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Docket: 2003-1106(IT)I
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BETWEEN:
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RÉAL MURRAY,
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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]
__________________________________________________________________
Appeal heard on November 4, 2004, at Roberval,
Quebec.
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Before: The Honourable Justice Alain Tardif
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Appearances:
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For the Appellant:
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The Appellant himself
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Counsel for the Respondent:
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Emmanuelle Faulkner
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____________________________________________________________________
JUDGMENT
The
appeal from the assessment made under the Income Tax Act
for the 2001 taxation year is dismissed in accordance with the
attached Reasons for Judgment.
Signed at Ottawa, Canada, this 6th day of December 2004.
Tardif J.
Translation certified true
on this 3rd day of March 2005
Jacques Deschênes, Translator
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Citation: 2004TCC752
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Date: 20041206
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Docket: 2003-1106(IT)I
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BETWEEN:
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RÉAL MURRAY,
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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
Tardif J.
[1] This appeal pertains to the 2001
taxation year. The issue is whether the Minister of National
Revenue properly disallowed a disability credit claimed by the
appellant.
[2] The appellant represented himself,
and expressed himself with great ease. He explained all the
reasons that led him to appeal the assessment.
[3] The fact that the appellant
suffered from a significant disability is not in doubt because
the Régie des Rentes du Québec recognized his
permanent total disability and he is receiving a disability
pension.
[4] However, he has managed to
function well even though he must take a significant amount of
medication. He lives alone and independently in his apartment. He
has no automobile, but he does have a driver's licence on
which the only restriction is a requirement to wear corrective
glasses.
[5] He explained that on some days,
intense back pain, which requires him to take
anti-inflammatories, made it difficult for him to begin
activities. He is also on antidepressants and medication for high
blood pressure.
[6] Based merely on seeing the
appellant at the hearing, it is clear that he was not eligible
for the credit in question at the time. However, the credit
claimed is for the taxation year 2001, not the current year.
[7] In support of his claim for the
credit, the appellant had to produce a medical assessment by his
physician, but the answers that the physician provided to the
questions confirm that the appellant was not entitled to the
credit. I reproduce here the questions and the answers
obtained:
[TRANSLATION]
. . .
Can your patient see? Yes.
Can your patient walk? Yes.
Can your patient speak? Yes.
Can your patient perceive, think and remember? Yes.
Can your patient hear? Yes.
Can your patient feed or dress himself or herself? Yes.
Can your patient personally manage bowel and bladder
functions? Yes.
. . .
Does your patient meet these conditions for
life-sustaining therapy? No.
[8] Dr. Jacqueline Lacasse also
answered the questions addressed to her by the Canada Customs and
Revenue Agency on August 9, 2002. The questions and
answers were as follows:
[TRANSLATION]
. . .
Was your patient oriented to the three spheres (person, place,
and time)? Yes.
Did your patient understand the concept of danger? Yes.
. . .
Was your patient able to retain instructions/information
conveyed to him/her during appointments at your office? Yes.
Was your patient able to perform his/her personal hygiene
(without assistance or supervision)? Yes.
. . .
Did your patient's mental impairment restrict his/her
ability to live independently? No.
Could your patient make a simple purchase independently?
Yes.
. . .
Did your patient require medication and/or therapy? No.
Was your patient's ability to think, perceive and remember
improved with medication and therapy? Please explain: Does not
require medication [illegible word]
Do you expect the severity of your patient's functional
limitations will change? No.
. . .
[9] Sections 118.3 and 118.4 of the
Income Tax Act read as follows:
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(a)
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an individual has a severe and prolonged mental or
physical impairment,
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(a.1)
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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,
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(a.2)
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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 or 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),
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(b)
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the individual has filed for a taxation year with the
Minister the certificate described in paragraph
118.3(1)(a.2), and
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(c)
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no amount in respect of 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 . . .
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. . .
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118.4(1) For the purposes of subsection
6(16), sections 118.2 and 118.3 and this subsection,
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(a)
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an impairment is prolonged where it has lasted, or can
reasonably be expected to last, for a continuous period of
at least 12 months;
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(b)
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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;
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(c)
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a basic activity of daily living in relation to an
individual means
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(i)
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perceiving, thinking and remembering,
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(ii)
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feeding oneself or dressing onself,
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(iii)
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speaking so as to be understood, in a quiet setting, by
another person familiar with the individual,
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(iv)
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hearing so as to understand, in a quiet setting, another
person familiar with the individual,
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(v)
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eliminating (bowel or bladder functions), or
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(vi)
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walking,
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(d)
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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
. . .
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[10] In MacIsaacc.
Canada, [1999] F.C.J. No. 1898 (QL), Sexton
J.A. stated as follows:
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. Canada, [1999]
F.C.J. 751 and we feel bound by this decision.
6 It is
not obvious that putting the questions as they are in this form
results in a thorough consideration by the doctor of the
questions confronting him. Putting checks in boxes is
perhaps not the best way of eliciting a just result.
Nevertheless the Act requires such certificates as a prerequisite
to obtaining disability tax credits.
[11] Although it is not easy to answer the
questions generally raised by the form, the answers have a
decisive effect on eligibility for the disability tax credit. In
the instant case, it has been made patently clear that the
appellant did not meet the eligibility criteria for the credit.
In fact, the answers provided by his primary care physician are
consistent with what the Court observed at the hearing.
[12] For the period in issue, namely the
2001 taxation year, the preponderance of the evidence, both from
the appellant's testimony and from the opinion of his primary
care physician, discloses that the appellant was an independent
and able to look after himself. He had to take several
medications, but he was functional. He had, at all times,
had the physical and mental abilities needed to carry out all the
basic activities of daily living without requiring an inordinate
amount of time, as contemplated in the provisions of the
Income Tax Act:
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(i)
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perceiving, thinking and remembering,
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(ii)
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feeding and dressing oneself,
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(iii)
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speaking so as to be understood, in a
quiet place, by another person familiar with the
individual,
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(iv)
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hearing so as to understand, in a quiet
setting, another person familiar with the individual,
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(v)
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eliminating (bowel or bladder functions),
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(vi)
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walking,
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[13] Consequently, the appeal must be
dismissed.
Signed at Ottawa, Canada, this 6th day of December 2004.
Tardif J.
Translation certified true
on this 3rd day of March 2005
Jacques Deschênes, Translator
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