Citation: 2008TCC499
Date: 20080911
Docket: 2008-805(IT)I
BETWEEN:
RENE CORBETT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
V.A. Miller, J.
[1]
This is an appeal from
an assessment made under the Income Tax Act (“the Act”) for the
2005 taxation year wherein the Minister of National Revenue (the “Minister”)
did not allow the Appellant the credit for mental or physical impairment. In
his Notice of Appeal the Appellant also asked that he be considered for the
credit for mental or physical impairment for the 2000, 2001, 2002, 2003 and
2004 taxation years.
[2]
Cathy Rissanen,
Litigation Officer, for the Canada Revenue Agency (“CRA”) testified that the
Appellant was last reassessed for his 2000 taxation year on March 21, 2002; for
his 2001 taxation year on September 15, 2003; for his 2002 taxation year on
September 15, 2003; for his 2003 taxation year on July 15, 2004; and, for his
2004 taxation year on December 28, 2005. The Appellant did not file Notices of
Objection for the 2000, 2001, 2002, 2003 and 2004 taxation years. As well, the
Appellant has never filed applications for extension of time to file Notices of
Objection for these years. Consequently, the 2000, 2001, 2002, 2003 and 2004
taxation years cannot be considered by this court.
[3]
In his Notice of Appeal
the Appellant asked that he be considered eligible to receive the credit for
mental or physical impairment on the basis that he receives life-sustaining
therapy.
[4]
The Appellant
represented himself. He stated that he is sixty-four and he is living with
human immunodeficiency virus (“HIV”) and acquired immune deficiency syndrome
(“AIDS”). He contracted HIV through a blood transfusion in 1980 and he was
diagnosed in December 1995 to have AIDS. He explained that his condition has
deteriorated significantly since that time. In 2005 the Appellant’s medical
treatment included monthly blood tests. He stated that in 2005 he also took 29
different medications twice a day. The medications were pills and creams and it
took him about 1 hour daily to self-administer the medications. His evidence
was that his medications changed on an annual basis because they became
ineffective. He stated that the medications control the virus but damage his
body.
[5]
The Appellant testified
that he has to perform a regimen of exercises that was given to him by a
physiotherapist. These exercises help him to stay mobile and to function. He
explained that without these exercises he would be unable to move on his own.
At the hearing the Appellant estimated that he spent more than 4 hours a day
doing exercises whereas in his Notice of Appeal he stated that he spent 2 hours
every day doing exercises. It was the Appellant’s position in his Notice of
Appeal and at the hearing that his medication and exercise regimen constituted
life-sustaining therapy.
[6]
Dr. Howard Conter, the
Appellant’s family physician, explained in a letter that aside from AIDS the
Appellant also has ischemic heart disease for which he had an angioplasty in
2006 with a placement of stents. Dr. Conter did not appear as a witness at the
hearing.
[7]
On cross examination
the Appellant was questioned about his ability to perform the basic activities
of daily living as that phrase is defined in the Income Tax Act (the “Act”).
The Appellant said that in 2005 he was incontinent of both bladder and bowel
functions. There were occasions when he could not leave his home because he
suffered from diarrhea. He started to wear incontinence pads in 2005 and he
wears them today. The medications caused him to have dementia and in 2004 and
2005 he attended psychotherapy to get his mind to function. The Appellant
developed cataracts as a result of the virus and the medications. In 2005 he
had the cataracts removed.
[8]
The Disability Tax
Credit Certificate (the “Certificate”) that was filed with the Minister was
completed by Dr. Conter. In Part B of the Certificate he indicated that the
Appellant was not markedly restricted in any of the basic activities of daily
living. He did indicate that the Appellant met the conditions for
life-sustaining therapy as he has HIV-AIDS and must take a “cocktail of
anti-HIV drugs plus followup”. Dr. Conter certified that the Appellant has at
least one impairment in physical or mental functions that has lasted for a
continuous period of at least 12 months; that with appropriate therapy,
medication, and devices, the impairment has resulted in a significant restriction
that is not quite a marked restriction in two or more basic activities of daily
living; that these restrictions exist all or substantially all of the time; and
that, the cumulative effect of these significant restrictions is equivalent to
a marked restriction in a single basic activity of daily living. However, he
was required to indicate which basic activities of daily living were
significantly restricted. This he failed to do. Instead, he wrote “Life
sustaining therapy” on the form.
