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Citation: 2003TCC302
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Date: 20030430
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Docket: 2001-3908(IT)I
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BETWEEN:
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JEAN-CHRISTOPHE BENOIT-OTIS,
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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
Lamarre Proulx, J.T.C.C.
[1] This appeal, heard under the informal procedure, has to do with the 2000 taxation year.
[2] At issue is whether the appellant is eligible to claim a tax credit for severe and prolonged mental impairment in accordance with sections 118.3 and 118.4 of the Income Tax Act ("the Act").
[3] The assumptions of fact on which the Minister of National Revenue ("the Minister") relied in making his assessment are set out in paragraph 6 of the Amended Reply to the Notice of Appeal as follows:
[TRANSLATION]
(a) during the taxation year at issue, the appellant lived alone in an apartment;
(b) during the taxation year at issue, the appellant occupied a filing position in an office;
(c) on the income tax return filed for the 2000 taxation year, the appellant's application for the disability tax credit was supported by a form T2201 F (00), "Disability Tax Credit Certificate" completed on January 18, 2001 by an authorized medical doctor, Dr. Laurent Mottron, who diagnosed Asperger's syndrome in his patient;
(d) on May 16, 2001, the Minister asked Dr. Laurent Mottron in writing to complete a questionnaire concerning the appellant;
(e) after receiving the questionnaire completed and signed by Dr. Laurent Mottron, the Minister determined that the appellant was not markedly restricted in the basic activities of daily living because of a severe and prolonged mental or physical impairment during the 2000 taxation year;
(f) at the objections stage, the Minister forwarded to the disability tax credit group in Ottawa the form T2201 F (00), "Disability Tax Credit Certificate", as well as the questionnaire completed by Dr. Laurent Mottron;
(g) following the decision by the disability tax credit committee, the Minister once again determined that the appellant was not markedly restricted in the basic activities of daily living because of a severe and prolonged mental or physical impairment during the 2000 taxation year.
[4] The Notice of Appeal notes that the appellant has Asperger's syndrome and that "his handicap has cognitive and perceptual aspects that limit the basic activities of daily living at all times". The Notice of Appeal states that this diagnosis was made in December 1991 by Dr. Michael Shevell, a neurologist at the Montreal Children's Hospital.
[5] The appellant was not present at the hearing; his father, Mario Otis, acted as his agent. Mr. Otis is a professor of philosophy at the college level. He was the first witness.
[6] Concerning the wording of subparagraph 6(a) of the Reply, the agent for the appellant indicated that he would agree with the wording if the words "under his parents' supervision" were added. According to Exhibit A-1 containing various documents adduced together, the appellant lived at his parents' home until May 1, 2000, when he began living in an apartment.
[7] Concerning subparagraph 6(b) of the Reply, this witness explained that he agreed with the wording, except that "a position below his intellectual capacity and in which he must be closely supervised and assisted" should be added.
[8] This witness admitted the truth of subparagraph 6(c), and stated that to his knowledge subparagraph 6(d) was accurate.
[9] Concerning subparagaraph 6(e), this witness explained that the fact that the Minister reached his decision without taking into account the content of the questionnaire completed by Dr. Laurent Mottron should be added.
[10] Concerning the wording of subparagraph 6(g), this witness stated that this decision by the disability tax credit committee was not communicated to the appellant. Neither the appellant nor his parents ever saw this document.
[11] This witness referred to a document from Exhibit A-1, that is, a September 16, 1998 application for equal access submitted to the Quebec government on the ground of being permanently restricted in the basic activities of daily living. An application of this type, if accepted, promotes employment under the equal access program. On the questionnaire accompanying this application, the appellant states that he has "difficulty carrying on normal activities" and that the severe and prolonged nature of the impairment in his case has to do with "perception". In terms of comments, he writes, "I suffer from Asperger's syndrome (severe emotional and social communication problems). Diagnosis dated December 1991."
[12] Exhibit A-1 also includes another similar application. This August 25, 2002 application was submitted to the Immigration and Refugee Board.
[13] The appellant's mother, Michelle Benoit, testified. Her occupation is to be a stay-at-home mother.
[14] Ms Benoit explained that Asperger's syndrome an illness that is neurological in origin and falls into the autism category. The effects are called pervasive developmental disorders. The illness is characterized by a dysfunction of the nervous system that alters perception.
[15] Persons with Asperger's syndrome cannot decode others' facial, verbal or gestual expressions, or have a great deal of difficulty doing so. They do not know how to behave with others, which causes a great deal of anguish and anxiety. These persons are always wondering whether what they are doing is right. This situation causes not only anguish and anxiety, but also very great solitude. Because they do not understand others' feelings, these persons withdraw and have very great difficulty having a social life. They are solitary individuals who are seen as "egocentric".
