Citation: 2009 TCC 162
Date: 20090429
Docket: 2008-1581(IT)I
BETWEEN:
RICHARD FONTAINE,
appellant,
and
HER MAJESTY THE QUEEN,
respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Archambault J.
[1]
Richard
Fontaine is appealing from assessments made by the Minister of National Revenue
(the Minister) in respect of the 2005 and 2006 taxation years. For both
years, the Minister disallowed Mr. Fontaine's claim for the tax credit for
mental or physical impairment. There is also a limitation period issue for the
2005 taxation year, specifically, whether the Court has jurisdiction to
entertain the appeal in view of the fact that Mr. Fontaine did not file
his notice of appeal within the time allotted by the Income Tax Act (the Act).
Facts
[2]
Mr. Fontaine's
agent admitted to all the facts set out in paragraphs 5 through 10 of the
Reply to the Notice of Appeal, with the exception of those set out in
subparagraphs 10(d) and 10(e). The admitted facts are as follows:
[translation]
5. Upon assessing the appellant on May 11,
2006, for the 2005 taxation year, and June 7, 2007, for the 2006
taxation year, the Minister of National Revenue (the Minister) disallowed
the income tax credit for severe and prolonged physical impairment claimed by
the appellant.
6. On or about June 21, 2006, the appellant
served a notice of objection on the Minister against the May 11, 2006,
assessment, in connection with the 2005 taxation year.
7. On or about June 14, 2007, the appellant served a
notice of objection on the Minister against the June 7, 2007,
assessment, in connection with the 2006 taxation year.
8. On February 14, 2007, the Minister
confirmed the notice of assessment of May 11, 2006, concerning the
2005 taxation year.
9. On March 31, 2008, the Minister confirmed the
notice of assessment of June 7, 2007, concerning the 2006 taxation
year.
10. In making and confirming the assessments in
respect of the 2005 and 2006 taxation years, the Minister relied on the same
assumptions of fact, namely:
(a) Upon filing his income tax returns for the
2005 and 2006 years, the appellant claimed the tax credit for severe and
prolonged physical impairment.
(b) The appellant has been suffering from headaches since
2001.
(c) The appellant stopped working on April 22,
2002, due to his medical problems.
[3]
Mr.
Fontaine's testimony and the numerous documents adduced in evidence have
established the other relevant facts of this appeal. Some of those facts will
only be referred to in my analysis. It would now be appropriate to address the
preliminary issue of the Court's jurisdiction with respect to the 2005 taxation
year.
The Court's jurisdiction
[4]
The
notice of assessment for the year 2005 was confirmed on
February 14, 2007. The Notice of Appeal was filed in this Court on
April 21, 2008, beyond the 90-day period contemplated in
section 169 of the Act.
[5]
There
was no application for an extension of time under section 167 of the Act.
The time for making such an application expired in mid-May 2008 under the
terms of paragraph 167(5)(a) of the Act:
167. (5) No order shall be made under this section
unless
(a) the application is made within one year
after the expiration of the time limited by section 169 for appealing;
[Emphasis added.]
[6]
Consequently,
it was too late to make an application for an extension of time at the hearing
of November
25, 2008.
The argument raised by Mr. Fontaine's agent is that the Notice of
Appeal should be considered an application for an extension. The Notice of
Appeal that was filed was based on the template provided by the Court on its
website. It does not contain an application for an extension; the contents are
limited to the notice of appeal, the grounds of the appeal, and a request to
waive a $100 filing fee. Mr. Fontaine testified that it was only when
he was preparing for his trial with the help of Université Laval law students
that he learned of the problem of the Court's jurisdiction and was made aware
that his Notice of Appeal for 2005 was not timely filed.
[7]
The
Court cannot intervene under these circumstances because the wording of
paragraph 167(5)(a) of the Act is clear. This finding is in keeping with
the decision of the Federal Court of Appeal in Minuteman Press of Canada
Company Limited v. M.N.R., 88 DTC 6278. The appeal in respect of the 2005
year must therefore be quashed on the basis that this Court lacks
jurisdiction.
Entitlement
to the credit
[8]
Though
the issue of the disallowance of the tax credit for mental or physical
impairment can only be considered insofar as it pertains to the 2006 taxation
year, I will go over certain facts that arose in 2005. I should also
specify that even if this Court had jurisdiction to hear the appeal concerning
the year 2005, it would have made no difference for Mr. Fontaine, because
he has not satisfied this Court that all the requisite conditions of his
entitlement to the credit for 2005 and 2006 were met.
[9]
I
found the expert report (Exhibit I‑1) of Dr. Roy, a neurologist,
very instructive. The report was prepared for the Régie des rentes du
Québec on January 6, 2005, following an examination of Mr. Fontaine
on January 3, 2005. The examination lasted an hour and a half.
[10]
The
relevant parts of the report read:
[translation]
HISTORY
The patient is 48 years old. He worked
as a cashier for the Secur company. He stopped working on June 27, 2003.
The patient has been seen regularly by Dr. L. Durcan, a neurologist,
since April 22, 2002.
During his initial assessment on April 22, 2002, Dr. Durcan noted that, since April 2001,
the patient had been experiencing recurrent right unilateral headaches
associated with intense lacrimation of the right eye; he noted that the
patient had daily, almost continuous headaches with some improvement on
Verapamil 120 mg three times daily. He stated that the patient was often
awakened at night by the headaches, that each headache episode lasted
one to two hours, and that there was no associated nausea or photophobia.
He stated that the patient ceased working due to the headaches, and that he was
also complaining of a generalized feeling of weakness. He stated that a
brain MRI in March 2002 was
normal, and that the patient underwent a psychiatric assessment in
January 2002, at which time no affective disorders were noted.
Dr. Durcan's clinical examination was normal in every respect. Based on
his assessment, Dr. Durcan diagnosed the patient with cluster-type
headache. His recommended treatment was a trial of Indocid 25 mg twice
daily in the event that the headache was a continuous unilateral headache. He
added that he saw no explanation for the feeling of weakness reported
by the patient. He also recommended that the treatment with Verapamil
continue.
The patient continued to be seen by Dr. Durcan, mostly at one-month
intervals.
Over time, various symptomatic and prophylactic medications were
used.
. . .
Commencing in October 2002, oxygen was used during acute
episodes.
. . .
The various treatment measures that were utilized did not result in
any sustained or significant improvement in the symptoms; there was sometimes a
partial or temporary improvement, and this even enabled the patient to return
to work from February to June 2003.
The duration of the headaches gradually increased and, as a result, Dr.
Durcan changed the diagnosis to atypical autonomic headaches.
An EMG performed on July 31, 2003, did not suggest any evidence of
carpal tunnel.