[9]
The relevant statutory
provisions are as follows:
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
(i) a sight impairment, an optometrist,
(ii) a speech impairment, a speech-language
pathologist,
(iii) a hearing impairment, an audiologist,
(iv) an impairment with respect to an
individual’s ability in feeding or dressing themself, an occupational
therapist,
(v) an impairment with respect to an
individual’s ability in walking, an occupational therapist, or after February
22, 2005, a physiotherapist, and
(vi) an impairment with respect to an
individual’s ability in mental functions necessary for everyday life, a
psychologist,
(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,
has certified in prescribed form that the impairment
is a severe and prolonged mental or physical impairment the effects of which
are such that the individual’s ability to perform a basic activity of daily
living is markedly restricted or would be markedly restricted but for therapy
referred to in paragraph (a.1),
(b) the individual has filed
for a taxation year with the Minister the certificate described in paragraph (a.2)
or (a.3)
…
Time spent on therapy
(1.1) For the purpose of paragraph 118.3(1)(a.1),
in determining whether therapy is required to be administered at least three
times each week for a total duration averaging not less than an average of 14
hours a week, the time spent on administering therapy
(a) includes only time spent on activities
that require the individual to take time away from normal everyday activities
in order to receive the therapy;
(b) in the case of therapy that requires a
regular dosage of medication that is required to be adjusted on a daily basis,
includes (subject to paragraph (d)) time spent on activities that are
directly related to the determination of the dosage of the medication;
(c) in the case of a child who is unable to
perform the activities related to the administration of the therapy as a result
of the child’s age, includes the time, if any, spent by the child’s primary
caregivers performing or supervising those activities for the child; and
(d) does not include time spent on activities
related to dietary or exercise restrictions or regimes (even if those
restrictions or regimes are a factor in determining the daily dosage of
medication), travel time, medical appointments, shopping for medication or
recuperation after therapy.
…
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) an individual is
considered to have the equivalent of a marked restriction in a basic activity
of daily living only where all or substantially all of the time, even with
therapy and the use of appropriate devices and medication, the individual’s
ability to perform more than one basic activity of daily living (including for
this purpose, the ability to see) is significantly restricted, and the
cumulative effect of those restrictions is tantamount to the individual’s
ability to perform a basic activity of daily living being markedly restricted;
(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; and
(e)
feeding oneself does not include
(i) any of the activities of
identifying, finding, shopping for or otherwise procuring food, or
(ii) the activity of preparing food to
the extent that the time associated with the activity would not have been
necessary in the absence of a dietary restriction or regime; and
(f) dressing oneself does not
include any of the activities of identifying, finding, shopping for or
otherwise procuring clothing
[10]
The Federal Court of Appeal in MacIsaac
v. Canada[i]
emphasized that not only must the prescribed certificate be filed but that
the certificate must satisfy the language of the legislation. In paragraph 5
Justice Sexton stated:
5 While
we sympathize with both Respondents and with the position taken by the Tax
Court Judge we cannot agree with him on this question. 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. This Court held to the same
effect in Partanen v. R. (1999), 99 D.T.C. 5436 (Fed. C.A.) and we feel
bound by this decision.
[11]
The Certificate filed with the
Minister must specify the activity or activities of daily living which are
impaired and which result in a significant restriction. This Dr. Conter failed
to do.
[12]
In addition, based on the evidence
presented, the Appellant does not meet the requirements of paragraph 118.3(1)(a.1)
of the Act. Although Dr. Conter has certified that the medications which
the Appellant took are a life-sustaining therapy, the Appellant’s evidence
establishes that they were not administered for a total duration averaging not
less than 14 hours a week. The time spent by the Appellant in performing his
exercises is not included in the calculation of the time spent in administering
therapy in accordance with paragraph 118.3(1.1)(d) of the Act. It
was the Appellant’s evidence that it took him 7 hours a week to administer his
medications.
[13]
The appeal is dismissed.
Signed at Ottawa, Canada, this 11th
day of September 2008.
“V.A. Miller”
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