[16] These persons like routine, as well as filing and putting away, which means an organized environment. They dread unexpected situations. As soon as her son must deal with a new situation, Ms Benoit must break down the activity and indicate to him, step by step, what has to be done. It is even necessary to check whether step one has been taken, and then to indicate step two. If all the steps are indicated at once, Jean-Christophe may be confused and forget everything. There is a risk of confusion and anxiety.
[17] These persons can be called "monomaniacs", that is, persons who have a favourite subject, which they care about and will explore in depth and about which they will become genuine experts. They may talk to others about their subject for hours, unconcerned about whether the others are interested.
[18] These persons are awkward; people readily describe them as clumsy. They are awkward not only socially, but also physically.
[19] As well, these persons are naive and credulous. Since they cannot decode others' expressions, they readily believe what they are told. Others' behaviour needs to be explained to Jean-Christophe, because he assumes that everyone is well-intentioned and does not see trouble coming.
[20] These persons have a very recto tono, very monotonous, tone of voice.
[21] In general, persons with Asperger's syndrome are of average or superior intelligence and thus can study, with support.
[22] According to the appellant's mother, since the appellant was a very small child he has exhibited the main characteristics she just listed, particularly social difficulty. Jean-Christophe has a social life that is limited to his family. He has a friend who also has Asperger's syndrome. He met this other friend at Autism Society activities. The two young persons were put in touch with each other through their parents, and now continue to see each other.
[23] On the other hand, Jean-Christophe has a very accurate photographic memory, but his overall memory, which consists in having an overall picture of events, is non-existent or very limited.
[24] In Jean-Christophe's position, much of the work is repetitive and routine. He is an assistant to a member of the Immigration and Refugee Board. His work is to type the decisions made by the Board members onto prepared forms. He uses a computer for this purpose. When the work is routine and familiar, there is no problem and he manages very well, but as soon as a new situation arises his supervisor must to explain to him how to proceed.
[25] Jean-Christophe found his position in the following way: he was registered at the Cégep de Rosemont in a work-study program. As a result, he obtained various on-the-job training assignments, all under an equal access program and all in the federal or provincial public service. Jean-Christophe obtained his present position through his last on-the-job training assignment under the work-study program at the Cégep de Rosemont. He is still there, in close touch with the co-ordinator.
[26] The appellant's mother stated that it was necessary to help him find accommodation and organize his life in the apartment. She often prepares food for him. It is necessary to call him several times to find out how things are going. Jean-Christophe tends to have insomnia and thus needs encouragement. Every Sunday he comes to the house. These visits help Jean-Christophe express the things that are worrying him: he often says, "Oh! Here come my dark thoughts again," and expressing those thoughts does him good.
[27] The appellant's mother explained that it is necessary to be very much aware that, for Jean-Christophe, living independently and taking charge of his life is an effort at every turn, a constant effort that makes physical and mental demands on him. It is necessary to help him step back, focus, and find the energy to continue.
[28] Jean-Christophe needs his parents' encouragement, because the great risk is discouragement and everything that follows it: the loss of his position, the loss of his independence, and possibly being in put into public care because at that point there would not be any other solution.
[29] Under cross-examination, Ms Benoit confirmed that Jean-Christophe practises Tae Kwon Do, a sports activity. Jean-Christophe has not made any friends there; he works out and returns home. Asked to describe Jean-Christophe's day-to-day life, she explained that he is a very routine-oriented person. He has set up a ritual for himself: he gets up, goes to his job, and comes back from his job. When he does not go to Tae Kwon Do, he makes supper for himself and rests because he is very tired. In his day-to-day life, Jean-Christophe manages thanks to the training and the support he has been given. Once persons with Asperger's syndrome have been given a routine, they can repeat it by themselves. It is when new elements arise that the situation is upsetting for Jean-Christophe. He has a driver's licence. He dreams of having a car of his own but for the moment he takes the Métro to go to the office. He does his own grocery shopping and prepares his lunch. If his parents leave on vacation for some time, someone is asked to keep in touch with Jean-Christophe, to talk with him, call him, and visit him.
[30] Dr. Mottron, a medical doctor and researcher, testified at the respondent's request. His research is in the field of cognitive neuro-science. He explained that autism is characterized by a profile of specific skills and deficits, that is, autistic persons may process some information clearly better than we do and other information much less well that we do; this performance profile characterizes autism and pervasive developmental disorders in general. The word "pervasive" means that several cognitive areas are affected. The most important effect, and the defining effect for this disorder, is the effect on socialization. Another effect is the effect on communication, which in the Asperger group affects the social use of language and is accompanied by grammar, spelling and reading that are sometimes better than normal. The third effect is the effect on the variety of interests. These persons have interests that are much more repetitive than average.
