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Citation: 2006TCC493
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Date: 20060926
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Docket: 2004-4712(IT)I
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BETWEEN:
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JASON GOURLAY,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
Little J.
A. FACTS
[1] The Appellant resides in Kamloops, British Columbia.
[2] Dr. David Worling, a Registered Psychologist, completed Form 2201, (a Disability Tax Credit Certificate), on or about July 10, 2003 (the "Certificate"). In the Certificate Dr. Worling stated that the Appellant had "severe dyslexia and learning disability" (Exhibit A-6).
[3] In the Certificate Dr. Worling answered "NO" to the following question: "Can your patient (i.e. the Appellant) perceive, think or remember?"
[4] Dr. Worling also completed a questionnaire that was sent to him by J. Nanson of the Canada Revenue Agency ("CRA") on September 30, 2003 (Exhibit R-2). In the questionnaire Dr. Worling answered the following questions:
Mental Functions: (Adult):
Can your patient perform daily living skills (e.g. simple chores,
personal hygiene, go out in the community, make simple
purchases) without the assistance/supervision of another person?
Yes √ No
Please explain and indicate if assistance/supervision is required.
_____________________________________________________
_____________________________________________________
Can your patient make appropriate decisions and judgements
in day-to-day situations?
Yes √ No
Please explain and indicate any safety concerns, if applicable.
____________________________________________________
____________________________________________________
Does your patient require frequent reminders or excessive use of memory
aids on a daily basis (e.g. step by step instructions to perform routine
activities, or detailed written instructions to get to familiar places) ?
Yes √ No
Please give examples.
Severe difficulties with reading & therefore
required to memorize instructions.
Can your patient live independently (WITHOUT daily supervision
from family or the community) ?
Yes No √
To the best of your knowledge, are the limitations described in the
previous questions present all or almost all of the time ?
Yes √ No
Please state the year(s) or period(s) of time for which that was the case.
___________________________________________________________
___________________________________________________________
Is your patient's ability to perceive, think, and remember likely to
improve ?
Yes No √
If yes, please give the year you expect this change. ________________
__________________________________________________________
Please give any comments that may help to clarify the effects of your
patient's impairment as it affects his/her ability to think, perceive, and
remember.
Despite treatments the patient has an extreme disability that affects
his ability to read new / complicated material e.g. prescriptions,
memos, etc.
What is the nature of your patient's impairment ?
Severe Dyslexia.
Has your patient's marked restriction in a basic activity of daily living
lasted, or it expected to last, for a continuous period of at least 12 months ?
Yes √ No
Please state the approximate date when your patient began having severe
Functional limitations.
School years - grade 1.____________________
Is it reasonable to expect that your patient's condition will improve
sufficiently such that he/she will no longer be markedly restricted in any
of the basic activities of daily living ?
Yes No √
If yes, please indicate the year in which you would expect the marked
restriction to cease. ________________________________________
_________________________________________________________
Did your patient meet the normal milestones of language development ?
Yes No √
[5] On or about July 21, 2003 the Appellant submitted Form T2201 to the CRA and requested that his 2002 and 2003 taxation years be reassessed to allow him to claim the Disability Tax Credit ("DTC").
[6] The Minister of National Revenue (the "Minister") denied the Appellant's request for a DTC for the 2002 and 2003 taxation years.
B. ISSUE
[7] The issue is whether the Appellant is entitled to claim the DTC for the 2002 and 2003 taxation years.
C. ANALYSIS AND DECISION
[8] Subsection 118.3(1) reads as follows:
118.3(1) Where
(a) an individual has a severe and prolonged mental or physical impairment,
(a.1) the effects of the impairment are such that the individual's ability to perform a basic activity of daily living is markedly restricted 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
(i) a sight impairment, a medical doctor or an optometrist,
(i.1) a speech impairment, a medical doctor or a speech-language pathologist,
(ii) a hearing impairment, a medical doctor or an audiologist,
(iii) an impairment with respect to an individual's ability in feeding and dressing themself, or in walking, a medical doctor or an occupational therapist,
(iv) an impairment with respect to an individual's ability in perceiving, thinking and remembering, a medical doctor or a psychologist, and
(v) an impairment not referred to in any of subparagraphs (i) to (iv), a medical doctor
has certified in prescribed form that the impairment is a severe and prolonged mental or physical impairment the effects of which are such that the individual's ability to perform a basic activity of daily living is markedly restricted 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), and
(c) no amount in respect remuneration for an attendant or care in a nursing home, in respect of the individual, is included in calculating a deduction under section 118.2 (otherwise than because of paragraph 118.2(2)(b.1)) for the year by the individual or by any other person,
there may be deducted in computing the individual's tax payable under this Part for the year the amount determined by the formula
A X (B + C)
where
A is the appropriate percentage for the year,
B is $6,000, and
C is
(a) where the individual has no attained the age of 18 years before the end of the year, the amount, if any, by which
(i) $3,500
exceeds
(ii) the amount, if any, by which
(A) the total of all amounts each of which is an amount paid in the year for the care or supervision of the individual and included in computing a deduction under section 63, 64 or 118.2 for a taxation year
exceeds
(B) $2,050, and
(b) in any other case, zero.