A brain CT scan on August 20, 2003, was normal.
A hepatic workup on May 2, 2003 was normal, and follow-up blood
studies on October 2, 2002, showed elevated ALT and GGT. Total cholesterol was 8.04.
. . .
Throughout the patient's evolution, Dr. Durcan always
stated that his clinical examinations were normal in every respect; at no time
did he witness any signs of autonomic dysfunction or see the patient during an
acute attack.
On September 13, 2004, Dr. Durcan submitted a medical report
to the Régie des rentes du Québec, in which he stated that the patient had been
having recurrent headaches with autonomic manifestations three times daily
and that each such headache was three to four hours in duration. He
stated that the neurological examination was normal, that the patient's hepatic
enzymes had increased and that he was being followed by gastroenterology for
that issue. He stated that the paraclinical investigation was negative and that
it included a CT scan, an MRI
and an EEG. His diagnosis was atypical autonomic headache. He
stated that the patient was taking Keppra 500 mg twice daily as treatment. He
stated that the patient was able to drive his car.
He recommended that the patient stop working, due to his 10 to 14
hours of debilitating pain per day. He stated that the patient might
eventually be able to return to his usual employment, noting that several kinds
of headache problems resolve spontaneously but that, in this patient's
particular case, there was no response to intensive treatment. He added that,
in his opinion, the patient would be unable to perform another job because his
headache problem had persisted and therefore prevented him from doing any other
work of any kind. He also stated that he had attempted all possible treatments,
and that all therapeutic measures had failed.
. . .
LIFESTYLE
The patient stopped smoking in February 2001. He does not drink alcohol.
. . .
SOCIAL HISTORY
Immediately before ceasing employment on June 27, 2003,
the patient had worked as a cashier for Secur. He had held this employment
since 1985, though he reports a first interruption of work due to headaches
from October 2001 to April 2003, and a return to work from April 2003 to
June 2003.
At the time he began working for Secur, the patient was also working
as a driving instructor.
The patient told us that he had also worked as a taxi driver,
and as a cleaner at Hôpital Saint-Luc (1979-1982) and Hôpital Pierre-Boucher
(1982).
Prior to this, he had worked in a factory shipping department and
for a vending machine business (1977).
The patient has a Secondary V education (accounting clerk program)
and took a one‑semester driving instructor course at a CEGEP.
The patient lives with his spouse. His
son has left the family home.
The patient is currently receiving long-term disability benefits.
SUBJECTIVE EXAMINATION
The patient was seen on his own. He got to his appointment on his
own by driving his car from his home in St-Lin des Laurentides.
The patient states that he continues to be under Dr.
L. Durcan's care; the most recent visit was on
November 13, 2004, and the next appointment is scheduled for
January 17, 2005.
He continues to see his family physician, Dr. L.
Villeneuve.
. . .
The patient says that the headaches in his right hemicranial
region, more specifically in the right periorbital region, began gradually in
April 2001. In addition to pain in the periphery of his right eye, the
patient complains of pain in the right paramedian region at the vertex.
Shortly after the onset of his headaches in April 2001, the patient
noticed that the headaches were associated with lacrimation in his right eye
and dripping from his right nostril.
The patient complains of constant and persistent
pain around the right eye, which he assesses as 2 to 3/10. He also has
persistent pain in the right paramedian region at the vertex; against this
backdrop of pain, there are acute episodes which occur two to three times daily,
have an intensity of 8 to 9/10, and last two to three hours each. These
more acute pain episodes do not tend to occur more frequently at any particular
time, and may occur at night during sleep. When his
pain is most intense, the patient says that he sometimes experiences nausea; he
does not vomit, he sometimes experiences phonophobia, but not really any photophobia.
He says that the intense headaches reach their peak in a few seconds, and
that he becomes impatient during these paroxysms. He says that his wife
reports that he is sometimes puffy and pale during the exacerbations of his
headaches. The patient says that, under these circumstances, he sometimes feels
right hemifacial swelling, which can even extend a few centimetres into the
left side of the face. The patient says that there is no conjunctival hyperhemia
in the right eye.
The patient says that the best position for him to adopt during his
acute headache attacks is to stand, and he feels the need to pace back and
forth in such cases. He absolutely cannot tolerate being in the
lying-down position.
The patient has not identified any factor that triggers the headache
exacerbations.
The patient says that the frequency of headache peaks has always
been the same, i.e. two to three episodes per day, but that, over time,
the duration of each of these peaks increased; in addition, the patient
says that the various treatment measures were more effective at first,
particularly oxygen, which he currently uses for 15 to 20 minutes during
each exacerbation with very mitigated success.
During today's interview, the patient reports feeling a right
hemicranial headache with an intensity of 5 to
6/10.
The patient tells us that eye, dental and ear check-ups revealed no abnormalities.
He says that he did not obtain any relief with acupuncture or
massage therapy.
He reports that taking a Keppra 500 mg tablet mitigates the
intensity of his headaches for 60 to 75 minutes.
As far as day-to-day living is concerned,
the patient says that he can walk outdoors for roughly 30 minutes once or
twice a day; he reports feeling very tired and needing to lie down
in a chaise longue upon returning from these walks. He says that he reads the
local newspapers, does not watch much television, and can listen to the radio
(at a low volume). The patient says that he is too exhausted to
maintain his garage entrance. He says that he takes two or three
rest breaks for 30 to 40 minutes each but does not fall asleep during those
breaks.
The patient says that he lives with his wife, who does not work.
The patient notes that he is able to carry out the activities of
daily living independently.
OBJECTIVE EXAMINATION
Blood pressure 120/80. Regular heart rate 108 per
minute. Right-handed. Height: 5 feet 5½ inches. Weight: 179 pounds
(verified).
The patient entered the examination room at a
regular walking pace. There is no limping or wide-based gait. The two upper
limbs are in normal balance.
Throughout the interview, the patient remained seated in an upright position, and
the movement of his upper limbs and neck was completely normal; the
patient did not appear to be experiencing any particular pain or discomfort
during the interview. I noted no conjunctival hyperhemia or lacrimation.
There are no abnormalities in cognitive function or
language.
Examination of the ocular fundi shows well-delineated
pupils and a venous pulse. No photophobia was noted.
The cranial nerves were examined and the confrontation
visual field test was normal. Extraocular movements are complete in all
directions visual fields are complete on the confrontation. There is no
nystagmus or diplopia. The pupils are equal at 5.5 mm and the direct and
consensual light reflex is normal. There is no ptosis. Facial sensitivity and
motricity are normal. Hearing is normal. Tongue and pharynx motricity are
normal.
Examination of the motor system shows equal muscle
strength on both sides, in both the upper and lower limbs, proximally and
distally. The Barré test is negative. The patient is able to walk on heels and
tiptoes.
