cannot be taken to
be analogous to "disability". It must be taken,
however, to mean an identifiable and severe disabling condition
that results in complete dependency for support on something
other than a temporary basis. Temporary illness could not
constitute an infirmity.
[20] The
Respondent argues that infirmity must mean more than
"weakness" in the context of the subject provision as
it must be a condition that gives rise to complete dependence.
"Weakness", in its common usage, does not give rise to
complete dependence. The Respondent asserts that there is not
sufficient evidence of the severity of Maureen's health
issues (weakness or frailty or even fatigue) to warrant a finding
of complete dependency by reason of mental or physical
infirmity.
[21] Lastly, I
note that the Respondent referred to R. v. Aldo Diaz and
acknowledged the definition of "infirmity" provided in
that case by Justice Marceau. He found, at paragraph 6, that
the word "infirmity" must be taken in its general sense
as "the state of being of poor or deteriorated
vitality". In Diaz, Justice Marceau found the
Appellant's mother's high blood pressure and general poor
condition sufficient to find her infirm, i.e., being in a state
of poor or deteriorated vitality. Ascribing such meaning to the
work "infirmity" affords no assistance to the
Respondent's argument that the infirmity needs to be so
severe and prolonged as to disable a person from being
self-sufficient. However, the Diaz case was decided in the
context of paragraph 109(1)(f) as it read in 1976.
That paragraph allowed deductions for expenses incurred for the
support of a person who was dependent for support by reason of
mental or physical infirmity. There was no requirement that the
dependent be "wholly" dependent for support. The
question then is whether the addition of the word
"wholly" changes anything in the proper construction of
paragraph 118(1)(b).
APPELLANT'S POSITION
[22] The
Appellant referred to several dictionary meanings of
"infirmity":
-
physical or mental weakness - The New Oxford Dictionary of
English;
-
physical weakness or ailment - Random House Webster's
College Dictionary;
-
the state of being infirm; weakness; feebleness - Compact
Dictionary of Canadian English;
-
state of being weak or sick - Dictionary of American
English;
physically weak esp. through age; weak, irresolute (of person,
mind, judgment, etc.) - The Canadian Oxford
Dictionary;
-
physical weakness or defect,
frailty or ailment as from old age; moral weakness -
Webster's New World Collegiate Dictionary, 4th ed.,
1999.
[23] The
Appellant cites and relies on the Diaz case and referred
me in particular to the following passage from Justice
Marceau's judgment:
In my view, the word "infirmity" implies more than mere
retirement age, but it must be taken in its general sense, i.e.
the state of being of poor or deteriorated vitality (see
Webster's New Collegiate Dictionary). As to the manner
in which such "infirmity" may be proven, I do not see
why a clear unequivocal, detailed and uncontradicted statement or
testimony of the taxpayer should not be accepted as sufficient if
it is convincing.
[24] The
Appellant distinguishes the definition of "infirmity"
in Words and Phrases Legally Defined referred to at
paragraph 15 of these Reasons on the basis that it was a
definition prescribed in the rules of a "Friendly
Society". No such prescribed definition exists in the
Act and the definition prescribed for another purpose at
another time and place cannot be of assistance in understanding
the ordinary meaning of the word
"infirmity".
[25] As to the
Black's Law Dictionary definition of
"infirmity" cited by the Respondent, the Appellant
argues "feebleness" means "weak, not strong"
and that "disability" cannot be a meaning ascribed to
"infirmity" in the context of the subject provisions
given the clear and distinguishing definition of disabling
impairments prescribed in subsection 118.4(1) of the
Act.
[26] The
Appellant argues that the use in paragraph 118(1)(b) of
the word "infirmity" must be taken to denote a less
debilitating condition than that expressly described in and
required by the Act in respect of persons with
disabilities. The disability tax credit both requires a
certification of the disability and that the disability be
prolonged and severe. The requirement is that the disability must
be such as to disable the person, all or substantially all of the
time, from performing a basic activity of living. The absence of
a comparable requirement in paragraph 118(1)(b)
demonstrates that the Act cannot be taken to intend to
impose a similar restrictive regime in the determination of
dependency by reason of infirmity.
[27] As to
statutory construction, the Appellant cites Friesen v.
