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Citation: 2004TCC593
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Date: 20041015
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Docket: 2003-4470(IT)I
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BETWEEN:
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GILLES BÉGIN,
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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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[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Archambault J.
[1] Mr. Gilles Bégin is
appealing from the tax assessments made for the 2000 and 2002
taxation years. At the outset of the hearing, counsel for Mr.
Bégin acknowledged that he had received the tax credit for
mental or physical impairment for 2000. The issue therefore
relates solely to Mr. Bégin's entitlement to that credit
for 2002.
[2] During the 2002 taxation year, Mr.
Bégin suffered from narcolepsy and, essentially, the issue
is to determine whether Mr. Bégin's ability to perform a
basic activity of daily living was markedly restricted during
that taxation year. The other conditions that must be met, listed
under subsection 118.3(1) of the Income Tax Act
(Act), were not at issue during the hearing. Specifically,
the fact that Mr. Bégin suffered from a severe and
prolonged mental impairment was not challenged. The fact that on
October 8, 1997, a doctor from the Sleep Clinic wrote that Mr.
Bégin appeared unable to continue working as a teacher
certainly suggests the severity of his impairment. Moreover, it
is recognized that this impairment has been ongoing for several
years.
[3] However, the Respondent maintains,
contrary to what is indicated by the general practitioner, Dr.
Lemaître-Auger, on the Disability Tax Credit
Certificate dated April 6, 2001, that Mr. Bégin was able
to think, perceive and remember.[1] Furthermore, the Respondent is challenging the
assessment made by that doctor, who indicated, in the
questionnaire filed under A-6, that Mr. Bégin's
ability to perceive, think and remember was markedly restricted.
On the questionnaire, care was taken to provide the following
explanations:
Answer yes only if, even with therapy, aids and
medication, your patient is unable to perceive, think or remember
(without taking an inordinate amount of time).
If your patient is unable to manage personal affairs (provide
himself or herself with food, clothing, etc.) or see to personal
care (feed, wash or dress himself or herself) without
supervision, we consider your patient's ability to be markedly
restricted.
[4] I should add that this was the
only activity of Mr. Bégin's daily living for which the
doctor answered "Yes." She indicated that none of his other
activities of daily living were markedly restricted.
Facts
[5] We will now examine the evidence.
Only Mr. Bégin testified at the hearing.
Mr. Bégin was born in 1937 and worked as a teacher
until 1990. His testimony revealed that he has suffered from
narcolepsy since his early 20s. To deal with the periods of
excessive sleepiness while teaching his students, he had
developed certain techniques, including getting up to open a
window. It should also be noted that Mr. Bégin resigned
from his teaching position in December 1990 because of pressure
from his principal, who threatened to dismiss him in June 1991
because of difficulty communicating with his students.[2] Rather than have to
face dismissal, he had instead decided to resign on December 5,
1990 (see Exhibit A-4).
[6] Narcolepsy is defined as a sleep
disorder, the symptoms of which include sleep attacks and
temporary paralysis. Dr. J. Paul Caldwell, in Sleep:
The Complete Guide to Sleep Disorders and a Better Night's
Sleep, Canadian Medical Association: Your Personal Health
Series, Key Porter Books, 1995, describes the four symptoms of
this disorder on pages 140-41:
. . . It was learned that there are four classical symptoms:
excessive daytime sleepiness with attacks of irresistible sleep,
drop attacks (cataplexy), sleep paralysis, and sleep-related
hallucinations. Many patients with narcolepsy do not have all
these symptoms, but all narcoleptics have excessive daytime
sleepiness - the tendency to fall asleep quickly when the
environment is quiet or nonstimulating.
[...]
All patients with narcolepsy have excessive daytime
somnolence, and most develop sleep attacks over the course of
many years.
[7] Citing a work by Drs. Montplaisir
and Godbout entitled Les troubles du sommeil et de la
vigilance, Mr. Bégin described having the following
symptoms when experiencing sleep attacks: decreased visual
activity, tunnel vision, misjudging distances, decreased
attention, decreased aural reception, impaired memory, impaired
judgment, motor difficulties. He wrote that excessive sleepiness
is frequent, persistent and occurs at all hours of the day and
that the decreased alertness and daytime sleepiness have adverse
effects on the socio-economic status and quality of life of
individuals.
[8] When cross-examined on this
description of the symptoms he experienced during the period in
question, Mr. Bégin acknowledged that they appeared when
he had his sleep attacks. He specified that those sleep attacks
could occur five or six times a day and last up to fifteen
minutes. They could occur twice in the morning and the afternoon
and once or twice in the evening. He could fall asleep while
eating or reading.