There is no deficit in the sensory modalities,
including touch, pain, temperature, vibration and sense of position. The Romberg
test is negative.
The deep tendon reflexes are 1+ bilaterally in the
upper limbs and 2+ bilaterally in the lower limbs. The plantar reflexes are in
flexion on the right and the left.
Cerebellar examination shows that the patient is
able to walk in tandem and perform the finger-nose test without difficulty.
There is no murmur in the carotid artery, the
subclavian artery, the eyeballs or skull.
Movement of the neck is unlimited in all directions
There is mild hypersensitivity to pressure on the
scalp in the right paramedian region at the vertex.
There is no other pain on palpation of the scalp. There is no pain on pressure
to the face, in particular around the eyes.
DIAGNOSIS
·
Daily chronic headaches (atypical autonomic
headaches).
. . .
COMMENTS AND CONCLUSION
Since April 2001, this patient has been experiencing recurring
daily headaches which initially had the features of cluster headaches.
Over time, the nature of headaches changed somewhat. They
increased in duration and became chronic, persistent and constant. There
are two or three more acute exacerbations daily, each lasting a few hours.
The exacerbations that the patient experiences daily retain
some features of cluster headaches such as autonomic manifestations
(lacrimation and nasal discharge) and a need to get up and pace.
The patient never responded "satisfactorily"
to the various treatment measures, which included several symptomatic
medications and several prophylactic ones, not to mention periodic treatments
with corticosteroids, the use of oxygen, and the use of a sympathetic block.
On a few occasions, the various treatment measures
provided the patient with partial and/or temporary relief, but this was never
sustained and the patient gradually became refractory to all treatment
measures attempted.
The patient has no restrictions in performing the
activities of daily living, but his range of domestic activities, such as the
upkeep of his home, is restricted. The patient can move
about within and outside his home independently, and this includes the use of
his personal vehicle.
There is no doubt that the frequency, duration and
intensity of the patient's headaches prevent him from performing his previous
work as a cashier, or any other gainful employment.
Consequently, based on a detailed review of the
various documents in the file, and today's clinical evaluation, we are of the
opinion that:
. . .
In response to Question #4 regarding the ability to work: As stated in the above
discussion, the fact that the patient has two or three acute headaches
daily, each of which lasts two or more hours, causes significant functional
limitations in his ability to engage in any gainful employment whatsoever.
Since the patient has been experiencing these headaches for nearly four years,
and they have been refractory to the very numerous treatment measures utilized,
it seems likely that the patient's condition will be chronic in nature and unlikely
that a spontaneous remission will occur at any point.
[Emphasis
added.]
[11]
There
is also an expert report by Dr. Rousseau, another neurologist, who prepared it
for Desjardins Financial Security (Exhibit A-1, tab 13).The report is
dated February 2, 2005, and follows a 65-minute examination of the
patient on January 27, 2005. Since the report repeats several facts
that have already been set out above, I shall only reproduce those that appear
to be new, or that corroborate important facts:
[translation]
OVERVIEW OF FACTS RELATED TO CURRENT ILLNESS
. . .
In October 2001, his family doctor, who then believed that he was
suffering from depression, ordered him to stop working and referred him for psychiatric
treatment. No specific condition was identified.
. . .
Given the persistence of his headaches, he was eventually referred
to Dr. Liam Durcan, who first saw him on April 22, 2002,
and has been seeing him since. Dr. Durcan performed a complementary
work-up, including laboratory tests, an MRI and an EMG. He did not in fact confirm the family doctor's
earlier diagnosis of Horton's cephalalgia, but attempted various medications
and treatment procedures, none of which were effective beyond the short term.
. . .
APPLICANT'S CURRENT CONDITION
Since the spring of 2001, Mr. Fontaine has been reporting daily
headaches which he estimates to be 8 to 9/10 in intensity for 16 out of 24
hours, and 3 to 4/10 the rest of the time, despite all the treatments attempted.
He describes right hemicrania in the parietal region, radiating to
the occipital region (but never to the neck) and to the right periorbital
region. He likens the pain to "being stabbed in the eye with a knife"
and his episodes include lacrimation from the right eye, discharge from the
right nostril and palpebral ptosis on the same side but without conjunctival
redness.
According to Mr. Fontaine, the autonomic phenomena described above
may precede the intense pain attacks or occur during them. The pain episodes,
which occur up to four times a day, last three to four hours each and may
occur at night. During these episodes, Mr. Fontaine uses oxygen or
"relaxes". Following these episodes, the pain intensity diminishes to
3 to 4/10.
. . .
The remainder of the neurological questionnaire contributes nothing
further, but Mr. Fontaine notes that he tires easily. As far as activities
are concerned, he tries to walk two or three times a day. (He has been
living in St-Lin des Laurentides for roughly two years.) His wife stopped
working a year ago due to fatigue and depression. He takes part in a few
household tasks but adds that he does so only to a limited extent because he
tires easily. Upon returning from a walk, he must lie down and
"nap". He adds that he gets little sleep at night due to the
headache attacks. He sometimes does errands and drives his car, but over
short distances and, whenever possible, with his wife in the vehicle.
In fact, he added that she came with him to my office. He visits
friends or his sister, who lives nearby. Snow removal duties are contracted
out, and his son or brother-in-law is responsible for maintaining the lawn
since he experiences constant nausea. He previously enjoyed fixing things
up (antiques) but no longer does.
NEUROLOGICAL EXAM
. . .
Mr. Fontaine was highly cooperative at the interview.
He appeared alert, did not seem to be in pain, and exhibited no lacrimation
or rhinorrhea.
. . .
INFORMATION FROM MEDICAL
SOURCES
Notes of Dr. Liam Durcan
. . .
In a letter to Lise Gauthier dated August 29, 2003, Dr. Durcan
states that Mr. Fontaine has been under his care since April 2002. He
reiterates the diagnosis of atypical cluster headache (by reason of their
duration, frequency and persistence). He reports having attempted several
different medications, without much improvement. He provides the list of the
various medications used. He adds that he has never seen Mr. Fontaine
during an attack, and never observed any autonomic phenomena. However, he
adds that Mr. Fontaine did attempt to return to work and that he therefore
tends to take Mr. Fontaine's description of his symptoms seriously. He
states that, given the frequency and intensity of the pain described, the patient
is unable to work and that treatment resources are running out.
. . .
ANSWERS TO QUESTIONS
1. If you believe that this person's
current condition meets this definition (the definition of total disability as
worded), please tell us roughly when the person might be able to return to
work:
The only diagnosis that one can state with certainty in this case is
chronic daily headaches, sometimes associated with autonomic
manifestations that point to a diagnosis of "cluster" headaches,
but certainly atypical.
