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Date: 20030121
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Docket: 2002-549(IT)I
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BETWEEN:
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SUSAN JASPER,
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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] Several doctors have determined
that the Appellant has significant chemical, environmental and
food sensitivities. Doctors have also determined that the
Appellant suffers from Fibromyalgia. The Appellant's medical
condition is hereinafter referred to as the "Medical
Condition".
[2] The Appellant's Medical
Condition was first diagnosed in 1987 and has persisted over the
years, i.e. the Appellant's Medical Condition is severe and
prolonged.
[3] The Appellant testified that due
to severe and life threatening reactions to certain foods she was
admitted to St. Joseph's Hospital in Comox on an emergency
basis on three separate occasions, the first in 1997, the second
in 1998 and in 1999. (See Exhibits A-1, A-2 and A-3.)
[4] The Medical Condition requires
that the Appellant maintain a daily journal containing
information on the food that she eats as well as the reaction
that she suffers when she consumes various types of food.
[5] The Appellant testified that the
Medical Condition restricts her ability to feed herself.
Officials of the Canada Customs and Revenue Agency (the
"CCRA") do not agree with this statement.
[6] The Appellant maintains that she
requires an inordinate amount of time to manage and maintain her
diet. Officials of the CCRA do not accept this statement. The
Appellant testified that because of her extreme sensitivity to
many foods she has determined that she tolerates some foods
better if she has six meals per day. This requirement means that
the Appellant has to lengthen the daily time required to prepare
and consume food.
[7] The Appellant maintains that she
suffers from an impairment that markedly restricts her ability to
perform the basic activities of daily living of feeding
herself.
[8] When the Appellant filed her
income tax return for the 2000 taxation year she claimed a
disability tax credit in the amount of $4,293.00 in respect of
the Medical Condition.
[9] By a Notice of Reassessment dated
the 16th day of July 2001 the Minister of National Revenue (the
"Minister") disallowed the disability tax credit.
B. ISSUE
[10] Is the Appellant entitled to the
disability tax credit in determining her income for the 2000
taxation year?
C. ANALYSIS
[11] When the Appellant filed her income tax
return for the 2000 taxation year she included with the tax
return a copy of a Disability Tax Credit Certificate (the
"Certificate") signed by Dr. Rick Potter-Cogan. Dr.
Potter-Cogan is the Appellant's family doctor.
[12] The Certificate contained the following
question:
Indicate medical diagnosis relevant and describing the
restriction ...
In answer to this question Dr. Potter-Cogan made the following
comment regarding the Appellant's Medical Condition:
Multiple food intolerances. Has a very restricted diet and has
to try and prepare special meals.
[13] The Certificate also contained nine
separate questions with the following heading:
Complete the boxes that apply.
Note: If your patient requires an inordinate amount of time to
perform one of these activities, answer "NO" to the
applicable question.
. . .
Question 6. Feeding and dressing
(a) Is your patient able to feed himself or herself using an
aid if necessary?
Dr. Potter-Cogan made the following note in the
Certificate:
Yes
No
√
√
[14] Dr. Potter-Cogan also made the
following comment in the Certificate:
This patient spends a lot of time searching for and preparing
a separate, special diet.
[15] The Certificate also contained the
following question:
9. Is the impairment severe enough to restrict the basic
activities of daily living identified above, all or almost all of
the time, even with therapy and the use of appropriate aids and
medications?
Dr. Potter-Cogan indicated YES in the Certificate and made the
following comment:
Cannot eat normally - needs special diet.
[16] Dr. Potter-Cogan was called as a
witness by counsel for the Respondent. Dr. Potter-Cogan
testified that he found some of the words in the Certificate
confusing and that is why he marked YES and NO in answer to
Question No. 6. He specifically stated that in his opinion
the Appellant was able to feed herself (i.e. the answer to this
question is "YES") but he also felt obliged to answer
"NO" to the question because in his opinion the
Appellant required an inordinate amount of time to feed
herself.
[17] In my opinion the Certificate provided
by Dr. Potter-Cogan and the explanation provided by Dr.
