Brown v. The Queen, docket 2001-1176-IT-I (Informal Procedure)

Date: 20020419

Docket: 2001-1176-IT-I

BETWEEN:

TERRANCE BROWN,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasonsfor Judgment

Miller, J.T.C.C.

[1]            Mr. Terrance Brown appeals by way of informal procedure the taxation years 1983 to 2001 inclusive, seeking a disability deduction for the years 1983 to 1987 and a tax credit in respect of a disability, for the years 1988 to 2001.

[2]            Mr. Brown suffered a brain injury as a result of an accident in September 1975, at the age of 10. He was unconscious for approximately eight weeks following the accident. It was not, however, until 1999 that Mr. Brown started receiving Canada Pension Plan disability benefits, as he indicated he was not aware until that time that he could obtain such benefits. Similarly, he did not apply for the disability deduction or tax credit for the relevant years until June of 2000, by filing a Notice of Objection for the years 1983 to 1998.

[3]            Mr. Brown described his childhood and young adulthood as a time of knowing he was different and that something was wrong with him, but not knowing why. He was able to get through grade 12 and, for a time, obtained employment as a health care aide, though he has since been laid off. As a health care aide, he worked with a brain injured individual. It appears that this experience triggered in him the realisation of his own difficulties. This led him down two paths; first, to attend physicians for medical assistance, and second to look for financial support from the government.

[4]            Mr. Brown lives on his own as, according to his sister, he was forced to. No one appreciated the severity of his brain injury until Mr. Brown took it upon himself to investigate his limitations. He appears to have been left very much to fend for himself throughout his young adulthood.

[5]            Mr. Brown described his ability to remember and to perceive as limited. He professes getting easily sidetracked, having great difficulty with organisation and very quickly becoming frustrated. He likes to listen to music and "go to the bush". He indicated he has been playing the guitar for 23 years, yet upon questioning acknowledged that he only knows part of three or four songs.

[6]            Once Mr. Brown sought medical assistance, he was prescribed medication. Unfortunately, he found that it made him drowsy so that he stopped taking it. He takes no prescribed drugs, though he regularly smokes marijuana to, as he put it, help him think. He summed up his condition as follows: "my frontal lobe is messed up and it is the keyboard to the brain".

[7]            Turning to the specialists' analysis of Mr. Brown, I will refer to three relevant reports, which were introduced as evidence, notwithstanding the specialists themselves did not appear. First, the Disability Tax Credit Certificate, signed by Dr. Strobele, dated February 27, 1998, indicated "No" to the question, "Is your patient able to think, perceive and remember, using medication or therapy if necessary?" Dr. Strobele answered "Yes" to question number 9, which reads, "Is the impairment severe enough to restrict the basic activity of daily living identified above, all or almost all the time, even with the use of appropriate aids, devices, medication, or therapy?"

[8]            Subsequent to Dr. Strobele's certificate, Dr. Strobele received in November 1998, a report from Dr. Van Reekum in which Dr. Van Reekum indicated:

...

Neuropsychological evaluation done on September 30, 1998 under Dr. Fulton's supervision showed that his IQ was normal. He had neuropsychological deficits consistent with right frontal injury, including left hand kinesthetic - motor learning impairment, left side weakness, slowness and reduced dexterity, reduced information processing, and severe short-term memory impairment. ...

He further indicated:

...

In summary, Terry has had a traumatic brain injury at age 10 as well as multiple musculoskeletal injuries. He was not aware of this until recently. It has however caused him cognitive deficits, chronic pain, disinhibition and affective liability. He also has a history of paternal alcohol abuse and dependence, and Terry was physically and emotionally abused by his father. The recent increased awareness in terms of his history and the impact of his injuries is helpful in helping Terry now to begin to seek rehabilitation and compensation, but is also distressing to him. He has had multiple losses and is becoming more aware of this. He is very angry with the system and the lack of rehabilitation and support. I feel that his anger and frustration is quite appropriate, as he truly did "fall into a crack". He also has social phobia, probably related to poor social skills and lack of social contact, and gets panic attacks in crowded places. He has suffered greatly and is clearly significantly handicapped.

