Date:
20021009
Docket:
2002-791-IT-I
BETWEEN:
KATHERINE
LYNN WEAR,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Reasons
for judgment
Miller
J.
[1]
Until 1995 Ms. Wear, the Appellant, was a gainfully employed
member of society. In that year, she had the first of a series of
five surgeries to remove tumours behind her eye. She is legally
blind in one eye and barely able to function in many aspects of
her life. She claimed a disability tax credit for 1999 and 2000,
though provided no physician's certificate in support.
Indeed, the Respondent presented four negative doctor's
certificates. The issue in these appeals under the informal
procedure is whether Ms. Wear qualifies for the disability tax
credit in 1999 and 2000.
[2]
Ms. Wear experienced her first blackout in 1995 while at work.
She had to have surgery at that point to remove a meningioma in
her head. She has required four subsequent operations: one in
1998, two in 1999 and one in 2000, due to recurrent growths. She
has had over 30 bouts of radiation to eradicate the problem. She
is legally blind in one eye and must wear sunglasses. She reads
with a magnifying glass. She is heavily medicated, relying on the
drug Dilatin to prevent grand mal seizures, though this has
limited success, as she continues to experience seizures as
recently as in June and July of this year. She remains constantly
tired due to her medication. She describes every day as a
challenge, suffering from daily headaches and pain. She requires
time to think of what she needs to say, and she suffers memory
loss. She also complains of some hearing loss. The radiation has
led to difficulties with tooth decay. She must get cat scans
every six months.
[3]
Her friend, Tom Hartle, in his very emotional testimony described
Ms. Wear as being incapable of functioning. According to Mr.
Hartle, Ms. Wear takes hours to prepare a meal, three days to do
her laundry, cannot remember what she had for breakfast or even
what movie she saw the night before. He was present when she had
four seizures in a row and was advised that a fifth seizure might
have killed her. She is unable to work and barely able to look
after herself, as she needs to spend a good deal of the day
sleeping. He described her as being unable to focus for more than
five minutes.
[4]
Ms. Wear presented in Court as a fragile, confused individual
whose life has been completely upended by the onslaught of
recurring tumours.
[5]
The Respondent presented four doctors'
certificates:
(i)
Certificate of Dr. R. Nigam (ophthalmologist) dated May 24,
2001, in which she answered
yes to all the following questions:
Can your
patient see?
Can your
patient walk?
Can your
patient speak?
Can your
patient perceive, think and remember?
Can your
patient hear?
Can your
patient feed or dress himself or herself?
Can your
patient personally manage bowel and bladder functions?
Dr. Nigam
went on in the Certificate to answer yes to the question:
"Has your patient's blindness, marked restriction in a
basic activity of daily living, or need for life-sustaining
therapy lasted, or is it expected to last, for a continuous
period of at least 12 months?".
(ii)
Certificate of Dr. C. Bourque (neurologist) dated December 13,
2001 in which he likewise
answered all seven questions, yes. He did not answer the question
dealing with the duration of the impairment.
(iii)
Certificate of Dr. Williams (neurosurgeon) dated November 18,
1999 in which he indicated
the patient became markedly restricted in June 1999 and yet
indicated "not" when asked to indicate how the patient
was markedly restricted. He answered yes to all seven questions
re: vision, walking, speaking, mental functions, hearing, feeding
and dressing, and elimination. He answered no to the following
two questions:
Has the
impairment lasted, or is it expected to last, for a continuous
period of at least 12 months?
Is the
impairment severe enough to restrict the basic activity of daily
living identified above all, or almost all, the time, even with
therapy and the use of appropriate aids and
medication?
(iv)
Certificate of Dr. Nigam dated December 2, 1999 indicating the
patient became markedly restricted in December 1999, that the
marked restriction is permanent and it relates to vision. Then
Dr. Nigam only answered one question of the seven, by answering
yes to the question of whether her patient was able to
see.
[6]
Before my analysis, I wish to comment on the form of the
Certificates. The incongruities within the Certificates do not
instil a great deal of confidence that the form is appropriately
structured to obtain a fair result. The form appears to confuse
the nature of the impairment (disease, illness, physical
impairment) from the effect of the impairment (can't see,
can't walk, can't hear, etc.). The question regarding the
duration of the impairment (to determine if it is prolonged)
should go to the nature of the impairment, not the effect. It
would make sense that such question is asked first in conjunction
with the description of the impairment (example, schizophrenia,
multiple sclerosis, etc.). This would more readily reflect the
structure of section 118.3. Then the seven questions regarding
the effect of the impairment can be asked to determine if the
effect markedly restricts a basic activity of daily living. The
form asks these questions in reverse and even then
inappropriately asks the duration question in terms of the length
of the marked restriction, rather than the length of the
impairment. No wonder doctors may be confused and presumably why,
in this case, a doctor says there is no marked restriction in one
place and says the marked restriction has continued for more than
12 months in another place.