. . .
Indeed, as Dr. Durcan and Dr. Roy have already noted,
the prolonged evolution of the head pain presented by Mr. Fontaine for the
past years, and the fact that it occurs daily and is refractory to all the
therapeutic attempts undertaken, would seem to prevent him from being able
to return to his previous employment. Thus, one must conclude that Mr. Fontaine
meets the definition of total disability as worded.
2. If there is a total disability, what
are your recommendations as to the treatment required by our insured's
condition so that he can resume his activities as quickly as possible:
. . .
At this stage, given the refractory nature of the headaches
described by the applicant up to this date, it is far from certain that the
current treatment recommendations have a greater chance of success.
[Emphasis
added.]
[12]
I
would also like to mention that Dr. Villeneuve, Mr. Fontaine's family
doctor, diagnosed the patient with Horton's headache. In his testimony,
Mr. Fontaine also described his headache as Horton's headache. Here is the
definition of Horton's vascular headache from Garnier & Delamare, Dictionnaire
des termes de médecine, 26th ed. (Paris: Maloine, 2000), at page 142: [translation]
Type of facial neuralgia, see this term, typified by paroxysmal
burning pain on one side of the head, with an extremely painful sensation of
intracranial pulsation, vasomotor disturbances on one side of the face and
sometimes the corresponding upper limb, and hyperesthesia when pressure is
placed on the branches of the external carotid artery. The attacks occur over
and over again during a period of 24 hours or even several weeks. Horton
attributed them to a release of histamine.
[13]
According
to Dr. Rousseau, Dr. Durcan did not confirm Dr. Villeneuve's diagnosis; Dr.
Rousseau states this in her expert report. Like Dr. Durcan, Dr. Roy believes
that Mr. Fontaine is suffering from atypical autonomic headaches.
Dr. Rousseau states that Mr. Fontaine is suffering from [translation] "chronic daily
headaches . . . that point to a diagnosis of
"cluster" headaches, but certainly atypical."
[14]
It
would be helpful to reproduce certain excerpts on the subject of
"cluster headache" from a textbook entitled The Headaches,
2d ed., by Jes Olesen, M.D., Peer Tfelt‑Hansen, M.D. and
K. Michael A. Welch, M.D., dirs. (Philadelphia: Lippincott
Williams & Wilkins, 1999), which can be found at tab 14 of the book of
authorities:
CLASSIFICATION AND SHORT DESCRIPTION
. . .
Cluster headache is characterized by attacks of strictly unilateral,
severe pain with orbital, supraorbital, or temporal location. Attacks last
15 to 180 minutes and usually occur one or several times per day, especially at
night. They are accompanied by ipsilateral conjunctival injection,
lacrimation, rhinorrhea or nasal congestion, eyelid edema, miosis, and low
grade ptosis. . . .
Two main clinical forms of CH may be diagnosed: episodic and chronic.
The most common form is the episodic form, which affects 80% to 90% of
patients. . . .
The chronic form lacks the remissions and is diagnosed after 1 year
without remission or if remissions have lasted less than 14 days. . . .
PAIN CHARACTER
The maximum intensity of pain is generally localized behind the eye, radiating toward the temple or
to the upper cheek. It is described as excruciating, almost intolerable,
as if the eye is pushed out of the orbit or a knife is being turned around.
. . . Attacks of kidney stone or intensive tooth ache, which
both are examples of locked-in pain processes, resemble cluster headache with
respect to pain character and behavior during pain. . . .
CHARACTERISTICS
OF INDIVIDUAL ATTACKS
As a function of the cyclical occurrence of the
disease, cluster attacks usually have their onset once or twice a day,
usually in the same hours in many patients, at least for particular time
intervals (1-2 weeks). When plotting the most common hours of onset for the
patients described by Manzoni et al. (31), sharp peaks were found between 1 and
2 a.m. and between 1 and 3 p.m., with a third peak reached around 9 p.m.
Therefore, the main "entraining" factors of cluster attacks can be
considered to be some phases of sleep (REM, in particular) (32) and the time of
meals, as well as all the events that occur in the time span considered (activity
rest cycle, working hours, and so forth).
In Russell’s study (37), 51% of attacks began when
patients were asleep, the peak frequency being from 4:00 a.m. to 10:00 a.m.
(Fig. 1). The average time asleep per 24 hours for patients during the study
did not exceed 6.9 hours, so that the relative frequency of attacks was
increased during sleep. There is also a tendency for daytime attacks to
begin during naps or periods of physical activity. It is of interest that
Manzoni et al. (31) found an increased frequency of attacks between 1:00 p.m.
and 3:00 p.m. However, as they point out, this may be explained by the
different living habits of their patients, the majority of whom stopped
working during this period.
Pain attacks are typically unilateral, extremely severe, and often
accompanied by local ipsilateral symptoms and signs of autonomic dysfunction.
[...]
Usually cluster attacks last between 15 minutes and 2 hours,
generally being shorter at the beginning and end of each cluster period.
According to the diagnostic criteria of the IHS classification, each attack
should last not more than 3 hours if untreated. In a prospective study of
77 attacks (37), total duration was less than 30 minutes in 29%, less than 45
minutes in 62%, and less than 1 hour in 78% of patients (Fig. 3). In the same study, the pain reached its peak in less than
10 minutes in almost all cases, maximal pain intensity lasted less than 30
minutes, and the pain subsided in less than 40 minutes. The severity and
duration of nocturnal and daytime attacks were similar.
. . .
DIAGNOSIS
Most patients with cluster headache seek medical help
between attacks, and it is in fact relatively seldom that the physician has
an opportunity to witness an actual attack of headache. With the exception
of a possible partial Horner syndrome on the symptomatic side, the results of a
physical and neurologic examination are negative. Consequently, the
diagnosis is based mainly on the history of the patient. The interview
should be performed as soon as possible after an attack and also eventually
during an actual attack of headache. If there is only a short history of
disease, the diagnosis may be difficult, but if the patient has suffered
previously from several identical periods of headache, it is easy to establish
a correct diagnosis. Most patients seen at a specialized clinic have had many
series of headache attacks and are thus most commonly able to give a detailed
and reliable anamnesis.
Some features of the pain of cluster headache are of special
diagnostic importance: (a) strict unilaterality, (b) severe intensity, (c)
orbital localization, and (d) short duration. [...]
[Emphasis added.]
