Date:
20020813
Docket:
2001-2693-IT-I
BETWEEN:
JOHN E.
CONNOLLY,
Appellant,
and
HER MAJESTY THE
QUEEN,
Respondent.
____________________________________________________________________
For the Appellant: The
Appellant himself
Counsel for the
Respondent: Ms. Christa MacKinnon
____________________________________________________________________
Reasons for
Judgment
(delivered orally from
the Bench
on April 18, 2002 at
Halifax, Nova Scotia)
GARON,
C.J.T.C.C.
[1] These are appeals from income tax
assessments for the 1998, 1999 and 2000 taxation years. By the
reassessments for the three years in question, the Appellant was
not granted the disability tax credit, either because this credit
was denied to him or because he did not claim it in his return of
income.
[2] The Appellant was the sole witness
at the hearing of his appeals.
[3] The Appellant worked for a number
of years for Canada Post Corporation. He was a letter carrier. As
a result of his work as a letter carrier, the Appellant testified
that he suffered a back injury in 1992 from which he has not yet
recovered. His condition is chronic.
[4] With respect to the back injury, I
should mention that the Appellant has been involved for many
years in a lawsuit with his former employer. This litigation
started in 1995. He had initially retained the services of a
lawyer in connection with this litigation, but later on had to
continue the legal proceedings without the assistance of counsel
because he could not afford the resulting expenditure.
[5] The Appellant suffered a major
depression in 1998. Because of this, he stated that he did not
file a notice of objection in respect of the assessment of the
Minister of National Revenue for that year. He recognized
however, that at the time he should have filed a notice of
objection in respect of the 1998 assessment, probably some time
in the fall of 1999, his condition had improved to some extent.
Also, he did not apply for an extension of time for filing a
notice of objection.
[6] In the course of his testimony, the
Appellant filed two letters with the Court. The first letter
dated May 21, 1998, addressed to Dr. Lyons from Joy Moore of
the Portland Physiotherapy Clinic of Dartmouth, Nova Scotia. The
second letter dated September 2, 1999, addressed "To whom it
may concern," is from Dr. Nigel P. Allison, a
psychiatrist.
[7] In the letter from the
physiotherapist, it is stated that the Appellant was
"referred to physiotherapy after his symptoms had plateaued
with rest and limited activity". The physiotherapist
mentioned, among other things, that the Appellant had made
progress throughout his program but added in the concluding
paragraph of his discharge report the following:
Unfortunately for John his coverage was terminated prior to
the completion of his program and arrangements could not be made
for him to ease back to work. It was recommended that John
continue a regular exercise program for maintenance of his back
pain.
[8] The second letter from the
psychiatrist, contains certain observations which are worth
noting. The first paragraph of this letter reads thus:
Mr. John
Connolly has been an office patient of mine since April 1999,
when he was referred by his family physician for ongoing
evaluation of depressive illness. His depression has improved to
a significant extent with medication but it was clear that he had
suffered from a Major Depression in the recent past.
[9] The last paragraph of the
psychiatrist's letter is hereinafter reproduced:
While he
does not have any consistent clear-cut features of an ongoing
depression, there is a strong risk of relapse with this illness,
particularly in view of the other environmental stresses. At the
same time he is clearly in a great deal of discomfort with his
back injury and is cognitively preoccupied with ongoing issues
with his employer. In my opinion, together these issues render
him currently disabled for any form of work and I have strongly
recommended that he never return to his previous
employer.
[10]
A letter dated June 23, 2000 from Canada Post Corporation was
also put in evidence. It shows that the Appellant was released
for incapacity by Canada Post Corporation, effective August 18,
2000.
[11]
With regard to his condition during the years in issue, the
Appellant stated he could not walk for more than 10 or 15 minutes
without stopping for a rest. He also said that he experienced a
fair amount of discomfort in dressing himself. He also deposed
that during the years in issue he had a total loss of focus. In
all his thoughts, he was preoccupied with the litigation with
Canada Post Corporation and with the manner he was treated by the
latter corporation between 1993 and 1998. He recognized, however,
that during the relevant period he was able to drive a car. He
could "take money out of the bank using an interac card. He
could prepare a snack."
[12]
The general question is whether the Appellant is entitled to the
tax credit for mental or physical impairment.
[13]
The requirements for the entitlement to this credit are set out
in section 118.3 of the Income Tax Act. A taxpayer is
entitled to this credit if he has a severe and prolonged mental
or physical impairment to the extent that his ability to perform
the basic activities of daily living is markedly restricted. The
expression "basic activities of daily living" is
defined in section 118.4 of the Income Tax Act. Section
118.3 of the Income Tax Act also imposes the requirement
that the impairment is certified by a medical doctor or other
professional, according to the nature of the impairment, to be a
severe and prolonged mental or physical impairment, the effects
of which are such that the individual's ability to perform
the basic activities of daily living is markedly restricted. The
certificate in question must be filed for each taxation year in
respect of which the tax credit is claimed. Unfortunately, in the
present case, the Appellant has not filed such certificate for
any of the three years in issue. In this connection, it has been
held in the case of Partanen v. R., [1998] 2 C.T.C. 2941,
that the filing of a certificate is a prerequisite for obtaining
the tax credit established by section 118.3 of the Income Tax
Act. The decision of my colleague, Judge Lamarre Proulx, has
been confirmed by the Federal Court of Appeal ([1999] 3 C.T.C.
79).
[14]
In any event, even if the certificates had been filed for the
three taxation years in issue, I doubt that the Appellant could
have established that his ability to perceive, think and remember
and to walk was restricted to the extent required by the
Income Tax Act and the case law. In saying this, I am not
suggesting that the Appellant's condition was not a serious
one. However, it must be emphasized that the threshold for the
entitlement to this tax credit established by the Act is
high.
[15]
In addition, in the case of the appeal from the assessment for
the 1998 taxation year, the Appellant has not filed a notice of
objection. This is an essential requirement that must be met
prior to instituting an appeal, as provided by section 169 of the
Income Tax Act.
[16]
For these reasons, I am constrained to dismiss the appeals from
the assessments for the 1998, 1999 and 2000 taxation
years.
Signed at Ottawa, Canada,
this 13th day of August 2002.
C.J.T.C.C.
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