[9]            Finally, the report of Linda McGovern, Psychometrist and W.A. Fulton, Psychologist, following a test of Mr. Brown in September 1998, indicated in part:

In summary, the results of the current examination revealed several areas of deficit on measures of cognitive/memory and psychomotor functioning. Specifically, the pattern of results is consistent with a right frontal injury to the brain. Contributing to this pattern were difficulties with memory, distractibility and executive functioning. Specifically, Mr. Brown demonstrates difficulties with planning and sequencing, initiating, divergent thinking, and non-verbal learning/problem-solving. In comparison, his general intellectual/academic levels remain at expected levels. Given the deficits described above, his "access" to his otherwise intact intellectual skills is limited, particularly in novel situations that require adaptation to incoming information. Given that his verbal and conversational skills remain relatively intact, Mr. Brown's cognitive deficits will not always be apparent to those who interact with him.

Given the extent of Mr. Brown's neurocognitive deficits, it is felt that he would not be capable of resuming any type of competitive employment initiative in his present state. Given that over twenty years have passed since his injury, his deficits are certainly considered permanent in nature. He may be able to function adequately in a supported, supervised, or sheltered setting, but would not be able to engage in competitive employment initiatives in light of his memory and neuropsychological impairments.

[10]          Notwithstanding these significant deficiencies, Mr. Brown has achieved some limited degree of independence; as he put it, "everything I have, I have done myself".

[11]          Mr. Brown's demeanour on the stand was that of an honest but oft times confused individual. He had difficulties following the documents, would lose his train of thought and forget what he was about to say.

[12]          The Respondent referred to a comment of Dr. Fulton in a letter of January 12, 2001:

... While Mr. Brown's capacity to perceive and remember are clearly quite impaired from a neuropsychological viewpoint, he does not meet the definition standard in that it could not be honestly stated that he is unable to "manage or initiate personal care without constant supervision". Nonetheless, Mr. Brown certainly suffers from an array of neurocognitive impairments secondary to a severe brain injury ...

[13]          With respect to the timing of the filing of objection, the chronology as taken from the Reply to the Notice of Appeal is as follows:

7.              In assessing the Appellant for the 1983 and 1984 taxation years, Notices that no tax was payable thereof dated April 26, 1984 and April 10, 1985 respectively, the Minister of National Revenue (the "Minister") did not allow a disability deduction and in assessing the Appellant for the 1985, 1986 and 1987 taxation years, Notices of Assessment thereof dated April 29, 1986, April 24, 1987 and September 26, 1988, the Minister did not allow a disability deduction.

8.              In assessing the Appellant for the 1988 through 1998 taxation years, Notices of Assessment thereof dated June 6, 1989, May 23, 1990, June 20, 1991, May 27, 1992, March 17, 1994, April 21, 1994, March 30, 1995, May 24, 1996, July 3, 1998, May 14, 1998 and May 4, 2000 respectively, the Minister did not allow a non-refundable tax credit in respect of a disability amount. In assessing the Appellant for the 1999 taxation year, Notice that no tax was payable thereof dated May 4, 2000, the Minister did not allow a non-refundable tax credit in respect of a disability amount and in assessing the Appellant for the 2000 taxation year, Notice of Assessment thereof dated April 6, 2001 the Minister did not allow a non-refundable tax credit in respect of a disability amount.

9.              In reassessing the Appellant for the 1989 taxation year, Notice of Reassessment thereof dated December 27, 1991, the Minister increased the Appellant's employment income and allowed credits for the Canada Pension Plan contributions, Unemployment Insurance premiums and the taxes withheld in respect of the additional employment income. No non-refundable tax credit in respect of a disability amount was allowed.

10.            In reassessing the Appellant for the 1994 taxation year, Notice of Reassessment thereof dated July 7, 1995, the Appellant was allowed non-refundable education and tuition tax credits as requested by the Appellant. No non-refundable tax credit in respect of a disability amount was requested or allowed.

11.            By Notice of Objection dated June 28, 2000, the Appellant sought to be allowed a "disability tax credit" in the 1983 through 1998 taxation years.

12.            By correspondence dated July 14, 2000, the Appellant was advised by the Appeals Division of the Summerside Taxation Centre that his Notice of Objection, referred to in paragraph 11 above, was valid for the 1998 taxation year only.

