Date: 20020211
Docket: 2001-1963-IT-I
BETWEEN:
DOUG GRIFFETH,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Counsel for the Appellant: Tracey D.
Beaudoin
Counsel for the Respondent: Mark Heseltine
____________________________________________________________________
Reasons for Judgment
(Delivered orally from the bench on
January 11, 2002, at Edmonton,
Alberta)
McArthur J.
[1] The Appellant appeals from an
assessment by the Minister of National Revenue for the 1999
taxation year, denying him a disability tax credit under section
118.3 of the Income Tax Act on the basis that the
Appellant was not markedly restricted in his ability to perform a
basic activity of daily living. The activity in issue in this
appeal is "hearing" as defined in section 118.4 of the
Act.
[2] In 1999, the Appellant was left
permanently deaf in his left ear after surgery to remove a tumor.
Dr. Richard Wiznura who signed the requisite disability tax
credit certificate testified at length on behalf of the
Appellant. There is no doubt that the Appellant has 100% hearing
loss in his left ear and that loss cannot be assisted with a
hearing aid or other device. His hearing in the right ear is
normal and his overall physical condition appears excellent.
Dr. Wiznura concluded that the impairment is severe enough
to restrict his basic activity of daily living within the meaning
of the Act. The doctor admitted in cross-examination
that the Appellant's left ear deafness did not interfere
with the Appellant's hearing in a doctor/patient
conversation in the setting of a doctor's office. The
doctor's conclusion that the hearing loss which impaired
the Appellant's ability to work as a consultant was based on
what the Appellant told him and not on the doctor's
personal observations.
[3] In completing the disability tax
credit certificate, Dr. Wiznura replied to the question: Is your
patient able to hear so as to understand a spoken conversation,
in a quiet setting, using an aid if necessary? by ticking off the
word "No". During his testimony, the doctor stated he
was referring to the deaf ear only. I do not consider the
certificate conclusive.
[4] The Appellant also testified. He
was represented by able counsel. His testimony was honest.
Observing the Appellant throughout the examination in chief,
cross-examination and re-direct, he appeared to hear normally. To
accommodate him, he used the witness box to my right, directing
his right ear to the examiners. He impressed me as a highly
intelligent and able 45-year old. I believe he is a software
consultant with SAP Canada Limited. He is married with children
and appears to live an active normal life. He had no apparent
difficulty in hearing and carrying on a normal conversation in
the courtroom setting. The tone of voices was normal. During the
30 or 40 minutes in which he testified, I do not recall one
instance when he did not immediately hear the question put to
him.
[5] The hearing test in section 118.4
is "... hearing so as to understand, in a quiet
setting, another person familiar with the
individual...". I find that the Appellant passes this
test. His hearing defect does not impede him from enjoying
movies, television with his family, restaurants with friends,
driving the car or competing in the work force, although he does
suffer from some inconveniences and some difficulties.
[6] In his lengthy Notice of Appeal,
the Appellant stated in part:
I contend that the qualifying parameters "so as to
understand, in a quiet setting, another person familiar with the
individual" used to define hearing as a basic activity of
daily living as outlined in 118.4(1)(c)(iv) above are
invalid and that it is the basic, unqualified, act of hearing
that constitutes the basic activity of daily living.
The basis for the definition relies on a social activity, a
conversation between individuals. As stated in 118.4(1)(d)
above, social activity is not considered a basic activity of
daily living. This presents a contradiction in that an activity
that is not accepted as a basic activity of daily living is used
to define a basic activity of daily living. I believe this
contradiction invalidates the qualifying parameter "so as
to understand, in a quiet setting, another person familiar with
the individual" from being used in the definition of
hearing as a basic activity of daily living. As a result, it is
the basic, unqualified, act of hearing that constitutes the basic
activity of daily living.
...
I contend that I take significantly more time to hear than
would be taken by an average person not afflicted by the
impairment.
It is a matter of fact that impaired hearing reduces a
person's ability to recognize spoken words. Two significant
impacts result from this restriction. First, I must expend a
significant amount of time and energy focussing on the words
spoken to me and, on a highly frequent basis, either repeat what
I heard back to the individual or ask the individual to repeat
themselves for clarification. Thus, it takes me significantly
more time to hear than would be taken by an average person not
afflicted by the impairment. Second, on frequent occasion, I
misunderstand an individual because I "hear"
different words than what were spoken to me. Later, if at all,
when it comes to light that I did not correctly understand, time
must be taken to correct the misunderstanding, thus taking me
significantly more time to hear than would be taken by an average
person not afflicted by the impairment.