Canada. It appears that the
reason for citing this case is to provide authority for the
proposition that the courts should not read in extra requirements
in the construction of a statutory provision where there is an
acceptable interpretation which does not require such insertions.
I take it from her submission that the additional wording that
the Appellant does not want ascribed to the provision is wording
that effects a requirement of medical evidence. Indeed, the
Appellant has gone so far as to argue that the C.C.R.A.'s
insistence on having corroborating medical evidence is a breach
of its obligation to enforce the terms of the
Act.
[28] Lastly, the
Appellant argues that the intention of Parliament should be taken
to allow the personal credits claimed by a supporting person,
such as the Appellant, where that dependent's degree of
physical dependence or incapacity does not qualify for
assistance under such sections as
sections 118.2 or 118.3.
ANALYSIS
[29] Clearly,
medical evidence of infirmity or its effects is not a requirement
of the subject provision. Paragraph 118(1)(b) provides as
follows:
118. (1)
For the purpose of computing the tax payable under this Part by
an individual for a taxation year, there may be deducted an
amount determined by the formula
A x B
where
A is the
appropriate percentage for the year, and
B is the
total of
. .
.
(a) . . .
(b)
wholly dependent person - in the case of an individual who
does not claim a deduction for the year because of paragraph (a)
and who, at any time in the year,
(i)
is an unmarried person or a married person who neither supported
nor lived with the married person's spouse and is not
supported by the spouse, and
(ii)
whether alone or jointly with one or more other persons,
maintains a self-contained domestic establishment (in which the
individual lives) and actually supports in that establishment a
person who, at that time is
(A)
except in the case of a child of the individual, resident in
Canada,
(B)
wholly dependent for support on the individual, or
the individual and the other person or persons, as the case may
be, (emphasis added)
(C)
related to the individual, and
(D)
except in the case of a parent or grandparent of the individual,
either under 18 years of age or so dependent by reason of
mental or physical infirmity, (emphasis added)
an amount
equal to the total of
(iii)
$6,000, and
(iv) an
amount determined by the formula
$5,000 - (D - $500)
where
D is the
greater of $500 and the income for the year of the dependent
person,
[30] By way of
contrast, one might only look to
paragraph 118.2(2)(c) which expressly provides for
medical evidence as to the effects of infirmity.
118.2 (2)
Medical expenses - For the purposes of subsection (1), a medical
expense of an individual is an amount paid
. .
.
(c)
as remuneration for one full-time attendant upon the patient in a
self-contained domestic establishment in which the patient lives,
if
(i)
the patient is, and has been certified by a medical practitioner
to be, a person who, by reason of mental or physical
infirmity, is and is likely to be for a long-continued
period of indefinite duration dependent on others for the
patient's personal needs and care and who, as a result
thereof, requires a full-time attendant, (emphasis
added)
(ii)
at the time the remuneration is paid, the attendant is neither
the individual's spouse nor under 18 years of age,
and
(iii) each
receipt filed with the Minister to prove payment of the
remuneration was issued by the payee and contains, where the
payee is an individual, that individual's Social Insurance
Number,
[31] Paragraph
118.2(2)(c), unlike paragraph 118(1)(b), requires medical
evidence. However, the evidence required is not of a medical
condition that caused the infirmity, but of the extent of the
effects of an "infirmity" that need only be given its
ordinary meaning.
[32] In
paragraph 118.2(2)(c) the credit is available where there
is a physical dependency supported by medical evidence.
There is no similar evidentiary requirement in
paragraph 118(1)(b) where the effect of the infirmity
affording the credit is dependency for support. Other
contrasting provisions are found
elsewhere in the Act. Clause 60(1)(v)(B);
subsection 146.3(6.11); and clause (a)(ii)(A) of the
definition of "preferred beneficiary" in subsection
108(1) each refer to "infirmity" without reference to
medical evidence while the amount described in subsection 63(2)
as "C", which also refers to "infirmity",
includes a medical certificate requirement. Clearly, the services
of medical practitioners are not being called upon for every
question that arises under the Act relating to health
issues. Where medical evidence is not required it must be assumed
that Parliament has considered the balance between drawing
further on the limited resources of our medical system and
setting the threshold for a given tax expenditure. As well, as
noted, the provisions requiring medical evidence of the effects
of infirmity are concerned with effects other than dependency for
economic support. The Respondent does not take issue that
in the context of paragraph 118(1)(b), the support
referred to is economic support or financial support for
the provision of the necessaries of life: food, shelter and
clothing.
