Citation: 2008 TCC 425
Date: 20080812
Docket: 2007-4839(IT)I
BETWEEN:
JEAN PELLETIER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Tardif J.
[1]
This is an appeal in
respect of the 2000, 2001, 2002, 2003, 2004, 2005 and 2006 taxation years.
[2]
The issue is whether
the Appellant was entitled to the disability tax credit for the 2006 taxation
year, and whether he may bring an appeal for the 2000, 2001, 2002, 2003, 2004 and
2005 taxation years.
[3]
In order to make and
confirm the assessment under appeal, the Respondent relied on the assumptions
of fact set out in paragraph 7 of the Reply to the Notice of Appeal,
subparagraphs (a) to (d) of which read as follows:
[TRANSLATION]
(a)
Upon filing his income tax return for the 2006
taxation year, the Appellant claimed the tax credit for severe and prolonged
physical impairment.
(b)
The Appellant has been suffering from Type 1
diabetes for several years.
(c)
The Appellant's condition does not restrict his
ability to perform basic activities of daily living.
(d)
According to his physician, Bruno St-Pierre,
M.D., the Appellant is controlling his blood sugar well, uses an insulin pump,
and, in his estimation, does not spend more than one hour per day on checking
his levels, calibrating the pump and self-injecting the medication.
[4]
After being sworn in,
the Appellant admitted to subparagraphs (a) and (b) and denied subparagraphs
(c) and (d).
[5]
In addition to
testifying for himself, the Appellant called his spouse, Sonia Larochelle,
as well as Daniel Lacombe and Jeannine Lapierre, both of whom have been
suffering from Type 1 diabetes for many years and are part of an
association of individuals who have the same major health problem stemming from
the condition.
[6]
I began with an
explanation of what the Appellant would need to show in order to meet his
burden of proof. I intervened several times to reiterate in different ways that
the Income Tax Act, and the Regulations thereunder, impose numerous conditions
that must be met in order to be entitled to the credit claimed, and to note
that his arguments would need to address the requirements of the Act.
[7]
Despite the cautions
and clarifications conveyed to him, the Appellant focussed his efforts on
contesting the competency of his attending physician, a specialist in the
field who has been working with him since his illness began some 20 years
ago. He asserted that the physician had no business saying what he did.
[8]
Intensely determined,
and profoundly affected by the limitations and consequences of his Type 1
diabetes, the Appellant clearly devoted countless hours to the preparation of
his appeal.
[9]
Most of his efforts
were spent marshalling a whole series of writings, manifestos and documents
that are of little relevance because each case is different.
[10]
The Act and the
Regulations do not specify which illnesses qualify for the credit. One
must take account of the relief that can be provided by devices, medications,
treatments, etc., not the severity of the illness for people who refuse to use
the available treatments.
[11]
The severity,
inconveniences and restrictions must be assessed on the assumption that the
taxpayer is benefiting from the appropriate medications and the available
medical treatment.
[12]
It is clear and well known
that a person who suffers from this type of diabetes is headed toward
catastrophe, if not death, if he or she refuses to exercise the discipline
essential to the achievement of some quality of life. In the case at bar, the
evidence has established that the Appellant kept abreast of everything that
could potentially help him; in fact, he obtained the most efficient devices and
got the training necessary to ensure that he was getting the most out of them.
[13]
The Appellant also gave
a detailed presentation concerning the time spent on keeping his blood sugar
levels under control and on the numerous things that he does every day in order
to maintain a balance; any reading below 4 or above 7 requires immediate
treatment in order to return to an acceptable level.
[14]
If the blood sugar
level is too low, immediate treatment is necessary, but there is a risk that
such treatment will cause a rapid and dangerous increase. This can cause
the patient a great deal of anxiety —
anxiety that is, in fact, warranted.
[15]
This can definitely be
a stressor and cause a great deal of tension for an anxious person like the
Appellant. In fact, the Appellant said that he had to take medications for his
anxiety and stress, which undoubtedly stem from his illness.
[16]
In describing the
consequences of his disease, the Appellant insisted that he had to devote at
least 14 hours per week to it.
[17]
To substantiate his
conclusion regarding the amount of time required, he tendered
a document containing several pages and listing the various measures that
have to be taken. The following is an excerpt from the document (Exhibit A‑3,
page 1):
[TRANSLATION]
Estimated time spent on treatments
|
- 4-8 blood sugar readings daily
- filling out and compiling
the data in the health record and printing out data
- regulating the insulin pump
- preparing the
glucometer calibration equipment; changing the tubing, reservoir and
batteries; checking the devices . . . (ketone body glucometer), status of the
pump and tubing currently in use
- calculating the correction bolus
- analyzing insulin doses
- downloading results
- reprogramming (bolus increment)
- checking blood sugar after correction
bolus if necessary
- calibrating and installing glucose uptake
- adjusting and changing basals
|
20-40 min
20 min/day
20-30 min/day
20 min/day
15 min/day
20 min/day
60 min/week
15 min/day
20 min/day
30 min/day
20 min/day
|
|
Total
|
200 min/day x 7 = 1,400 min or 23 h
|
[18]
The Appellant's spouse
also testified. She confirmed the essential elements of the Appellant's
testimony. However, it could be seen that the family atmosphere has been deeply
affected by the Appellant's medical condition.