Another factor that is involved with a hearing impairment such
as mine is directional "blindness". Because I have no
hearing on my left side, I can not distinguish sounds originating
from that direction. Two significant impacts result from this
restriction. First, I must constantly be aware of my surroundings
and check if I am being spoken to. If I notice someone is trying
to speak to me, I must ask the individual to repeat themselves,
thus taking me significantly more time to hear than would be
taken by an average person not afflicted by the impairment.
Second, on frequent occasion, I do not notice people trying to
speak to me. In this situation, the person must get my attention
and then repeat himself or herself, thus taking me significantly
more time to hear than would be taken by an average person not
afflicted by the impairment.
According to Interpretation Bulletin IT-519R2 - Medical
Expense and Disability, "disabling ailments and conditions
must generally be considered on a case-by-case basis, since it is
the effect of the impairment on the ability to perform the
activities of daily living, which effect differs between
individuals, rather than the ailment or condition itself, which
determines whether an individual is eligible for the disability
tax credit." I contend that there is no objective manner in
which to assess the effect of my hearing impairment on my ability
to perform this basic activity of daily living. This claim is
substantiated by my Clinical Audiologist (see enclosed letter).
Without an objective manner on which to base an assessment of the
effect of my hearing impairment on my ability to perform this
basic activity of daily living, I believe consideration as to my
eligibility for the tax credit must be based solely on whether I
meet the criteria as outlined under paragraph 118.4(1)(b)
of the Income Tax Act.
Based on the arguments stated above, I am asking the Tax Court
of Canada to reconsider my 1999 income tax assessment and allow
my claim for the Disability Tax Credit.
[7] The Appellant stated that his
greatest hearing difficulties were in work situations being in
open concept cubicle offices where he spends most of his working
time. The peripheral noise causes him difficulty in hearing and
he has to position himself favouring his right side to carry on a
conversation without asking one to repeat. If the sound or
conversation is directed at his left side he has to change
position or have it repeated. He can hear the television, but
often only at a louder level than is comfortable for his family.
He can hear his door bell, but not as easily as he could with two
good ears. As a passenger in an automobile he has to turn his
head to the speaker. Because of his impairment he sometimes, if
not often, misses or misinterprets words.
[8] His salary has shown a steady rise
over the years. In 1997, he earned $92,000, $108,000 in 1998,
$115,000 in 1999, the year of his operation, and $125,000 in
2000. He incurs no expenses as a direct result of his impairment.
This fact is probably the deciding factor in my decision to
disallow the appeal.
[9] These are difficult cases and the
line must be drawn somewhere. Both parties referred me to the
decision of the Federal Court of Appeal in Johnston v. The
Queen, 98 DTC 6169. Counsel for the Appellant referred to
that case as the watershed or turning point in these cases and I
agree with that comment. Letourneau J. stated at page 6171 and
6172:
The purpose of sections 118.3 and 118.4 is not to indemnify a
person who suffers from a severe and prolonged mental or physical
impairment, but to financially assist him or her in bearing the
additional costs of living and working generated by the
impairment. As Bowman, T.C.J. wrote in Radage v. The Queen
at page 2528:
The legislative intent appears to be to provide a modest
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 every one 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.
...
No definition has been given of what constitutes an inordinate
amount of time in the performance of the basic activities of
daily living. In my view the expression ‘inordinate amount
of time' refers to an excessive amount of time, that is to
say one much longer than what is usually required by normal
people. It requires a marked departure from normality.
In the present instance, I do not find a marked departure from
the normality that Judge Bowman refers to.
[10] Appellant's counsel also referred
me to several other cases which I have reviewed. While I agree
disability cases should be viewed with compassion, the evidence
falls far short of establishing that the Appellant does not
understand, in a quiet setting, another person familiar with the
individual. He may not understand when spoken to on his left
side, but that is not the test the legislature has set out.
[11] I find the present facts somewhat
similar to those before Campbell J. of this Court, in the case of
Ewen v. The Queen, 2000 T.C.J. No. 845, which was provided
to me by counsel for the Respondent. In Ewen, the
Appellant was legally blind in her right eye and her left eye had
a mild impairment. Campbell J. stated:
... From the evidence, however, this did not appear to
interfere with her ability to continue working.
...
The Appellant appears to be able to continue functioning in
her basic activities of daily living while enduring eyestrain,
headaches, etc., and the inconvenience of not being able to drive
at night.
... she is not blind in the ordinary sense of the word.
Certainly the quality of life of the Appellant may have been
affected, but I am unable to do other than dismiss her appeal as
she does not fall within the intent of the legislation.
I agree with Judge Campbell's reasoning and apply it to
the present case.
[12] The appeal is dismissed.
Signed at Ottawa, Canada, this 11th day of February, 2002.
J.T.C.C.
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