[7]
The relevant provisions of the Income Tax Act are
subsections 118.3(1) and 118.4(1) as follows:
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,
(a.2) in the case of
(i)
a sight impairment, a medical doctor or an
optometrist,
(ii)
a hearing impairment, a medical doctor or an
audiologist,
(iii)
an impairment with respect to an individual's ability in
feeding and dressing themself, 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 (i) to
(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,
(b)
the individual has filed for a taxation year with the Minister
the certificate described in paragraph (a.2),
and
(c)
...
118.4(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.
[8]
Section 118.3 of the Act lists three requirements to claim
a disability tax credit: (a) the individual must have a severe
and prolonged mental or physical impairment; (b) the effects of
the impairment are such that her ability to perform a basic
activity of daily living is markedly restricted; and (c) she must
provide a doctor's certificate certifying (a) and (b). As I
have indicated in another recent disability tax credit case, even if I find the
taxpayer has a severe and prolonged impairment, the effects of
which are such that she is blind or requires an inordinate amount
of time to perform one of the basic activities of daily living, I
must still find that a physician has certified to that effect. As
Justice Stone indicated in the case of Buchanan v. The
Queen, a recent Federal Court
of Appeal decision:
The Court
must be faithful to the words in the Income Tax Act. The
Act requires a positive certificate of a physician. That
means that the function of the Tax Court judge is not to
substitute his or her opinion for that of a physician, but to
determine, based on medical evidence, whether a negative
certificate should be treated as a positive
certificate.
[9]
While it is difficult not to have a great deal of sympathy for
Ms. Wear, I am not prepared to displace four doctors'
certificates with my own observation of Ms. Wear's appearance
during her testimony. There must be something more concrete about
the unreliability of a doctor's certificate than simply Ms.
Wear's testimony that the doctors were wrong. I may be
satisfied on the basis of her testimony and that of Mr. Hartle,
that she does indeed have a prolonged impairment, the effect of
which markedly restricts basic activities of daily living. This
meets the first two conditions of the legislation. I do not,
however, have a doctor's certificate that meets the third
condition; indeed, I have four certificates that go quite
contrary to Ms. Wear's explanation of the effect of her
impairment. Some of the certificates seem to suggest that there
is indeed a prolonged impairment but none of them indicate that
the effect of the impairment represents a marked restriction on a
basic activity of daily living.
[10] I am not a
physician: I have not observed Ms. Wear over a period of time. To
find that all four physicians' certificates, which were
consistently answered in the negative, with respect to the marked
restriction on a basic activity of daily living, can be
interpreted as being positive certificates would require at the
very least some evidence from one of the physicians as to why he
or she completed the certificate as they did. If, as in the
Buchanan case, there was proof of an underlying
misunderstanding, or if there was shown to be some bias, or if
there was an admission that the physician had indeed erred, then
I might be in a position to interpret a negative certificate as
positive. I have none of such evidence before me.
[11] Certainly
there are some minor ambiguities in the certificates, arising
more by the form of the certificate, as I have previously
mentioned, but there is certainly no inconsistency in the answers
to the seven questions dealing with the effect of the impairment.
None of the certificates indicate that she is blind or cannot
walk, speak, think, perceive, remember, hear, feed herself, dress
herself or control or manage bowel and bladder function. Yet, she
clearly has a serious condition; it is debilitating and it
affects not just one but all of the above functions. As each of
these functions is addressed individually in the legislation, and
consequently in the requisite certificates, there is no
opportunity for a physician to address a cumulative effect. The
legislation simply does not contemplate that.
[12] I am
satisfied Ms. Wear is disabled due to the recurring growth
of tumours in her head. She has been unable though to obtain a
medical certificate attesting that the effect of that disability
is so grave that it qualified her for the disability tax credit.
As I do not have any evidence to interpret the doctors'
certificates as positive, rather than negative, I must dismiss
Ms. Wear's appeals. I have raised this before and I raise it
again: the form of certificate required to be signed by a
physician can stand some improvement.
[13] The appeals
are dismissed.
Signed at
Ottawa, Canada, this 9th day of October, 2002.
J.T.C.C.
COURT FILE
NO.:
2002-791(IT)I
STYLE OF
CAUSE:
Katherine Lynn Wear and
Her Majesty the Queen
PLACE OF
HEARING:
Winnipeg, Manitoba
DATE OF
HEARING:
September 30, 2002
REASONS FOR
JUDGMENT BY: The Honourable Judge
Campbell J. Miller
DATE OF
JUDGMENT:
October 9, 2002
APPEARANCES:
For the
Appellant:
The Appellant herself
Counsel
for the
Respondent:
Michael Van Dam
COUNSEL OF
RECORD:
For the
Appellant:
Name:
N/A
Firm:
N/A
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2002-791(IT)I
BETWEEN:
KATHERINE
LYNN WEAR,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Appeals
heard on September 30, 2002, at Winnipeg, Manitoba, by
the
Honourable Judge Campbell J. Miller
Appearances
For the
Appellant:
The Appellant herself
Counsel
for the
Respondent:
Michael Van Dam
JUDGMENT
The appeals from the assessment of tax made under the Income
Tax Act for the 1999 and 2000 taxation years are
dismissed.
Signed at
Ottawa, Canada, this 9th day of October, 2002
J.T.C.C.
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