13.            By NOTIFICATION OF CONFIRMATION BY THE MINISTER dated November 28, 2000, the assessment of tax for the 1998 taxation year was confirmed.

[14]          On filing his appeal with this Court, Mr. Brown added the 1999, 2000 and 2001 years.

[15]          The Respondent submits that for the years 1983 to 1997, Mr. Brown has not filed a timely Notice of Objection and consequently, I cannot grant the relief sought for those years. With respect to 1999, the Respondent contends that no Notice of Objection has ever been filed, though he points out that no tax was payable for 1999 in any event. Regarding the appeals for 2000 and 2001, the Notices of Objection predate the assessments. I agree with the Respondent's submissions. The most recent assessment for the years 1983 to 1997 was the 1997 assessment, dated May 14, 1998. Given the Notice of Objection for this year was not filed until June 28, 2000, this was well past the time limits set forth in section 166.1 of the Income tax Act (the "Act") for seeking an extension of time from the Minister of National Revenu (the "Minister"). The Appellant is simply too late. Mr. Brown argued passionately that his brain injury prevented him from filing on a timely basis and he should not be penalized by the very deficiency he is claiming should produce some relief. Once Mr. Brown appreciated his problem, he took steps to deal with it, both medically and financially. However, his lack of awareness of his condition and lack of knowledge of the potential applicability of provisions of the Act until the late 1990s does not release the rigid timelines for filing objections and appeals as set forth in the Act. While clearly Mr. Brown feels deserving of the benefit of the disability tax credit back to when he was 18, I cannot blithely ignore the clear time restrictions. His Notice of Objection for 1983 to 1997 was too late and no extension of time was sought from the Minister within the time period set forth in section 166.1 of the Act. Appeals for 1983 to 1997 have therefore not been properly brought before me and they are quashed.

[16]          With respect to 1999, no Notice of Objection was ever filed so I likewise quash the appeal for that year. No tax was payable for 1999 in any event.

[17]          With respect to the 2000 and 2001 taxation years, Mr. Brown's Notice of Objection of June 18, 2000 preceded the assessment for these years. I do not want to do anything to preclude Mr. Brown from seeking relief for those years, so while I quash the appeals, this is not to be construed in any way as limiting Mr. Brown's right to object to the assessments for 2000 and 2001, if such assessments do not provide the treatment he believes he deserves.

[18]          The substance of Mr. Brown's appeal, the applicability of the disability tax credit, is left to be decided solely for the taxation year 1998. The disability tax credit is governed by subsection 118.3(1) of the Act, which reads in part:

118.3(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 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

(i)             a sight impairment, a medical doctor or an optometrist,

(i.1)          a speech impairment, a medical doctor or a speech-language pathologist,

(ii)            a hearing impairment, a medical doctor or an audiologist,

(iii)          an impairment with respect to an individual's ability in feeding and dressing themselves, or in walking, a medical doctor or an occupational therapist,

(iv)           an impairment with respect to an individual's ability in perceiving, thinking and remembering, a medical doctor or a psychologist, and

(v)            an impairment not referred to in any of subparagraphs 118.3(1)(a.2)(i) to 118.3(1)(a.2)(iv), a medical doctor

has certified in prescribed form that the impairment is 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 or would be markedly restricted but for therapy referred to in paragraph 118.3(1)(a.1),

(b)            the individual has filed for a taxation year with the Minister the certificate described in paragraph 118.3(1)(a.2), and

...

[19]          This must be read in conjunction with section 118.4 which reads:

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.

[20]          The Respondent did not make submissions on the applicability of these sections to Mr. Brown's situation, but left it to me to review the medical reports and results of psychological testing to determine if Mr. Brown's ability to perform the basic activities of daily living was markedly restricted. 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.

[21]          With respect to the first condition, I am satisfied from a review of the report mentioned earlier, specifically the parts already quoted, that Mr. Brown's accident resulted in a severe and certainly prolonged mental impairment. The specialists used terms such as reduced information processing, severe short term memory impairment, chronic pain, significantly handicapped, deficit certainly considered permanent in nature and neuropsychological impairments. These terms resound with the finding of both severe and prolonged mental impairment.

