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Citation: 2003TCC944
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Date: 20031222
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Docket: 2002-3014(IT)I
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BETWEEN:
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PEGGY DOE*,
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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
Rip, J.
[1] Peggy Doe has appealed assessments
of tax for 2000 and 2001 claiming a disability tax credit
("DTC") pursuant to section 118.3 of the
Income Tax Act. Apparently she has not filed a notice
of objection with respect to the year 2001. I advised her that
the appeal for the 2001 taxation year would be quashed.
[2] The Minister disallowed the claim
by Ms. Doe on the basis that she was not suffering from a severe
or prolonged mental or physical impairment, the effects of which
were such that her inability to perform a basic activity of daily
living was markedly restricted all or substantially all of the
time, even with therapy and the use of appropriate devices and
medication, within the meaning of subparagraph 118.4(1) of the
Act.
[3] In 1998 Ms. Doe was diagnosed with
epilepsy. Since that time she has suffered from severe seizures
that are resistant to treatment. In 1993 she began a series of
bone-grafting surgeries to reconstruct her jaw; this has lead to
erosion of the right side of her face.
[4] The Crown produced the Disability
Tax Credit certificate ("DTC certificate") filed
by Ms. Doe and completed by Dr. B. Woodside, a psychiatrist.
Dr. Woodside answered in the affirmative each of the questions
posed in the questionnaire part of the DTC certificate, namely
that Ms. Doe can see, walk, speak, perceive, think and remember,
hear, feed and dress herself and can personally manage bowel and
bladder functions. However, he noted that "Ms. Doe has
idiopathic epilepsy which is responding poorly to treatment and
which represents a significant impairment for her".
[5] Dr. Woodside was not present at
trial. Ms. Doe confirmed that he checked the various boxes
confirming that she is able to perform all of the activities of
daily living. Apparently Ms. Doe asked Dr. Woodside to complete a
new certificate but, according to Ms. Doe, he refused to do so
because that would indicate that perhaps he made a mistake the
first time and in his view he made no mistake.
[6] Ms. Doe indicated that she was not
only under the care of Dr. Woodside but also of a
neurologist and "a lot of other doctors as well". Ms.
Doe indicated that she has difficulty coping with daily life and
indicated that she doubled her medication the night prior to
trial so that she would be able to attend trial without the
probability of having a seizure.
[7] Ms. Doe stated that she can take a
bath, cook and do many things but not on her own. For example,
she stated, "it is unwise for me to turn on burners or
anything involving heat that does not have a timer on it to shut
it off automatically". She also stated that while she baths
on her own, she either requires having someone in her apartment
who can make sure that she gets in and out of the bathtub without
difficulty, or she has to have a system in place whereby she
telephones someone advising that person that she is taking a bath
and if she does not phone them back within a limited time period
for that person attend at her home immediately to ensure that she
is not in danger.
[8] As far as preparation of food is
concerned Ms. Doe stated since her bone-grafting surgery
she has been on a semi-solid or liquid diet so not much is
required to prepare food. In the year 2000 she ate
semi-solid food such as scrambled eggs. She said that
during 2000 both she and neighbours prepared food for her. She
also had "Meals on Wheels" deliver her food or she
purchased "take-out stuff", which is the basis of
her diet. She also drank Ensure, which is a canned vitamin
supplement.
[9] In view of Dr. Woodside's
negative DTC certificate I indicated to Ms. Doe that I would
prefer to adjourn the hearing and have Dr. Woodside attend and
testify at a later date While I was impressed with the evidence I
heard, I was aware of the following comments of Stone, J. in
Buchanan v. R.[1]:
... the Court must be faithful to the words of the Income
Tax Act. The Act requires the positive certificate of a
physician. That means 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.
[10] Ms. Doe agreed and the matter was
adjourned to a later date at which time Dr. Woodside
appeared. Dr. Woodside is a past-president of the
Ontario Medical Association and is the current head of the
Canadian Psychiatric Association. He is currently practicing
at the Toronto General Hospital and he is an Associate Professor
of medicine at the University of Toronto. He has been
Ms. Doe's psychiatrist since 1983, treating her
primarily for her eating disorder, depression,
obsessive-complusive disorder and post-traumatic
stress disorder.
[11] Dr. Woodside described several of Ms.
Doe's psychiatric conditions affecting her ability to think,
perceive and remember. These are:
(a) Anorexia nervosa purging
subtype. An illness where individuals do not eat because of a
variety of psychological concerns. Dr. Woodside explained that as
a result of her anorexia nervosa over a long period, Ms. Doe
developed significant osteoporosis and lost all her teeth. She
has been undergoing dental treatment to try and have metal posts
implanted in her jaw so she can have permanent dentures
installed. The thinning of her bones has required numerous bone
grafts to establish adequate bone density in her upper and lower
jaw to sink the posts; these operations rendered her
"extremely" affected by her post-traumatic stress
disorder, including during 2000.
(b) Obsessive-compulsive
disorder. A condition where people continuously experience
obsessions and intrusive, unwanted thoughts that they cannot make
go away and struggle to avoid performing compulsive activities,
which includes things like hoarding, checking and ordering. Dr.