[9] It was not until 1995 that doctors
were able to identify the illness disrupting Mr. Bégin's
life. It was at that time that he saw Dr. Montplaisir at the
Montréal Sacred Heart Hospital Sleep Clinic, who diagnosed
narcolepsy. This final diagnosis was made after Mr. Bégin
underwent laboratory tests to measure his level of sleepiness.
During the tests, Mr. Bégin was under continuous
audio-visual surveillance for one night and five daytime naps in
accordance with the "iterative sleepiness test" (IST)
standard protocol. Dr. Montplaisir explained his diagnosis
as follows:
[TRANSLATION]
The daytime nap recording confirms, beyond all doubt, the
diagnosis of narcolepsy since the patient fell asleep, for each
of the five IST naps, on average within 2.8 minutes. The patient
also fell directly into REM sleep twice and is a carrier of the
HLA DR2 (DR15)-DQW1 antigen.
[10] Mr. Bégin underwent similar
tests two years later, in 1997, when he was re-examined by
Dr. Montplaisir. The 1997 recording took place over two days
because Mr. Bégin was on medication, namely
Ritalin SR, 20 mg.[3] The medication was being used to treat Mr.
Bégin's decreasing alertness due to the narcolepsy. The
tests took place over two nights and two days. An IST, conducted
over the course of the first day, was followed by a vigilance
test over the course of the second day. Dr. Lespérance
described the tests as follows:
[TRANSLATION]
[...] The test consisted of two nights, an iterative
sleepiness test over the course of the first day and a vigilance
test over the course of the second day. The nap tests measure the
ability to fall asleep, while the second day, the ability to stay
awake in a quiet, dark environment. Each therefore measures
different aspects of alertness. The second relates more to the
ability to engage in intellectual activities, such as those of a
teacher.
[11] Even under the effect of the 20-mg dose
of Ritalin SR, the average nap latency was approximately
7.6 minutes. The vigilance test found that
Mr. Bégin fell asleep within 20 minutes on
average, but during the first three naps, he fell asleep in less
than 10 minutes. Following these tests,
Dr. Lespérance concluded as follows:
[TRANSLATION]
My conclusion is that this patient currently appears to be
unable to continue working as a teacher. I will submit the
application to the Régie des rentes du Québec
later, once the patient is 60 years old.[4]
[12] To illustrate the effects of his
illness, Mr. Bégin stated that he had trouble remembering
things and that when he went grocery shopping, he had to bring a
shopping list. It was during this explanation that he stated that
he drove his own vehicle. Surprised that a person who is unable,
all or substantially all of the time, to perceive, think and
remember, without taking an inordinate amount of time, is able to
drive a vehicle, I asked him how the Société de
l'assurance automobile du Québec (SAAQ) could
have allowed him to keep his driver's licence.
Mr. Bégin then offered to provide the Court with the
medical examination report he had given to the SAAQ, which he did
by faxing[5] the
report dated May 2, 2003, completed by Dr.
Lemaître-Auger. In the report, she indicates that in
1997, Dr. Lespérance had deemed Mr. Bégin able
to drive. It was on the strength of that medical report that the
SAAQ informed Mr. Bégin on July 3, 2003, that they were
maintaining his current licence.
[13] Mr. Bégin, at the Court's
request, faxed Exhibit A-9, the medical report from Dr.
Lespérance dated November 19, 1997. In the report, Dr.
Lespérance provides the following medical history:
[TRANSLATION]
For several years, the patient has experienced excessive
daytime sleepiness that, unfortunately, had never been
specifically investigated. For this reason, no treatment had been
initiated. The excessive daytime sleepiness is such that the
patient can fall asleep at inappropriate times, and this has been
ongoing since his early twenties. The patient has long thought
that this was beyond his control. More recently, he decided to
consult a physician to be sure. Because the patient also
presented the symptoms of cataplexy-the weakening of muscle tone
brought on by certain emotions, such as anger, surprise, laughter
and joy-and hypnagogic hallucinations, a diagnosis of narcolepsy
had to be eliminated.
[14] The following description is found
under the heading "Physical and Mental Observations":
[TRANSLATION]
The prognosis for this condition is indefinite chronic
progression. The patient will not deteriorate, but neither has he
any chance of substantially improving his ability to be wakeful
and remain alert. This time we also tested the change in his
alertness under medication. The changes were slight;
specifically, I am referring to the vigilance test on the second
day of recording under medication. There remains a significant
degree of sleepiness despite an optimal dose of 20 mg of Ritalin
per day.
[15] In the same report, the doctor answers
"Yes" to the following questions: "Does the claimant have the
mental capacity to handle his affairs?" and "Is the claimant able
to drive a motor vehicle?" In the medical report dated November
19, 1997, submitted to the Régie des rentes du
Québec, Dr. Lespérance makes the following
observations:
[TRANSLATION]
Although one could imagine that this patient is able to
perform certain motor tasks, this difficulty in concentration and
alertness hampers, in my opinion, all tasks related to teaching.