Analysis
[15]
It
would be important to quote the text of the relevant provisions of the Act,
namely sections 118.3 and 118.4, from the outset:
Credit for mental or physical impairment
118.3 (1) Where
(a) an individual has one or more severe and
prolonged impairments in physical or mental functions,
(a.1) the effects of the impairment
or impairments are such that the individual’s ability to perform more
than one basic activity of daily living is significantly restricted where the
cumulative effect of those restrictions is equivalent to having a marked
restriction in the ability to perform a basic activity of daily living or
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 an impairment
in physical or mental functions the effects of which are such that the
individual’s ability to perform a single basic activity of daily living
is markedly restricted or would be so restricted but for therapy referred to in
paragraph (a.1), a medical practitioner has certified in prescribed
form that the impairment is a severe and prolonged impairment in physical
or mental functions 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 (a.1),
where the medical practitioner is a medical doctor or, in the case of
. . .
(a.3) in the case of one or more
impairments in physical or mental functions the effects of which are such that
the individual’s ability to perform more than one basic activity of
daily living is significantly restricted, a medical practitioner has certified
in prescribed form that the impairment or impairments are severe and prolonged
impairments in physical or mental functions the effects of which are such that
the individual’s ability to perform more than one basic activity of daily
living is significantly restricted and that the cumulative effect of those
restrictions is equivalent to having a marked restriction in the ability to
perform a single basic activity of daily living, where the medical practitioner
is, in the case of
(i) an impairment with respect to the individual’s ability in
feeding or dressing themself, or in walking, a medical doctor or an
occupational therapist, and
(ii) in the case of any other impairment, a medical doctor,
(b) the individual has filed for a taxation year
with the Minister the certificate described in paragraph (a.2) or (a.3),
. . .
Additional information
(4) Where a claim under this section or under section
118.8 is made in respect of an individual's impairment
(a) if the
Minister requests in writing information with respect to the individual’s
impairment, its effects on the individual and, where applicable, the
therapy referred to in paragraph (1)(a.1) that is required to be administered, from
any person referred to in subsection (1) or (2) or section 118.8 in
connection with such a claim, that person shall provide the information so
requested to the Minister in writing; and
(b) if the information referred to in
paragraph (a) is provided by a person referred to in paragraph (1)(a.2), the
information so provided is deemed to be included in a certificate in
prescribed form.
Nature of impairment
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;
(b.1) . . .
(c) a basic
activity of daily living in relation to an individual means
(i) mental functions
necessary for everyday life,
(ii) feeding
oneself or 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;
(c.1) mental
functions necessary for everyday life include
(i) memory,
(ii) problem solving,
goal-setting and judgement (taken together), and
(iii)
adaptive functioning;
(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;
. . .
[Emphasis added.]
[16]
The
two sections set out several conditions that must be met in order for an
individual to be entitled to the credit. Three are worth our attention.
Entitlement to the credit requires (i) a severe and prolonged impairment, (ii)
the effects of which are such that the ability to perform a basic activity of
daily living is markedly restricted;
and (iii) a certificate of a medical practitioner, or another person specified
in the Act, stating that the first two conditions have been met.
[17]
It
must be emphasized that the position adopted by Associate Chief Judge Bowman
(as he then was) in paragraph 18 of the decision in Morrison v. The Queen,
[1999] 1 C.T.C. 2331, namely, that the wording of paragraph
118.3(1)(a.2) in relation to the filing of such as certificate "is
directory only, and not mandatory", was rejected by the Federal Court of
Appeal in MacIsaac v. Canada, [1999] F.C.J. No. 1898
(QL), [2000] 1 C.T.C. 307, 2000 DTC 6020. The Court of Appeal stated: "Section
118.3(1)(a.2) of the Income Tax Act is not merely directory. It is
mandatory. Simply put, there must be a certificate by the doctor that the
individual suffers impairments in the language of these subsections." It
is therefore one of the essential conditions precedent to being entitled to the
tax credit.
[18]
In
view of the evidence heard, I acknowledge that Mr. Fontaine had serious
health problems which led the Régie des rentes du Québec and his employer's
insurer to declare him disabled. This means that they acknowledged that he
could no longer work. However, work is not a basic activity of daily living
under section 118.4 of the Act. Moreover, I am not satisfied that,
during the relevant period, the effects of Mr. Fontaine's disability (his
headaches) were such that his ability to perform a basic activity of daily
living was markedly restricted, that is to say, that all or substantially all
of the time, he was unable to perform such an activity without requiring an
inordinate amount of time. The evidence adduced by Mr. Fontaine does not
stand up to a detailed analysis. There are several contradictions in his
evidence concerning the three conditions described above.
[19]
In his
testimony at the hearing, Mr. Fontaine placed considerable emphasis on the
effects of the disability on his mental functions and his ability to walk.
With respect to his mental functions, he stated that he had many memory
problems. He attributes these problems to difficulties with concentration. He
says that forgets about things that happened the day before. He says that he
cannot go grocery shopping without a list. I believe that he spoke about
losing 30-40% of certain details. He even said that he sometimes forgets to
turn off the burners of his stove. However, his Notice of Appeal says very
little about his mental functions. It states [translation]:
"I have very sore muscles and my knees lock. Joints are stiff,
I no longer have much strength, I am always tired, have intestinal
problems, liver problems due to medications, and stomach problems, and fibro
gives me irritable bowel . . . I have mental and physical
impairments."
[20]
I did
not see these mental function problems during Mr. Fontaine's testimony.
The testimony lasted approximately two and a half hours. The hearing began at
9:50 a.m. and ended at 4:50 p.m. According to my recollection,
Mr. Fontaine was present the entire time. I noted nothing abnormal in his
behaviour. He was able to answer most questions he was asked. His memory
was as good as the average witness who testifies before this Court. He was able
to answer the memory-testing questions asked by counsel for the respondent.
For example, when she asked him to say when he had a restaurant meal with
his accountant, he was able to respond that the meal took place at a Chinese
restaurant in Terrebonne at roughly 6:30 p.m. on a Saturday, and that his
wife and the accountant's wife were there as well.
[21]
It
must be added that Mr. Fontaine prepared his own Notice of Appeal for
these proceedings. He did not need to retain the services of his accountant
friend. He was also the one who went over the conversations that he had
with the Minister's representative concerning the disallowance of the
disability tax credit for 2005. It is therefore clear that Mr. Fontaine
can use his mental functions without much difficulty.
[22]
It
must be said that many people who are characterized as "normal" have
to put up with the memory problems that Mr. Fontaine has described. Many
people use a grocery list to avoid forgetting to make certain purchases. I
would add that it is normal to lack concentration when one is in intense pain.
It is therefore quite possible that this pain causes Mr. Fontaine to have
trouble remembering things that may have happened. However, his attacks
are not constant and, as he acknowledged to expert physicians, and as the
medical literature that I have quoted discloses, the attacks often occur at
night.
[23]
Other
assertions made by Mr. Fontaine raise doubts about the probative value of his
testimony, notably with respect to the alleged lack of cognitive function.