[33] Still, the
infirmity must be established. That paragraphs such as
118.2(2)(c) prescribe an evidentiary burden (as to the
effect of infirmity) not prescribed in
paragraph 118(1)(b), does not mean that a taxpayer
can ignore the onus of establishing the infirmity. It is open for
an officer of the C.C.R.A. and for a judge not to be convinced by
the simple statements of interested family members. An Appellant
takes the risk of not being convincing if too much reliance is
placed on the absence of a prescription in the Act that a
medical opinion is required to confirm the effects of infirmity.
The Act does not say that it would be unreasonable to
request or provide medical evidence as to a dependant's general
state of health. Nor does it suggest that medical evidence would
not assist the taxpayer in establishing the state of health or
vitality of the alleged dependent. On the other hand, that the
"required" evidentiary bar of the subject provision is
relatively low, when contrasted to other health related
provisions in the Act, might be kept in mind in giving a
contextual meaning to the word "infirmity".
[34] In
considering the contextual meaning of "infirmity" in
paragraph 118(1)(b), its place in the Act must
be considered. Paragraph 118(1)(a) (not set
out above) provides for a married persons tax credit in the case
of a taxpayer supporting a spouse. Persons such as the Appellant
who do not have a claim in respect of a spouse can receive the
equivalent credit under paragraph 118(1)(b) in
recognition of supporting certain other qualified related
dependents including an adult child provided, in the case of an
adult child, that child is wholly dependent for support by reason
of mental or physical infirmity. These are personal credits
afforded, generally speaking, to individual taxpayers who support
another person in their home. They are reduced where the
dependant person has income in the year over $500.00 although,
regardless of the income of the dependent person, a minimum
credit is still allowed under paragraph 118(1)(b) in
the amount of $6,000.00 times the appropriate percentage for the
year. The survival of the minimum credit has nothing to do with
assisting the taxpayer supporting a dependent person. It survives
because where a claim is made under 118(1)(b), no claim
can be made under 118(1)(c) (not set out
above). That is, but for the claim under 118(1)(b), the
taxpayer would be entitled to the same minimum credit under
118(1)(c) as a so-called "single status"
taxpayer. Accordingly, the dependency portion of the
118(1)(b) credit is self-monitoring. The first dollars
earned over $500.00 reduce the credit available in respect of the
dependent and it is phased out completely when the
dependent's income for the year reaches $5,500.00.
Effectively, the section deems persons with income in excess of
$5,499.00 as not being, at any time in the year, dependent for
support on the relative with whom they are living regardless of
the support that the supporting relative actually provides. This
confirms that the "support" referred to in this
paragraph must be taken to mean economic or
financial support. Conversely, the provision recognizes
the reality that persons earning less than $5,500.00 per year
will likely be "wholly dependent" on someone else at
some time in the year unless they have access to capital
(which has not been asserted in this case). The inference of the
provision, drawn from its express language that the dependency be
"at any time in the year", is that if the income earned
in the year cannot be expected to provide self-sufficiency for
the entire year, the person will be wholly dependent for support
for some part of the year. Seen in this way, I suggest, as well,
that the idea of being "wholly dependent" does not
speak to the degree of dependency at all. The degree of
dependency issue is, as stated, self-monitoring. The reason for
the "wholly dependent" requirement is to prevent the
credit where support is provided wholly or in part by a person or
agency other than the person claiming to be the sole supporter.
This view is supported by a number of older cases where outside
support resulted in a finding that a dependent person was not
"dependent" on the particular person claiming the
credit (or the deduction as it then was) who also provided
support.
[35] The
amendment to the Act that added the word
"wholly" should not be taken as raising the required
degree of dependence to complete dependency or if it does, then,
as noted above, the focus must be "at any time in the
year". Only with such construction or focus can the
dependency requirement be compatible with the allowance for
income to be earned by the dependent person.