[19]
In order to complete
her testimony, the Appellant's spouse sought to adduce a letter that she had
written and that aptly describes the situation. The letter discusses the
numerous problems and inconveniences that the family must endure by reason of
the Appellant's illness. Moreover, it explains that the couple's son is also affected.
[20]
In further support of
his appeal, the Appellant called, as witnesses, two exceptional individuals who
are coping with Type 1 diabetes. The first witness, Mr. Lacombe, a serene,
balanced and, above all, self-disciplined man, explained how he lived with his
disease.
[21]
Having chosen to accept
it, he dedicated himself, with great discipline, to maintaining balance,
thereby securing enough quality of life that he asserted that he was in good
health, adding immediately thereafter that he was in excellent health and had
no particular eyesight, kidney, amputation or other problem.
[22]
However, Mr. Lacombe
asserted that his health was a source of preoccupation and that he had to be
constantly vigilant in order to avoid predictable and inescapable difficulties
or problems that frequently cause permanent after-effects, such as amputation,
loss of eyesight, or severe kidney impairment.
[23]
The second witness, Jeannine
Lapierre, explained that she has never accepted the fact that she suffers from Type 1
diabetes. She also explained that she had to behave cautiously, vigilantly and
assiduously in order to keep her blood sugar levels stable. She
described the recent consequences of a careless moment in which she injected an
inappropriate kind of insulin.
[24]
The Appellant's
evidence, which consisted of his testimony and that of three other individuals,
very clearly showed that the Appellant is worried. It also made plain his stress
and deep preoccupation, which tend to cause a certain amount of exaggeration.
[25]
Type 1 diabetes is
a severe physical disability that has significant and very serious effects.
However, it is a widespread condition that is the subject of ongoing and
significant research that is helping sufferers improve their quality of life.
[26]
Medicine, research, medications
and a variety of available devices enable reasonable people, who are receptive
to obtaining the available help and support, to achieve some quality of
life, though I admit that the requisite self-discipline is neither easy nor
straightforward.
[27]
The elements that must
be taken into account cannot be assessed in an exclusively objective fashion
because the same serious medical problem, such as Type 1 diabetes, does
not identically affect everyone who suffers from it. In my opinion, it is
important to assess the situation having regard to its reasonableness.
[28]
It is also important to
understand that the question of whether a person is entitled to the credit is
one that must be asked afresh each year, though it must be observed that, once entitlement
has been established by acceptable evidence, the Canada Revenue Agency is
unlikely to reopen the question of entitlement.
[29]
In the case at bar, there
are truly two approaches: the approach described by the Appellant and his
spouse, and the approach described by his medical specialist and his two
witnesses.
[30]
The Appellant's
approach strikes me as somewhat of an exaggeration, not because of bad faith
or dishonesty, but simply because of perception. In fact, his spouse's
testimony is very relevant in this regard. Family life is deteriorating because
everyone must conform to Mr. Pelletier's mood, which, based on his attitude
before this Court, cannot always be easy, since he is the kind of person who
must always be right. I have no doubts as to the truthfulness of the
Appellant's spouse, since the Appellant's anxieties and nervousness undoubtedly
generate a climate of great tension.
[31]
In fact, following the
Court's remarks, the Appellant got carried away; he questioned the Court's
impartiality, adding that there was no justice and thereby putting an end to
the debate, despite having been given all the time needed to assert his rights.
[32]
This overreaction validates
the theory that the Appellant tends to exaggerate certain situations. Thus, in
my opinion, the Appellant's assessment of the amount of time required in order
to do certain things is exaggerated.
[33]
As for the other
approach, the Appellant's attending physician, a diabetes specialist, estimates
that the requisite amount of time is a few hours per week. Thus, there is
a significant gap between his estimate and the Appellant's self‑serving and
subjective assessment. This is not an unimportant discrepancy attributable
to the fact that each individual has a different pace. And in fact, the
assessment of the Appellant's attending physician is consistent with the
explanations given by the two witnesses, who, it should be recalled, testified
at the Appellant's request.
[34]
Fourteen hours per week
is a significant amount of time for someone who dramatizes something that is, I
admit, dramatic to begin with.
[35]
However, for a person
who realizes that he or she will have to be committed to constant and ongoing attention,
supervision and vigilance for the rest of his or her life, the measures that he
or she must take are part of a routine that makes a certain quality of life
possible.
[36]
Did Mr. Lacombe not assert
that he was in good health, or even very good health? This is a
significant illustration of how a person might behave even though he or she is
disabled by Type 1 diabetes.
[37]
The credit available
under the Act is primarily for the direct consequences of the disability.
Character and personality are also important, but must not be determinative in
assessing the evidence pertaining to entitlement.
[38]
Generally,
section 118.3 of the Act
provides that, in order to be entitled to the credit, there must be a
medical certificate (in the prescribed form T2201) specifying that the taxpayer
has a severe and prolonged impairment in physical or mental functions, and that
the effects of that impairment are such that the taxpayer's ability to perform
a basic activity of daily living is markedly restricted.