Dr. Durcan confirmed that Mr. Fontaine could drive his car. How can
one drive a car if one is without cognitive function all or substantially all
the time? With regard to this question, Mr. Fontaine stated that he
reduced the use of his car considerably, from roughly 15 000 – 20 000 km
before his medical problems arose, to roughly 3 000 km
afterwards. He said that he only drives close to home — to go to the convenience
store, for example — or, as stated in one of his expert
reports, to visit friends or relatives. Mr. Fontaine said that when
he went to visit his doctor in Montréal, he had someone drive him. However, as
Dr. Roy and Dr. Rousseau's expert reports attest, Mr. Fontaine
drove from St-Lin to Montréal,
a roughly one‑hour trip. He even went alone to see Dr. Roy
while he was suffering from a headache with an intensity of 5 or 6/10. His wife
came with him to see Dr. Rousseau.
[24]
In my
view, there is another reason for the substantially reduced use of his car.
Mr. Fontaine stopped working after being declared disabled for the
purposes of the Régie des rentes du Québec, and his employer's insurance policy
with Desjardins Financial Security. Since he was no longer working, he did not
have to use a car as often as before.
[25]
It
should also be noted that no witnesses were called to establish or corroborate
the facts presented by Mr. Fontaine. In an appeal, it is dangerous not to
adduce the best evidence, such as corroborations through independent third
parties. This situation is especially surprising in this instance because the
party involved is alleging memory problems.
[26]
Another
answer given by Mr. Fontaine raises doubts about how frank his responses
were. When counsel for the respondent asked him for the name of the accountant
who had helped him prepare his income tax returns ― Mr. Fontaine had
said that he stopped preparing his own income tax returns in 2002 due to his
health problems ― he replied "Guy". When
counsel for the respondent asked him for a last name, he said he did not
recall. He added [translation]
"Why do you need that answer?", and never provided the accountant's
last name. I intervened shortly thereafter, and put it to him that perhaps
he wanted to protect his accountant because he thought he had not reported his
fee from that work. Mr. Fontaine appeared to acquiesce; in any event, he
did not contest this theory. Since he had been using Guy's services for
several years, Guy was very likely the person with whom he had dined at the
restaurant. It is implausible that he cannot remember the accountant's last
name.
[27]
Dr.
Roy, who examined Mr. Fontaine in January 2005, did not note any significant
effects on mental functions or on the other basic activities of daily living,
such as walking and dressing oneself. On the contrary, based on
Mr. Fontaine's assertions and his own observations, he wrote that
Mr. Fontaine [translation] "has
no restrictions in performing the activities of daily living":
[translation]
. . . He got to his appointment on his own by driving his car
from his home in
St‑Lin des Laurentides). [p. 6]
The patient notes that he is able to carry out the activities of
daily living independently.
. . .
There are no abnormalities in cognitive functions or
language. [p. 8]
The patient has no restrictions in performing the activities of
daily living, but his range of domestic activities, such as the upkeep of
his home, is restricted. The patient can move about within and outside his home independently, and this includes
the use of his personal vehicle. [pages 10-11]
[Emphasis added.]
[28]
Mr. Fontaine's
testimony about his walking problems was not convincing either. His
explanations concerning the problems that he described strike me as doubtful.
In court, he said that it could take him 30 minutes to get to the grocery
store, whereas he was able to get there in 10 minutes prior to his medical
problems. Let us look at what Dr. Roy and Dr. Rousseau's medical
reports disclose. Dr. Roy notes as follows in his report, under the heading [translation] "Subjective
Examination":
[translation]
As far as day-to-day living is concerned, the patient
says that he can walk outdoors for roughly 30 minutes once or twice a
day; he reports feeling very tired and needing to lie down in a chaise longue
upon returning from these walks. . . . . [page 8]
[Emphasis added.]
[29]
The
same report contains the following observations from Dr. Roy's objective
examination of the patient:
[translation]
The patient entered the examination room at a regular walking
pace. There is no limping or wide-based gait. The two upper limbs are in
normal balance.
Throughout the interview, the patient remained seated
in an upright position, and the movement of his upper limbs and neck
was completely normal; the patient did not appear to be experiencing any
particular pain or discomfort during the interview. I noted no conjunctival
hyperhemia or lacrimation.
[Emphasis
added.]
[30]
These
and other remarks contained in Dr. Roy's report show that Mr. Fontaine did
not report any walking problems to Dr. Roy at the beginning of the relevant
period. He never said the he had trouble walking a normal distance during his
30‑minute walks. It seems to me that such a fact would have been
important in establishing disability for the experts at the Régie des rentes du
Québec and Desjardins Financial Security.
[31]
As for
the question of the duration, intensity and recurrence of his headaches, the
description that Mr. Fontaine gave in court and the description that he
gave the various expert physicians that he met in 2005 differ in many respects,
as can be seen from Dr. Roy and Dr. Rousseau's reports and from the comments in
Dr. Durcan's file. In court, Mr. Fontaine always assessed the
intensity of his headache attacks as 10/10, whereas the intensity that he
reported to Dr. Roy or Dr. Rousseau when he met with them was 8 or 9/10.
[32]
With
respect to the minimum intensity levels, he assessed them at 5 to 6/10 in
court, whereas he told Dr. Roy that they were a 2 or 3/10 and told
Dr. Rousseau that they were a 3 or 4/10. As to the matter of recurrence,
he told the Court and Dr. Rousseau that he had three or four headaches a
day, whereas he told Dr. Roy that he had two or three daily.
[33]
With
respect to the duration of the attack, Mr. Fontaine told the Court that they
were four to five hours long, whereas the duration to which Dr. Roy
referred was two or three hours. When Mr. Fontaine saw Dr. Durcan and
Dr. Rousseau, he reported that the attacks were three or four hours in
duration.
[34]
Since
he told Dr. Rousseau that there could be up to three or four attacks a day, it
was possible that he had intense pain for 16 out of every 24 hours. However,
one could also infer that his attacks ranged from four to 16 hours in total,
depending on the version that one accepts. He told the Court that he had three
or four attacks a day on average, each of which lasted four to five hours,
which appears to me to be slightly longer than what he told Dr. Roy and
Dr. Rousseau. Obviously, if this were the only problem with Mr. Fontaine's
testimony, it might not be sufficient to raise doubts about his credibility.
However, when these differing versions are added to the other doubtful
elements of his testimony, it leads to the conclusion that his evidence is
weak.