[36] Neither the
frailty bar that must be reached nor the evidentiary bar to
establish it have been set very high in terms of the personal
credit provisions. This, in my view, does not create an
intolerable problem destined to frustrate the intention of
Parliament. Paragraph 118(1)(b) does not appear to be
as readily labelled a social assistance provision as subsection
118.2(1). Where social assistance to the medically handicapped or
to those who care for them is the object of the provision, the
bar is clearly and expressly raised. Not so in paragraph
118(1)(b). Such credits are simply part of a progressive
tax system recognizing that the ability to pay tax is affected by
the number of people in the household. We do not count adult
children in this progressive model unless they are at some time
in the year wholly dependent, on the family member claiming the
credit, by reason of diminished health (as opposed to sheer
laziness or a lifestyle choice).
[37] Before
turning to the meaning of "infirmity", I return to my
earlier comments that the Act in using the term does not
require that we know the cause of the condition. While I
appreciate that the Respondent wants to know what caused the
infirmity in order to better distinguish valid claims from those
that might be viewed with suspicion, the Act imposes no
such requirement. While infirmity will normally result from a
diagnosable medical condition or a readily identifiable state of
being such as old age that explains why a person is frail or
sickly or not physically strong (weak), the Act does not
require us to know the explanation. The subject provision of the
Act is more easily administered where a medical condition
is evident or attested to by a physician but again the Act
does not require knowledge or understanding of the cause of the
infirmity. The issue is not the reason for the infirmity. The
issue is only whether the dependency results from infirmity
according to its common meaning.
[38] This is the
contextual background to giving meaning to the word
"infirmity" as used in paragraph 118(1)(b). In
this context, it seems the meaning ascribed in Diaz is
totally acceptable and appropriate. "Infirmity" is a
state of poor health or deteriorated vitality. To this I would
add, as elaborated on below, the word "abnormally". The
dependent person credit is available in respect of an adult child
living at home and dependent for support by virtue of abnormally
poor health or deteriorated vitality. This captures all but a
small element of the various dictionary meanings of the word
"infirmity" and is consistent with the scheme of the
Act. A missing element relates to moral weakness which I
take, in this context, to mean "lacking in will" or
"irresolute". This can perhaps describe a despondency
that may be grounded in mental or emotional problems. While the
support afforded Maureen by her mother may have helped foster an
irresolute state (in terms of trying to be self-sufficient) that
contributed to Maureen's dependency, there is no basis in the
case at bar to suggest her dependency was the result of mental or
emotional problems. Accordingly, that aspect of the definition of
"infirmity" need not be considered. However, whether
the issue is physical or mental infirmity, the cause of the
infirmity should not be seen as the issue although inevitably
some explanation may be sought. This leads me to suggest another
possible definition equally acceptable and appropriate in my view
but it goes further in that it does look to the cause of the
infirmity save in a very general way.
[39] In
Tomlinson v. Prudential Insurance Co., an insurance law case,
Laidlaw J.A., of the Ontario Court of Appeal, held
that:
... the
word "infirmity" must be taken in its ordinary sense to
mean physical weakness, debility, frailty or feebleness of body
resulting from constitutional defect.
[40] The reason
that I am attracted to this definition is its reference to
"constitutional defect". A person's
"constitution", physical and mental, is lay parlance
for the whole of a person's health and vitality. It is the
indefinable source of strength the diminishment of which does not
beg to be explained by a diagnosable medical condition. Where
there is no medical condition or state that explains the
infirmity, the infirmity might be generally attributed to a
constitutional weakness. In lay terms a "sickly" person
might described as suffering a weak constitution. Such a person
can, in my view, be properly described as infirm in the context
of the subject provision of the Act.
[41] Having
regard to such definitions, I find nothing in the Act to
support the Respondent's contention that Parliament considers
"infirmity", as used in paragraph 118(1)(b), to
be akin to or aligned with "disability". The
Economic Statement referred to above is meagre support at
best for such an alignment. While I agree that infirmity is meant
to describe an abnormal state of health or well-being, it is not,
in the context of paragraph 118(1)(b), akin to a
disability. On the other hand, in that I agree that
"infirmity" describes an abnormal state of health, the
Respondent is correct in its view that general malaise or simple
frailty resulting in occasional, temporary illness would not
normally constitute an infirmity. There must be a degree of
severity or persistence of health problems or deteriorated
vitality that can readily be said to be abnormal. Further, there
must be a causal connection between the abnormal state of health
or vitality and the dependence so that a general malaise or
simple frailty that does not convincingly result in dependence,
will not meet the requirements of the subject provision. It will
always be a question of fact as to whether the severity or
duration of a poor state of health or deteriorated vitality is
such as to be reasonably considered to be the cause of the
dependence. The question is whether there is actual dependence
for economic support at any time in the year by reason of
abnormally poor health or deteriorated vitality. In context, this
is a more appropriate question than "is the infirmity so
severe and prolonged as to disable a person from being
self-sufficient?".