[22]          Turning to the third element next, was a certificate filed? Yes. A certificate was produced, signed by Dr. Strobele certifying Mr. Brown's impairment was severe enough to restrict the basic activity of thinking, perceiving and remembering. That condition is met.

[23]          The final condition requires an understanding of Mr. Brown's ability to think, perceive and remember. These concepts were thoroughly addressed by Associate Chief Judge Bowman in Radage v. The Queen, [1996] 3 C.T.C. 2510. He concluded by laying out a number of principles upon which his decision was based. The principles he suggested are as follows:

...

(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.

(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.

[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 DTC 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.

[25]          In using Associate Chief Judge Bowman's suggested meaning of perception, I am satisfied that Mr. Brown does receive and recognize data about his environment that conforms reasonably to common human experience. He would be less able to go to the bush did he not; however, his ability to perceive has some restrictions. He wished to have me address him as Brother Nature, he became agitated that counsel could not appreciate his view of the world was skewed, he displayed child like innocence at times: these behaviours all suggested to me that while aware of his surroundings and competent to give evidence, he lacked what some might call a firm grip on reality.

[26]          It is with respect to the next two elements that I find Mr. Brown exhibits such restrictions that entitle him to the credit. He struggled with some of his answers, appearing to agonize what an appropriate response might be. He could not begin to explain in any detailed way any of the documents presented to him. He could not remember at times what he was about to say. He could not take the information presented to him regarding the failure to file on a timely basis and draw any conclusion other than he still should get the credit. If this point was pushed, his reaction would veer towards anger. He had one predominant view and any line of questioning that led elsewhere would confuse and at times upset him. There appeared little possibility of Mr. Brown formulating different rational conclusions from data presented. I was struck by Dr. Fulton's comments in January 2001:

... He is not considered capable of resuming any type of competitive (for remuneration) employment. His deficits are obscured by the fact that he is able to express himself quite well verbally. However, his thought processes are quite disorganized, and he has, for the last number of years, been unable to carry out a full sequence of goal directed activities due to his brain injury and inability to sustain focused attention. ...

[27]          I find that his brain injury is of such severity that it does affect and indeed permeate his life to a degree that renders him incapable of a level of thought which would allow him to function completely independently and with reasonable competence in every day life. I find this notwithstanding a recognition that he is functioning in society, although that functioning has not been in a manner of normalcy. To his credit, he has functioned based on limited skills. He attributes it to faith.

[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.

Signed at Ottawa, Canada, this 19th day of April, 2002.

"Campbell J. Miller"

J.T.C.C.

COURT FILE NO.:                                                 2001-1176(IT)I

STYLE OF CAUSE:                                               Terrance Brown and Her Majesty the Queen

PLACE OF HEARING:                                         Hamilton, Ontario

DATE OF HEARING:                                           April 9, 2002

REASONS FOR JUDGMENT BY:      The Honourable Campbell J. Miller

DATE OF JUDGMENT:                                       April 19, 2002

APPEARANCES:

For the Appellant:                                                 The Appellant himself

Counsel for the Respondent:              James Gorham

COUNSEL OF RECORD:

For the Appellant:                

Name:                               

Firm:                 

For the Respondent:                             Morris Rosenberg

                                                                                Deputy Attorney General of Canada

                                                                                                Ottawa, Canada

2001-1176(IT)I

BETWEEN:

TERRANCE BROWN,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeals heard on April 9, 2002 at Hamilton (Ontario) by

the Honourable Judge Campbell J. Miller

Appearances

For the Appellant:                                         the Appellant himself

Counsel for the Respondent:                         James Gorham

JUDGMENT

          The purported appeals from the assessments made under the Income Tax Act (the "Act") for the 1983 to 1997, 1999, 2000 and 2001 taxation years are quashed;

          The appeal from the assessment made under the Act for the 1998 taxation is allowed, and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the Appellant is entitled to the Disability Tax Credit for the year in issue, all in accordance with the attached Reasons for Judgment.

          The Appellant is not entitled to any further relief.

Signed at Ottawa, Canada, this 19th day of April, 2002.

"Campbell J. Miller"

J.T.C.C.