[35]
Dr. Roy's
finding that Mr. Fontaine [translation]
"has no restrictions in performing the activities of daily living" is
consistent with the first of three certificates (Form T2201) which Dr. Durcan
prepared and which Mr. Fontaine submitted to the Minister in support of
his tax credit claim (Exhibit A-1, tab 8). In the certificate, which is
dated February 8, 2006, Dr. Durcan answers "no" to all the
questions in Part B (the part which pertains to the restrictions of the basic
activities of daily living, and which must be completed by the qualified
practitioner). This might appear to be a mistake on Dr. Durcan's part, but that
impression dissipates after reading his remarks toward the end: "The
patient has intractable headache pain with pain approximately 12 hours per day
– this problem is not well described by the categories available on this
form." It must be added that he also answered "no" to the
question on the last page of the form, which asks whether the impairment has
lasted at least 12 continuous months. I consider this to be completely
consistent with the other negative answers. The reason that he answered
"no" would have to be that he did not feel that that his client's
condition came within the description in Part B of the form.
[36]
On the
other hand, it should be mentioned that Dr. Durcan wrote a "To whom
it may concern" letter (Exhibit A‑1, tab 12), dated
August 14, 2006, in which he seemed to be trying to revise his
February 2006 certificate. However, I would note that this letter is
written in general terms. It states, inter alia, as follows:
. . . While not making his activities of daily living
impossible, these headaches mean that it takes my patient an excessively long
time to perform his activities of daily living.
The headaches have been occurring chronically since 2002 and I
suspect they will continue.
[37]
Dr.
Durcan did not specify the activities to which he was referring. He had the
opportunity to correct the situation when he submitted a second certificate
dated April 2, 2007 (Exhibit A‑1, tab 9, and
Exhibit I‑3). There, he answered no to all the questions about the
restrictions of the basic activities of daily living, except the question about
mental functions.
His answer to the question, "[W]hen did your patient's marked restriction
in the mental functions necessary for everyday life begin?", was
"2002". The
explanation for his change of opinion is provided on the last page, where
Dr. Durcan stated: "During his intense headaches, he is not capable to [sic]
exercising normal cognitive function and therefore I have made this decision
respecting his frequent, episodic [illegible] headaches."
[38]
Unfortunately,
this second certificate is incomplete, because Dr. Durcan failed to answer
the question on the last page of the form, regarding the duration of the
physical impairment.
[39]
There
was a third certificate, dated September 24, 2007 (Exhibit A‑1, tab 10),
in which Dr. Durcan changed his answers yet again. This time, in addition
to mental functions, he said that Mr. Fontaine's ability to walk and dress
himself were markedly restricted basic activities of daily living, and he wrote
that, in each case, the impairment commenced in 2002. If this situation existed
in 2002, why was it not entered, at least in Dr. Durcan's second certificate?
[40]
On the
last page of the form, Dr. Durcan provided the following explanation: "Incapaciting
[sic] and intractable headache pain, 8-10 hours per day during which he
cannot perform ADL."
[41]
This
time, Dr. Durcan completed the duration part properly, because he answered
"yes" to the question about duration. However, I would note that he
filled out other parts of his certificate incorrectly, as he answered
"yes" to the question, "Does your patient meet the conditions
for life-sustaining therapy, as described above?" under the heading
"Life-sustaining therapy". In response to the request for details
about the therapy, he wrote: [translation]
"Has used oxygen as treatment (cluster headache)" Yet the section on
therapy begins with the statement, "Your patient needs life-sustaining
therapy to support a vital function, even if the therapy has alleviated
the symptoms . . . ." Oxygen was not being used to keep
Mr. Fontaine alive, but solely to enable him to attenuate the intensity of
his headaches. Thus, Dr. Durcan misunderstood this section of the form.
[42]
The
same remarks apply to the section that deals with the cumulative effect of
significant restrictions for 2005 and later years. It says,
"If your patient is markedly restricted under any of the previous
sections, it is not necessary to complete this section." Since he stated,
in the previous sections, that his patient was suffering from a markedly
restricting disability, Dr. Durcan did not have to fill out the section
about cumulative effect. The reason is clear: the last section is about
conferring eligibility on a taxpayer who does not meet the other conditions set
out in the form.
[43]
Lastly,
a fourth certificate was submitted in support of a tax credit claim made by
Mr. Fontaine. The form was completed by Dr. Villeneuve on
January 28, 2008 (Exhibit A‑1, tab 11, and
Exhibit I‑4). In the document, Dr. Villeneuve essentially certified
that Mr. Fontaine was suffering from a mental or physical impairment that
markedly restricted his mental functions. He therefore answered "yes"
to the question concerning mental functions. Moreover, he indicated
"2002" as the beginning of the impairment or restriction.
[44]
He did
not answer the question about the "walking" activity. However, in the
section of the form concerning "Elimination (bowel or bladder
functions)", he checked the "Not applicable" box and wrote the
remarks [translation]
"2002 — Horton's cephalalgia" and "2006 —
fibromyalgia". I assume that these answers pertain to the section at
the beginning of the same page, which deals with the "walking"
activity. As for "dressing", Dr. Villeneuve checked the
"Not applicable" box, thereby contradicting Dr. Durcan's third
certificate.
[45]
The
section concerning life-sustaining therapy contains mistakes similar to those
made by Dr. Durcan. Indeed, Dr. Villeneuve also made the mistake of
mentioning oxygen use in this section of the form, even though it was not
employed to "sustain a vital function", and the mistake of filling
out the section regarding cumulative effects, even though he had stated that
Mr. Fontaine's ability to perform a basic activity of daily living was
markedly restricted. He also filled out this last section improperly in
that he only checked one basic activity of daily living, namely
"walking", when he should have checked at least one other activity in
order to comply with the form's instruction: "check at least two of the
following".
[46]
Since
Dr. Villeneuve did not answer the question about walking, and wrote
"not applicable" next to the "dressing" activity, it
appears that the Minister felt the need to obtain clarifications.
Exhibit I‑4 is an appendix to the certificate with additional
information supplied in connection with the "walking" activity. In response
to the question, [translation]
"Is your patient able to walk (for example, 100 metres) using, as needed,
any therapy . . .", Dr. Villeneuve stated
"Yes". In response to the question [translation]
"When your patient is able to walk, does he require an "inordinate
amount of time" to do so (even with the help of appropriate therapy,
devices and medications?)", Dr. Villeneuve stated
"No." Thus, once again, he was contradicting Dr. Durcan's third
certificate.
[47]
With
respect to the "dressing" activity, he stated that his patient could
dress himself, and in response to the question whether the patient required an
inordinate amount of time to do so, he said that it was not applicable, and
then added, after the definition of "inordinate amount of time", [translation] "Depends on the pain,
which is variable". In response to the question [translation] "If so, is this the case all or
substantially all the time?" he stated "Yes". I presume that he
meant that it was the case when Mr. Fontaine was experiencing very intense
pain. However, that did not answer the question whether he had trouble dressing
himself all or substantially all the time. It does not appear that he
did.