[42] Bringing
the facts of the case at bar into this analysis, I am satisfied
that there is sufficient truth to the testimony of the three
witnesses heard at trial that Maureen was suffering abnormal
fatigue and was prone to a variety of ailments. I find that it is
unlikely that her breathing problems or fatigue were imaginary or
exaggerated. I accept that during the subject years she was
wholly dependent for support on the Appellant by reason of poor
health and deteriorated vitality. While I have personal
reservations as to whether the sheltered existence afforded
Maureen by her family is in her best interest, given my distinct
impression that Maureen is capable of more, I do not think that
the subject provision invites me to impose my impressions of her
potential as being determinative of whether or not she meets the
requirements of the Act. That she is intellectually
capable is not determinative of her actual dependence resulting
from her physical infirmity. Her dependency and the
Appellant's support are real and the reason she has been
economically dependent is clearly poor health and deteriorated
vitality beyond any standard of normalcy that might reasonably be
devised.
[43] For these
reasons the appeals are allowed, with costs.
Signed at
Ottawa, Canada, this 19th day of November 2002.
J.T.C.C.
COURT FILE
NO.:
1999-4876(IT)G
STYLE OF
CAUSE:
Doris Mahoney and
Her Majesty the Queen
PLACE OF
HEARING:
Winnipeg, Manitoba
DATE OF
HEARING:
March 26, 2002
REASONS FOR
JUDGMENT BY: The Honourable Judge J.E.
Hershfield
DATE OF
JUDGMENT:
November 19, 2002
APPEARANCES:
For the
Appellant:
The Appellant herself
Counsel
for the
Respondent:
Tracy Harwood-Jones
COUNSEL OF
RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
COURT FILE
NO.:
2000-2842(IT)G
STYLE OF
CAUSE:
Doris Mahoney and
Her Majesty the Queen
PLACE OF
HEARING:
Winnipeg, Manitoba
DATE OF
HEARING:
March 26, 2002
REASONS FOR
JUDGMENT BY: The Honourable Judge J.E.
Hershfield
DATE OF
JUDGMENT:
November 19, 2002
APPEARANCES:
For the
Appellant:
The Appellant herself
Counsel
for the
Respondent:
Tracy Harwood-Jones
COUNSEL OF
RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
1999-4876(IT)G
BETWEEN:
DORIS
MAHONEY,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Appeals
heard on common evidence with the appeals of Doris Mahoney
(2000-2842(IT)G) on March 26, 2002 at Winnipeg, Manitoba,
by
the
Honourable Judge J.E. Hershfield
Appearances
For the
Appellant:
The Appellant herself
Counsel
for the
Respondent:
Tracey Harwood-Jones
JUDGMENT
The appeals from the assessments made under the Income Tax
Act for the 1994, 1995 and 1996 taxation year are allowed,
with costs, for the reasons set out in the attached Reasons for
Judgment and the assessments are referred back to the Minister of
National Revenue for reconsideration and reassessment.
Signed at
Ottawa, Canada, this 19th day of November 2002.
J.T.C.C.
2000-2842(IT)G
BETWEEN:
DORIS
MAHONEY,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Appeals
heard on common evidence with the appeals of Doris Mahoney
(1999-4876(IT)G) on March 26, 2002 at Winnipeg, Manitoba,
by
the
Honourable Judge J.E. Hershfield
Appearances
For the
Appellant:
The Appellant herself
Counsel
for the
Respondent:
Tracey Harwood-Jones
JUDGMENT
The appeals from the assessments made under the Income Tax
Act for the 1997 and 1998 taxation year are allowed, with
costs, for the reasons set out in the attached Reasons for
Judgment and the assessments are referred back to the Minister of
National Revenue for reconsideration and reassessment.
Signed at
Ottawa, Canada, this 19th day of November 2002.
J.T.C.C.
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