[9] Subsection 118.4(1) reads as follows:
118.4(1) For the purposes of subsection 6(16), sections 118.2 and 118.3 and this subsection,
(a) an impairment is prolonged where it has lasted, or can reasonably be expected to last, for a continuous period of at least 12 months;
(b) an individual's ability to perform a basic activity of daily living is markedly restricted only where all or substantially all of the time, even with therapy and the use of appropriate devices and medication, the individual is blind or is unable (or requires an inordinate amount of time) to perform a basic activity of daily living;
(c) a basic activity of daily living in relation to an individual means
(i) perceiving, thinking and remembering,
(ii) feeding and dressing oneself,
(iii) speaking so as to be understood, in a quiet setting, by another person familiar with the individual,
(iv) hearing so as to understand, in a quiet setting, another person familiar with the individual,
(v) eliminating (bowel or bladder functions), or
(vi) walking; and
(d) for greater certainty, no other activity, including working, housekeeping or a social or recreational activity, shall be considered as a basic activity of daily living.
[10] In this situation the Minister concluded that based on his review and analysis there was an indication that the Appellant can perform the basic activities of daily living without requiring an inordinate amount of time.
[11] Subsection 118.4(1) of the Act states that a basic activity of daily living in relation to an individual means
(i) perceiving, thinking and remembering;
(ii) feeding and dressing oneself;
(iii) speaking so as to be understood, in a quiet setting, by another person familiar with the individual;
(iv) hearing so as to be understood, in a quiet setting, by another person familiar with the individual;
(v) eliminating (bowel and bladder functions); or
(vi) walking.
[12] In considering the claim made by the Appellant we are talking about the basic activities of "perceiving, thinking and remembering".
[13] In Radage v. Canada, [1996] T.C.J. No. 730 Bowman J. (now Chief Justice Bowman) said:
(d) The provisional meanings assigned above to the words "perceiving, thinking and remembering" are more in the nature of guidelines than definitions. They are:
Perceiving: The reception and recognition of sensory data about the external world that conforms reasonably to common human experience.
Thinking: A rational comprehension, marshalling, analysis and organization of that which the person has perceived and the formulation of conclusions therefrom that are of practical utility or theoretical validity.
Remembering:The mental activity of storing perceived data and of retrieving it in a manner that enables the person reasonably to perform the function of thinking.
[14] "Dyslexia" is defined in the Canadian Oxford Dictionary as follows:
noun - a general term for disorders that involve difficulty in learning to read or interpret words, letters and other symbols, but that do not affect general intelligence.
[15] The Appellant has a valid unrestricted driver's licence issued by the Province of British Columbia (Exhibit R-1) and the Appellant is able to drive to and from work in his automobile.
[16] The Appellant works as a labourer at a sawmill in Savana, British Columbia.
[17] The Appellant lives with a roommate in a home that is owned by the Appellant.
[18] The Appellant testified that he has played hockey for a number of teams including a semi-professional team located in Birmingham, England.
[19] The Appellant testified that he is able to shop for his groceries and personal items but that he has difficulty dealing with his personal banking without assistance from a bank employee.
[20] In Johnstonv. Canada, [1998] F.C.J. No. 169, Mr. Justice Letourneau of the Federal Court of Appeal said:
Purpose and History of the Legislation
10. The purpose of sections 118.3 and 118.4 is not to indemnify a person who suffers from a severe and prolonged mental or physical impairment, but to financially assist him or her in hearing the additional costs of living and working generated by the impairment. As Bowman T.C.J. wrote in Radage v. R. [See Note 1 below] at p. 2528:
Note 1: [1996] 3 C.T.C. 2510.
The legislative intent appears to be to provide a modest amount of tax 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 everyone 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.
The learned Judge went on to add, at p. 2529, and I agree with him:
...If the object of Parliament, which is to give to disabled persons a measure of relief that will to some degree alleviate the increased difficulties under which their impairment forces them to live, is to be achieved the provision must be given a humane and compassionate construction.
11. Indeed, although the scope of these provisions is limited in their application to severely impaired persons, they must not be interpreted so restrictively as to negate or compromise the legislative intent.
...
Test to be met by a claimant
16. In order to benefit from the tax credit under s. 118.3, a taxpayer suffering from a severe and prolonged physical impairment has to establish that his ability to perform a basic activity of daily living is markedly restricted.
17. The expression "markedly restricted" has been defined to refer to an individual's inability, at all or substantially all of the time, even with therapy and the use of appropriate device and medication, to perform a basic activity of daily living. An individual's ability is also deemed to be markedly restricted if he requires an inordinate amount of time to perform such activity.
18. No definition has been given of what constitutes an inordinate amount of time in the performance of the basic activities of daily living. In my view, the expression "inordinate amount of time" prefers to an excessive amount of time, that is to say one much longer than what is usually required by normal people. It requires a marked departure from normality.
[21] From an analysis of the relevant legislation and the Court decisions on this issue it is apparent that the disability tax credit may be claimed by an individual who has a severe and prolonged mental or physical impairment which has been validated by a medical practitioner as being 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 would be markedly restricted but for life sustaining therapy.
[22] As noted above, Justice Letourneau said in Johnston v. Canada[1] that a taxpayer claiming a tax credit under section 118.3 must establish that his "ability to perform a basic activity of daily living is markedly restricted" (underlining added).
[23] Based on the evidence before me I have concluded that the Appellant does not qualify for the disability tax credit because I am not convinced that the Appellant's ability to think, perceive and remember is severe enough to establish that he is markedly restricted.
[24] The appeal is dismissed without costs.
[25] Before concluding my comments I wish to state that I have the utmost sympathy for the Appellant. He is a very impressive young man. However, my responsibility is to interpret the legislation. I do not have the authority to amend the Income Tax Act to provide that individuals who suffer from Dyslexia may claim a disability tax credit.
Signed at Vancouver, British Columbia, this 26th day of September 2006.
Little J.
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