I therefore find that even if he were able to carry out any
gainful employment for probably 35 hours, he could not do so
as a teacher or in an equivalent position. For these reasons, I
believe it is reasonable that the patient be considered a person
with a disability given [illegible] conditions with regard to the
Régie des rentes du Québec.
[16] Mr. Bégin stated that he could
feel the sleep attacks coming on and that he could therefore
allow himself to drive short distances. He did not, however, make
long trips. Moreover, he acknowledged that the symptoms described
above (impaired memory, decreased visual activity, decreased
aural reception, and motor difficulties) occurred during those
sleep attacks and that he was able to function normally the rest
of the time.
[17] In a letter dated June 22, 2001
(Exhibit A-9), addressed to the Canada Customs and
Revenue Agency (CCRA), Mr. Bégin provides this
explanation:
[TRANSLATION]
[...]
During an attack of cataplexy:
(1) Vision
becomes blurred and eyelids drop, eyes roll back.
(2) Walking
requires holding on before bending and standing still.
(3) Speech is
illogical even though senses remain active ... language remains
irrational.
(4) Mental
faculties (perceiving, thinking and remembering) are
seriously affected by this decrease in alertness and
concentration.
[18] I therefore conclude that, although Mr.
Bégin does indeed suffer from a severe and prolonged
illness, the effects of that illness are not such that he is
unable all or substantially all of the time to perform, without
taking an inordinate amount of time, a basic activity of daily
living, specifically, in this case, perceiving, thinking and
remembering. I should point out that on the morning of the
hearing, Mr. Bégin awoke at 6:30 a.m., began testifying at
9:30 a.m., and finished testifying around 11:30 a.m. He stated
during his testimony that, during the break, he had taken a brief
nap for a few minutes. During the argument, I noticed that Mr.
Bégin was holding his head in both hands and that he
appeared to be dozing, although I cannot be certain of this.
[19] However, while testifying, he was able
to clearly answer the questions he was asked. He was able to
explain clearly to the Court the symptoms of his illness and was
able to refer to the tests conducted in 1995 and 1997, to relate
the steps that led to his diagnosis in 1995, etc.
[20] There is no doubt that when a person
sleeps, they are unable to exercise their faculties to think,
perceive and remember. However, in the case of
Mr. Bégin, the periods of irresistible sleep, added
to the normal periods in which a person not suffering from
narcolepsy sleeps, represent in all an additional hour and a half
a day. An hour and a half accounts for 6.3% of a 24-hour
day. If we look at that hour and a half in a 16-hour period
as opposed to 24, the percentage is 9.4%. There is no doubt that,
unlike those who do not suffer from this type of illness, Mr.
Bégin's life is disrupted by the fact that he is overcome
by irresistible sleep attacks. Such a circumstance can complicate
the professional life of a person teaching young students.
[21] However, I cannot conclude that Mr.
Bégin was unable all or substantially all of the time to
perceive, think and remember in 2002, the period in question.
Aside from the hour and a half periods of necessary napping and
uncontrollable sleep, Mr. Bégin could think, perceive
and remember. Moreover, how could the SAAQ have allowed Mr.
Bégin to keep his driver's licence if he had been unable,
all or substantially all of the time, without taking an
inordinate amount of time, to perceive, think and remember? If
Mr. Bégin had indeed experienced a decrease in visual
activity, was unable to accurately justice distances, experienced
decreased attention, decreased aural reception, and impaired
judgment, how could he drive a vehicle? Moreover, according to
Dr. Lemaître-Auger, Dr. Lespérance had
concluded in 1997 that Mr. Bégin was able to drive. It is
astonishing, in my humble opinion, that a doctor, in two separate
medical reports, could conclude that Mr. Bégin is able to
drive a vehicle and yet was unable all or substantially all of
the time to perceive, think and remember, even with medication,
and that he was unable to manage personal affairs (provide
himself with food, clothing) or see to personal care (feed, wash
or dress himself) without supervision.
[22] Human nature being what it is, it would
seem that doctors, pressured by their patients seeking to take
advantage of the financial benefits provided for in certain Acts,
have difficulty refusing the demands made to them by those
patients. In my opinion, while it is true that the provisions of
the Act must be interpreted compassionately,[6] this does not mean that they
should be interpreted complacently. As far as I am concerned, I
have no other choice but to find that Mr. Bégin did not
meet all of the conditions required by the Act to be entitled to
the tax credit for mental or physical impairment.
[23] For all of these reasons, Mr.
Bégin's appeals are dismissed.
Signed at Ottawa, Canada, this 15th day of
October 2004.
Archambault J.
Translation certified true
on this 26th day of January 2005.
Colette Dupuis-Beaulne, Translator
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