Woodside described Ms. Doe's obsessive-compulsive
disorder as continuous and that she has only had a partial
response to treatment over the past ten years. She does think
when suffering from obsessive compulsive-disorder,
Dr. Woodside acknowledged, but her thinking process would
not be described as normal by an average person;
(c) Post-tramatic stress
disorder. Ms. Doe's post-traumatic stress disorder is a
consequence of having been sexually and physically abused by a
family member for nearly 20 years and she experiences
flashbacks of the unwanted physical or sexual attention about 50%
of the days. When experiencing post-traumatic stress
disorder she thinks and perceives, but not in the way that a
normal person would identify as acceptable or normal in any way,
shape or form, Dr. Woodside declared.
[13] Dr. Woodside acknowledged that he is
not the physician in charge of her seizure disorder but is in
close communication with Ms. Doe's neurologist,
Cathy Zahn, who treats the disorder. Over the years, he
said, a number of neurologists have been involved in Ms.
Doe's case. He said that he is familiar with Ms. Doe's
status since she has attended at his clinic once every one or two
weeks. He advised that Ms. Doe has epileptic seizures two or
three times per week and sometimes as many as two per day.
Dr. Woodside estimated Ms. Doe was having seizures more than
once a day for more than half the year and it was rare for her
"to go more than two days" without a seizure. He stated
that sometimes she has to reschedule an appointment with him
because of a seizure.
[14] Ms. Doe, Dr. Woodside explained, has
temporal lobe epilepsy, a condition difficult to diagnose. He
described her seizures as "poorly controlled", a
reference to the frequency of seizures by Ms. Doe during 2000.
"In addition to the period when the seizure occurs, an
individual who has a seizure of the type that Ms. Doe has
will then experience a period of time after the seizure when they
are sedated, cannot speak, have to lie down and sit." This
is referred to medically as a "post-ictal" period which
"can go on for hours or up to a day where a patient's
ability to perform all basic activities of life is severely
impaired".
[15] During a "post-ictal" period,
Dr. Woodside stated, the person is essentially immobile.
"They may stagger around a little bit but they would be
unable to do any focused activity." Recovery is over the
course of a few hours to a few days. During 2000 Ms. Doe's
seizures were "extremely frequent". Dr. Woodside
recalled that she was compliant with the medication but the
seizures "couldn't be controlled. And she was
post-ictal, post-seizure, most of the time during that
year".
[16] Dr. Woodside described an individual
having as many frequent seizures as did Ms. Doe, to exist
"in a condition where they are continuously afraid for their
life". They require people to be present to take a bath, for
example. They risk having seizures at random, without warning,
Dr. Woodside declared.
[17] Respondent's counsel queried Dr.
Woodside with respect to specific defined activities of daily
living. In the DTC certificate Dr. Woodside acknowledged that Ms.
Doe could perceive, think and remember but at trial he opined
that the quality of her ability to perceive, think or remember is
markedly abnormal and "that nobody would acknowledge that it
was an acceptable way to perceive, think or remember". Dr.
Woodside compared Ms. Doe's "perceiving, thinking and
remembering" to what he considered normal and he considered
her thinking "out of the range of normal" continuously
throughout the year. He also questioned her ability to feed
herself, in particular, related to her past anorexia nervosa;
"she had a continuous struggle to decide that it was okay to
eat, which was a residual part of her illness". As far as
walking is concerned, Dr. Woodside said when Ms. Doe was
post-ictal, her walk was not normal, it was more of a stagger,
walking with a cane or holding the wall. Similarly, when
post-ictal, she may have spoken in a "slurred
fashion".
[18] Dr. Woodside's view is that the DTC
certificate does not take into account certain psychiatric
illnesses, in particular, the illness suffered by Ms. Doe.
In particular, when he completed the DTC certificate, he found
the DTC certificate obscure and not appropriate for mental
illness; it contains no established criteria for mental
impairment. The physician has to make a judgment call. In his
view, the effects of Ms. Doe's illness are such that her
ability to perform at least a basic activity of daily living is
markedly restricted, bearing in mind the criteria stated in
subsection 118.3(1).
[19] Ms. Doe is able to physically perform,
more or less, all of the basic activities of daily living defined
in paragraph 118.4(1)(c) of the Act. However, it is
quite apparent that the degree of her ability to perform those
activities in 2000 was seriously affected by the unpredictability
and frequency of her epileptic seizures. In other words, while
Ms. Doe may have been able to feed and dress herself, speak and
be heard and walk, for example, any such activity was liable to
be rudely interrupted by a seizure and be delayed during the
post-seizure period. In Ms. Doe's case the
seizures were - and are - frequent and, as Dr. Woodside
commented in the DTC certificate, she responds poorly to
treatment. Dr. Woodside inferred, and I concur with him, that
when a person like Ms. Doe does not know from one moment to
another when a seizure will occur - but knowing a seizure will
occur, even with medication - that person's ability to
perform any activity, including an activity of daily living, as
defined, is markedly restricted. This is compounded by her
various mental disorders which, in Dr. Woodside's opinion,
affected - and affect - her ability to think as a so-called
normal person would. All in all, Ms. Doe's physical and
mental impairments affected her ability to perceive, think and
remember for substantially all of the time during 2000. Dr.
Woodside's testimony should be treated as a positive
certificate.
[20] The appeal for 2000 is allowed, with
costs, if any; the appeal for 2001 must unfortunately be
quashed.
Signed at Ottawa, Canada, this 22nd day of
December, 2003.
Rip, J.
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