[39]
In MacIsaac, Docket
A-661‑98, December 3, 1999, the Federal Court of Appeal specified that
the requirement to obtain and provide the Minister with a medical certificate
was mandatory, not directory; in other words, without the medical
practitioner's certificate stating that the individual suffers from an
impairment contemplated in the Act, the individual will not be entitled to
a credit.
"THE ABILITY TO PERFORM A BASIC ACTIVITY OF
DAILY LIVING IS MARKEDLY RESTRICTED"
[40]
Although
this is not a mathematical formula, the wording, and its scope, are nonetheless
clear. The evidence has not established that the Appellant was unable to
perform a basic activity of daily living (understanding, seeing, feeding,
walking or speaking.)
[41]
Was the
disability such that, for the 2006 taxation year, the basic activities
of daily living were markedly restricted? There is no doubt about the worries,
constraints and inconveniences, but, in light of the testimony given by the
Appellant's two witnesses and the medical specialist who has been treating this
illness since its onset, the evidence does not show that the restrictions in
issue were marked restrictions.
[42]
In Buchanan, Docket A-416-01, May 31, 2002, the
Federal Court of Appeal specified that, even though the Court must be
faithful to the wording of section 118.3 of the Act, which requires the certificate
of a medical practitioner, the Tax Court of Canada has the authority to
determine, based on viva voce evidence, that a negative certificate
should be treated as a positive certificate. In this regard, the Honourable
Justice Rothstein stated as follows, at paragraphs 17 and 18:
[I]t is possible for the
taxpayer to ask the physician to reconsider his answers on the certificate or
perhaps to obtain a positive certificate from another physician who does not
misinterpret the requirements of the Act. . . .
In an appropriate case, the
taxpayer may seek relief in the Tax Court. Proceedings in the Tax Court
are not a judicial review of the correctness or reasonableness of the
Minister's assessment. Rather, the function of the Tax Court is to arrive at
the correct assessment itself (unless it is unable to do so and considers it
necessary to refer the assessment back to the Minister for reconsideration
under subparagraph 171(1)(b)(iii) of the Income Tax Act). The Tax
Court's consideration of the matter will be on the basis of the evidence
adduced in the Tax Court, even if that evidence was not before the Minister
when he made his assessment. . . .
[43]
The Act was amended for
the 2005 taxation year onward so that persons are entitled to the credit if
they suffer from impairments the effects of which are such that the their ability
to perform more than one basic activity of daily living is significantly (but
not markedly) 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.
[44]
This amendment appears
to be Parliament's response to the decision of Mr. Justice Little in Mehra v.
The Queen, Docket 2004-4745(IT)I, July 7, 2005 (T.C.C.) and the
decision of Judge Rip in Gossifidou v. The Queen, Docket 2003-572(IT)I, September 2, 2001
(T.C.C.). There, the Appellant's medical condition did not prevent him from
performing any of the basic activities of daily living, but the cumulative
effect of his condition nonetheless entitled him to the tax credit.
Tammi v. The Queen, Docket 2002-1979(IT)I,
September 11, 2003 (T.C.C.)
A six-year-old child
had Type 1 insulin-dependent diabetes. Despite the absence of a positive medical
certificate in the prescribed form, the Court found for the Appellant because
the medical practitioner had added a handwritten notation in which he stated
that the child needed help because of his age.
Radage v. The Queen, Docket 95‑1014(IT)I,
July 12, 1996 (T.C.C.).
Judge Bowman explained
the intent of the disability tax credit as follows:
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.
Stitson v. The Queen, Docket 2000-2150(IT)I,
May 3, 2004 (T.C.C.)
A
five-year-old child had Type I insulin-dependent diabetes (diabetes mellitus).
According to the medical certificate, the child was not entitled to the credit.
Mr. Justice Sarchuck specified, at paragraph 25, 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."
[45]
The Appellant further
submitted that his appeal pertained to the 2000, 2001, 2002, 2003, 2004, 2005 and
2006 taxation years. However, the Appellant exercised his right of objection only
for the 2006 year, with the obvious result that the objection stage, essential
to having access to the Tax Court of Canada, is missing from the history of
this matter.
[46]
The effect of the
failure to file an objection for those taxation years is that the Court is
deprived of any jurisdiction for the taxation years in issue.
[47]
Thus, since I have no
jurisdiction with respect to the taxation years 2000 through 2005, I must quash
the Notice of Appeal to the extent that it purports to apply to those years,
and I must limit myself to the 2006 taxation year, respecting which the
Appellant filed his objection on or about May 31, 2007, and the
determination was subsequently confirmed on November 22, 2007.
[48]
The Appellant complied
with the time limits and the procedure for the 2006 taxation year; however, based
on the evidence adduced, it cannot be concluded that the Appellant is entitled
to the credit that he claimed, and so the appeal is accordingly dismissed.
Signed at Ottawa, Canada, this
12th day of August 2008.
"Alain Tardif"
Translation certified true
on this 25th day of September
2008.
Susan Deichert, Reviser
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