Potter-Cogan during his testimony satisfies the requirement
contained in paragraph 118.3(1)(a.2) of the Income Tax
Act (the "Act").
[18] I must now determine if the Appellant
qualifies under subsection 118.4(1) of the Act. This
subsection provides that the disability tax credit is available
to anyone with a severe and prolonged mental or physical
impairment that markedly restricted the person's ability to
perform a basic activity of daily living. A basic activity of
daily living is defined in subsection 118.4(1) to include feeding
oneself but to exclude working, housekeeping or a social or
recreational activity.
[19] A person's ability to feed oneself
is "markedly restricted" if, all or substantially all
of the time, the person is unable or requires an inordinate
amount of time to feed himself or herself.
Létourneau J.A., speaking for the majority of the
Federal Court of Appeal in Johnston v. Canada (1998), 223
N.R. 101, [1998] 2 C.T.C. 262, 98 DTC 6169, [2001] F.C.J. No. 169
(F.C.A.), said at paragraph 18:
... the expression "inordinate amount of time"
refers 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.
[20] In Radage v. Canada, [1996] 3
C.T.C. 2510, 96 DTC 1615, Judge Bowman of the Tax Court of
Canada explained the object of the disability tax credit as
follows at page 1625:
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.
[...]
... 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. ...
[21] I also refer to the statement of Bonner
T.C.J. in M.R. Hodgin v. The Queen, ([1995] E.T.C. 515,
[1995] T.C.J. No. 1183):
I turn next to feeding oneself. That involves, in my view,
something more than eating a meal prepared by another person. One
cannot feed oneself unless one is capable of taking basic food
stuffs in the form commonly available in a grocery store and
cooking or otherwise preparing and setting out a meal. The test
is feeding oneself, not simply eating a meal. The language of the
legislation is clear in that respect. The requisite ability to
feed oneself involves the ability to prepare a reasonable range
of food and not just to prepare and set out snacks, junk foods or
frozen dinners. Here the limitations on the movement of the
Appellant's hands required the assistance of her husband in
meal preparation to a degree that supports a conclusion that the
Appellant was incapable of feeding herself.
[22] In reaching my conclusion I have
reviewed in detail the comments made by
Madam Justice Sharlow in Hamilton v. Canada,
[2002] F.C.J. No. 422. In that case
Madam Justice Sharlow said at page 3:
The notion of feeding, in my view, also involves
the ability to prepare a meal which conforms to a medically
prescribed diet and medication which maintains one's state of
health or prevents its deterioration.
To limit the notion of feeding to the ability to
eat a meal is to overlook the objective of the statute which, it
bears repeating, is to financially assist those who, because of
their disability, require assistance in fulfilling such a basic
activity of daily living. To include the preparation of a
reasonable meal in the notion of feeding is, on the contrary,
fully consistent with such objective and the spirit of the
disability credit.
[23] At page 6 Sharlow J.A. said:
In my view, the legal question raised by this
case is whether, in the context of the disability tax credit
provisions of the Income Tax Act, the work required
to find and procure foods that can safely be eaten are properly
considered part of "food preparation", which the
jurisprudence has now established is an aspect of "feeding
oneself" under subsection 118.4(1). In this case,
Judge Campbell answered that question in the affirmative, as
have other Tax Court Judges in other cases (discussed below). I
respectfully agree with that conclusion. Anyone who has ever
prepared a meal must recognize that the process of food
preparation begins with choosing and procuring the food. No other
conclusion makes sense.
That is not the end of the debate, however. A
person with a medical condition that imposes dietary constraints
may claim that, because of those constraints, food procurement
takes an inordinate amount of time. If the existence of the
medical condition and the resulting dietary constraints are
established, it would then be a question of fact whether, for
that person, the time spent in finding and procuring a safe food
supply is excessive or inordinate in the sense of a marked
departure from the time spent by normal persons.
Thus, not everyone with celiac disease is
automatically entitled to the disability tax credit. Eligibility
for the disability tax credit would depend on the circumstances
of the claimant. The symptoms suffered in a particular case may
or may not be as severe as in the case of Mr. Hamilton, and
they may or may not require the person to take an inordinate
amount of time to procure food that can be safely ingested.
