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Citation: 2003TCC753
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Date: 20031024
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Docket: 2003-337(IT)I
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BETWEEN:
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ENRICO GRANDE,
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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] In 1989 the Appellant was advised
by his family physician that he had a serious kidney disease and
that he would have to use a dialysis machine.
[2] From 1989 to 1994 the Appellant
attended a medical clinic and obtained regular treatment from a
dialysis machine.
[3] In June 1994 the Appellant
received a renal transplant at St. Michael's Hospital in
Toronto.
[4] By letter dated August 14, 2003
(Exhibit R-3) Dr. Steven E. Rubenzahl advised as follows:
I have been asked to submit a statement regarding Mr.
Grande's medical state as it pertains to an application for
disability tax credit. The specific issue seems to surround
whether or not he receives life-sustaining therapy. I am a family
practitioner licensed in the province of Ontario since 1990. I
have been Mr. Grande's family doctor since July of 1994. He
received a renal transplant at St. Michael's hospital in
June of 1994. Since that time he has had numerous complicated
health issues such as hyperparathyroidism requiring
parathyroidectomy in 1994, atrial fibrillation which resolved,
chronic liver condition requiring medication, peptic ulcers, skin
cancers, elevated cholesterol and blood pressure, colon polyps
requiring a colectomy in 1999. Mr. Grande requires ongoing
medical surveillance for his renal graft. He is taking lifelong
immunosuppressives which are prednisone, imuran and
cyclophosphamide as well as blood pressure and liver
medication.
As I see it, these treatments and the ongoing supervision
thereof by the transplant clinic and myself do constitute life
saving interventions. Without it he would no doubt develop lethal
complications. The specific question of frequency and duration
which is asked in the act is difficult because these are
considered ongoing interventions and thus I cannot quantify them
in a simple fashion as one could for dialysis treatments, for
example. Thus I must leave this detail of interpretation up to
the court to clarify. I trust this clarifies the relevant
issues.
Yours Sincerely,
Steven Rubenzahl
[5] When the Appellant commenced to
receive dialysis treatment in 1989 he applied for and received a
disability tax credit in each taxation year from 1989 to
2000.
[6] When the Appellant filed his
income tax return for the 2001 taxation year he applied for a
disability tax credit.
[7] By Notice of Reassessment dated
June 13, 2002 the Minister of National Revenue (the
"Minister") disallowed the disability tax credit that
was claimed by the Appellant in the 2001 taxation year.
B. ISSUE:
[8] The issue is whether the Appellant
is entitled to claim a disability tax credit in the 2001 taxation
year.
C. ANALYSIS:
[9] Counsel for the Respondent filed
with the Court a copy of the Disability Tax Credit Certificate
that was signed by the Appellant (Exhibit R-2). The Certificate
was signed by Dr. Rubenzahl (the Appellant's family
physician).
[10] The questions in the Certificate were
answered as follows:
- 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?
YES
- Can your patient personally manage bowel and bladder
functions?
YES
[11] The Certificate also contained the
following question:
- If your patient needs life-sustaining therapy to support a
vital function, he or she may qualify for the disability amount,
even if the therapy has alleviated the condition. Your patient
must specifically dedicate the time needed for this therapy - at
least three times per week, to an average of at least 14 hours
per week.
Does your patient meet these conditions for life-sustaining
therapy?
YES
If YES, please specify the type of therapy.
Dr. Rubenzahl then made the following statement in the
Certificate: "Renal Transplant Recipient".
(Note: There is no reference in the Certificate to the
life-sustaining therapy that is referred to in the
Act.)
[12] Subparagraph 118.3(1)(a.1)(ii)
was added to the Act in the Federal Budget dated
February 28, 2000 effective for the 2000 and subsequent
taxation years. The Explanatory Notes issued by the Federal
Minister of Finance dated March 16, 2001 refer to this
amendment extending eligibility for the credit to persons who
must undergo therapy at least three times each week (for a total
period averaging at least 14 hours per week). The Explanatory
Notes state that examples of taxpayers who will benefit from this
extension include individuals with severe kidney disease
requiring dialysis.
[13] As is noted from the above facts the
Appellant required dialysis as a result of his kidney disease
from 1989 to 1994 when he received a renal transplant. The
Appellant did not receive dialysis treatment after he had
received the renal transplant in 1994.
[14] From the evidence that was presented to
the Court and an analysis of the documents that were filed with
the Court, I have concluded that in the 2001 taxation year the
Appellant did not require therapy that was essential to sustain a
vital function of the Appellant and which was required to be
administered at least three times each week for a total duration
averaging not less than 14 hours a week as required by
subparagraph 118.3(1)(a.1)(ii) of the Act.
[15] I have also concluded that in the 2001
taxation year, the Appellant was not suffering from a severe and
prolonged mental or physical impairment, the effects of which
were such that the ability of the Appellant to perform a basic
activity of daily living, within the meaning provided by section
118.4 of the Act, was markedly restricted all or
substantially all of the time. The comments made in the
Certificate (Exhibit R-2) support this conclusion.
[16] I have therefore determined that in
computing tax payable in the 2001 taxation year the
Appellant is not entitled to a tax credit in respect of a
disability amount as provided by subsection 118.3(1) of the
Act.
[17] I regret that I cannot find in favour
of the Appellant because it is apparent that the Appellant
suffers from a number of medical problems. However, my
responsibility is to interpret the words of the Act. The
words of the Act are very specific in dealing with those
who require kidney dialysis treatment and the Appellant does not
fit within those words.
[18] The appeal is dismissed without
costs.
Signed at Vancouver, British Columbia, this 24th day of
October 2003.
Little, J.
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