[48]
Another
answer given by Dr. Villeneuve on the supplementary information form requires
comment. On the second-to-last page, he stated that the fibromyalgia began in
2007, not 2006, as he had stated under the heading "Elimination (bladder
or bowel function)" on the initial form.
[49]
Although
I noted no such problems at the hearing, it is possible that Mr. Fontaine
now has serious walking problems. However, I have not been convinced that they
existed in 2005 and 2006. Fibromyalgia, which appears to have been diagnosed by
Dr. Villeneuve in 2007, would more likely account for such problems than
atypical autonomic headache. The following definition of fibromyalgia is from Stedman’s
Medical Dictionary, 28th ed.:
Fibromyalgia is a disorder of unknown cause characterized by chronic
widespread aching and stiffness, involving particularly the neck,
shoulders, back, and hips, which is aggravated by use of the affected muscles.
The American College of
Rheumatology has established diagnostic criteria that include pain on both
sides of the body, both above and below the waist, as well as in an axial
distribution (cervical, thoracic, lumbar spine, or anterior chest).
Additionally, point tenderness must be found in at least 11 of 18 specified
sites. Tender points are sharply localized and often bilaterally symmetric.
Some points may correspond to sites of pain and others may be painless until
palpated. Usually associated fatigue, a sense of weakness or inability to
perform certain movements, paresthesia, difficulty sleeping, and headaches
are found. About one fourth of patients with fibromyalgia receive partial or
total disability compensation. Fibromyalgia frequently occurs in conjunction
with migraine headaches, temporomandibular joint dysfunction, irritable
bowel syndrome, restless legs syndrome, chronic fatigue, and depression;
symptoms are typically exacerbated by emotional stress. The prevalence in the U.S. is estimated at 1-3% of the
population, with all races and socioeconomic strata affected about equally.
Most patients (90%) are adult women. The onset of symptoms usually occurs
before age 50. The disorder is chronic but not progressive. Routine
hematologic, serologic, and imaging studies yield uniformly normal results.
However, the sleep EEG typically shows intrusions of alpha waves into non-REM sleep and infrequent progression to
stage 3 and stage 4 sleep. One third of patients with fibromyalgia have low
insulinlike growth factor (IGF) levels. Elevation of cerebrospinal fluid
substance P, depression of cortisol production, and orthostatic hypotension
have also been reported. Most patients experience moderate to severe
disability, but symptoms can usually be mitigated by treatment. Effective
treatment programs include education, a regular program of low-impact aerobic
exercise, and physical therapy as needed. Cognitive therapy and group therapy
are often helpful. About one third of patients respond to pharmacologic agents
such as antidepressants (amitriptyline, fluoxetine) and muscle relaxants
(cyclobenzaprine).
[50]
If
problems with walking or dressing existed, it seems to me more plausible that
they appeared during a time frame subsequent to the relevant period.
[51]
Generally,
the analysis of the four certificates discloses contradictions between them,
and numerous mistakes in the information provided, which show a lack of
attention on the part of the physicians who prepared the certificates.
Associate Chief Judge Bowman wrote as follows in Morrison v. The Queen,
[2000] T.C.J. No. 302 (QL), at paragraph 20:
. . . Having heard dozens of these cases I have found
that such certificates are often unreliable, contradictory or confusing.
Some medical practitioners are sloppy in what they write, and a few seem
to regard a request by a patient as a nuisance. . . .
[Emphasis
added.]
[52]
In
light of my remarks about Mr. Fontaine's testimony and Dr. Roy's
report, which concluded, based on the information provided by
Mr. Fontaine, that he could perform his basic activities of daily living
independently and that Mr. Fontaine "has no restrictions in the
performance of the activities of daily living", I accord no weight to
Dr. Durcan's second and third certificates nor to Dr. Villeneuve's
certificate. I have not been satisfied that Dr. Durcan's last two
certificates describe the true situation with Mr. Fontaine's condition
during the relevant period. How can Dr. Durcan assert that the effects of
Mr. Fontaine's headaches are such that, "all or substantially all the
time", his "ability to perform the mental functions necessary for
everyday life" was "markedly restricted" (Exhibit A‑1,
tab 10, page 10, paragraph 13), when he declared the patient
capable of driving a car? In fact, I believe that Dr. Durcan's first
certificate is the correct one; it is the one that reflects reality. His client
certainly suffered from an impairment that could have an impact on his ability
to perform activities of daily living, but the effects were not of sufficient
intensity for one to conclude that it was a marked restriction.
[53]
It
should also be recalled that Dr. Durcan did not see Mr. Fontaine
during an attack. According to Dr. Roy's report, at page 4:
Throughout the patient's evolution, Dr. Durcan
always stated that his clinical examinations were normal in every respect; at
no time did he witness any signs of autonomic dysfunction or see the patient
during an acute attack.
[Emphasis added.]
[54]
Similar
comments can be found in Dr. Rousseau's report, at page 7, where she
refers to a letter from Dr. Durcan to Lise Gauthier:
[translation]
He adds that he has never seen Mr. Fontaine during an
attack, and never observed any autonomic phenomena. However, he adds that Mr. Fontaine did attempt to return to
work and that he therefore tends to take Mr. Fontaine's description of his
symptoms seriously. He states that, given the frequency and intensity of the
pain described, the patient is unable to work and that treatment resources are
running out.
[Emphasis added.]
[55]
Dr.
Roy and Dr. Rousseau were in the same position. Their diagnoses were all based
on what Mr. Fontaine told them. According to the medical literature, such
a situation is not abnormal. However, the physicians in question had to rely on
what Mr. Fontaine told them in order to diagnose him. For my part, I have
noticed that Mr. Fontaine's testimony cannot necessarily be taken completely
at face value all the time. He readily exaggerates the significance of
certain facts when he describes the symptoms of his attacks, particularly when
he describes the impact of his headaches on his mental functions, as we have
seen.
[56]
In
summary, the Court has not been convinced that, during the relevant period,
Mr. Fontaine suffered from an impairment (namely atypical autonomic
headaches) the effects of which were such that his ability to perform a basic
activity of daily living was markedly restricted. Nor has the Court been
convinced that there was a significant impairment that caused restrictions the
cumulative effects of which would entitle him to the tax credit.
[57]
For
all these reasons, Mr. Fontaine's appeal for the 2005 taxation year must
be quashed, and his appeal concerning the 2006 taxation year must be dismissed.
Signed at Boca Raton, Florida, this 29th day of April
2009.
"Pierre Archambault"
Translation certified true
On this 29th day of July 2009
Monica Chamberlain, Reviser
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