The critical role played by the evidence in each
case is illustrated by the jurisprudence in the Tax Court. Apart
from this case, there are five reported decisions of the Tax
Court involving persons claiming the disability tax credit on the
basis of a marked restriction in the ability to feed oneself.
Three claims succeeded, and two failed. As I read these cases,
differences in result are attributable primarily to the
evidence.
Where the time spent in food procurement was only
slightly more than normal or represented only increased
inconvenience, the person was held not to be entitled to the
disability tax credit: Hagen v. Canada, [1997] 3 T.C.C.
3128, [1997] T.C.J. No. 827 (T.C.C.) per Judge Bonner, and
McMaster v. Canada, [1999] 1 C.T.C. 2658, [1998] T.C.J.
No. 301 (T.C.C.) per Judge Lamarre Proulx. The
following appears at paragraph 14 in McMaster:
... if the foods that a person could eat were so rare that a
person had to spend an inordinate amount of time looking for
them, it would have to be concluded that looking for food was not
separate from the activity of feeding oneself. That is not the
case here, however. The suitable foods are not so rare that the
appellant can hardly find anything to eat. To a very large
degree, however, he can find his food in supermarkets like other
people do, although he must be careful to check the ingredients
in prepared foods. He has to go farther away to obtain some
foods, such as pasta. Because of that, and because of the care he
must take in purchasing prepared products, he argued that he is
different from other people. But to what extent? To an extent
that strikes me as minimal.
By contrast, in Leduc v. Canada, [2000] 3
C.T.C. 2264, [1999] T.C.J. No. 765 (T.C.C.),
Judge Lamarre found that a person with celiac disease was
entitled to the disability tax credit. She said this at
paragraph 16 of her reasons:
... I find the evidence shows that, in order to feed herself
(that is to say to take all the necessary steps in preparing
meals suitable to her diet), Ms. Michalk must take much more time
than healthy persons are normally required to devote to this
activity. In my view, it requires a marked departure from
normality.
Most recently, in Noaille v. Canada,
[2001] T.C.J. No. 603, Judge Bowman also found that a person
who suffered the symptoms of celiac disease was entitled to the
disability tax credit. He said this at paragraphs 12, 15 and
16:
[12] I acknowledge that there
appears to be a difference of opinion within this Court
concerning celiac disease ...
[...]
[15] It would be pointless to
try to reconcile these two lines of decisions. Each case turns on
its own facts and, particularly in the case of celiac disease,
differences in the severity of the disease are extreme and
striking. Mrs. Noaille's case is clear and extreme.
[16] I agree with and adopt
Judge Lamarre's reasoning in Leduc and that of
Judge Campbell in Hamilton. In their decisions, both
judges followed the reasoning of the Federal Court of Appeal in a
previous decision in Johnston v. The Queen, 98 DTC
6169.
In Nantel v. Canada, [2000] T.C.J. No.
345, Judge Lamarre Proulx held, again following
Johnston, that the disability tax credit was available for
children whose exceptionally severe food allergies required the
mother to spend an inordinate amount of time looking for and
preparing foods. She said this at paragraph 17 of her
reasons:
When it comes to the activity of feeding oneself,
it is not just the act of putting food in one's mouth that
must be considered. Looking for and preparing food must be as
well. ... As regards celiac disease, I have not found that a
person suffering therefrom requires very much more time for
feeding himself or herself than is required by normal people. In
the instant case, however, I feel that the time spent looking for
and preparing food greatly exceeds the time usually spent by
normal people on those activities.
To summarize, persons with celiac disease or
other medical conditions that impose dietary restrictions are
eligible for the disability tax credit if, but only if, they can
establish by evidence that they require an inordinate amount of
time to find, procure and prepare foods that can safely be
eaten.
[24] From the evidence presented by the
Appellant and the testimony of Dr. Potter-Cogan I have
concluded that the Appellant requires an inordinate amount of
time to find, procure, prepare and consume foods that she can
safely eat. Based on the Hamilton decision and the other
decisions referred to above, the appeal is allowed.
Signed at Vancouver, British Columbia, this 21st day of
January 2003.
J.T.C.C.
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