[31] Regarding difficulty with social relations, these persons are very vulnerable to any kind of judgment or negative attitude by others. They cannot distinguish among the signs of emotions on others' faces. In everyday life, they cannot process the unexpected. They are less sensitive than we are to boredom. They do not innovate in their schedules. In the world of work, things must not change very much. Employers, too, must become representative of the family or the support group. The appellant's intelligence is somewhat higher than average but, in terms of social judgment, if his ability to deal with an unexpected social situation is quantified, he probably performs like a six- or seven-year-old child. He is hypersensitive to noise. There is also food ritualization that is very important.
[32] One of the main roles of parents or professionals is to anticipate and to provide assistance in crises, which are inevitable regardless of the person's level of adjustment and which are very stereotyped. These crises are usually triggered by an incident at work, in the case of a person who has already adjusted, or by an unfortunate encounter on the street; at that point there is an escalation of anxiety. Everything that was established in terms of social integration, apartment, food, sleep and work will disappear in a few weeks, and the person will develop an anxiety disorder and a depressive state of mind with suicidal behaviours. These facts mean that the supervision exercised by the parents must be considered permanent and lasting throughout the person's life. There is no cure for these disorders. There is an adjustment that may be quite good superficially if sustained, but that is never sustained by itself. Concerning the possibility of perceiving, thinking and remembering, the person has these capacities but exercises them in a qualitatively abnormal manner. Concerning the need for supervision, the person needs intermittent but lifelong supervision. There is a need for guidance at a distance, but for guidance nonetheless.
Arguments, analysis and conclusion
[33] The agent for the appellant relied on Radage v. Canada, [1996] T.C.J. No. 730 (Q.L.) and Johnston v. Canada, [1998] F.C.J. No. 169 (Q.L.).
[34] Counsel for the respondent relied on the decisions by this Court in Campbell v. Canada, [1996], T.C.J. No. 513 (Q.L.), a case involving chronic fatigue syndrome; Case v. Canada, [1996] T.C.J. No. 216 (Q.L.), a case involving hyperactivity; and Congo v. Canada, [1996] T.C.J. No. 671 (Q.L.), another case involving hyperactivity. She, too, referred to the decision by Bowman J. of this Court in Radage v. Canada (supra), specifically to the following passage:
...
(e) Finally there must be considered -- and this is the most difficult principle to formulate -- the criteria to be employed in forming the judgement whether the mental impairment is of such severity that the person is entitled to the credit, i. e. that that person's ability to perceive, think and remember is markedly restricted within the meaning of the Act. It does not necessarily involve a state of complete automatism or anoesis, but it should be of such a severity that it affects and permeates his or her life to a degree that it renders that person incapable of performing such mental tasks as will enable him or her to function independently and with reasonable competence in everyday life.
[35] Counsel for the respondent referred to the decision by the Federal Court of Appeal in Johnston v. Canada (supra), specifically to paragraphs 10 and 18:
10 The purpose of section 118.3 and 118.4 is not to indemnify a person who suffers from a severe and prolonged mental or physical impairment, but to financially assist him or her in bearing the additional costs of living and working generated by the impairment. As Bowman, T.C.J. wrote in Radage v. R., [1996] 3 C.T.C. 2510], at p. 2528:
The legislative intent appears to be to provide a modest 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.
...
18 No definition has been given of what constitutes an inordinate amount of time in the performance of the basic activities of daily living. In my view, 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.
[36] On the basis of these two decisions, counsel for the respondent pointed out that the appellant is able to function independently without a marked departure from normality.
[37] With respect, my assessment of the facts differs from that of counsel for the respondent. I refer first of all to the recent decision by Dussault J. of this court in Richard v. Canada, [2003], T.C.J. No. 28 (Q.L.), in which Dusseault J. dismisses an appeal by a taxpayer whose son apparently had Asperger's syndrome. However, in my opinion that case is different from the present case, in that the child's communication skills appear to be adequate overall. I quote excerpts from the report at paragraph 9 of the reasons:
We are dealing with a young boy of normal intelligence whose simultaneous functions of integration and reasoning seem to us to be well preserved in both the verbal and the non-verbal register. The child has special skills when it comes to expressive language: excellent vocabulary level, clear, well-articulated formulations ... All of this is somewhat suggestive of Asperger Syndrome, although this child surprised us with the adequacy of his relational contact in dyadic relationships, since he is capable of reciprocity and empathy. A more in-depth assessment of this symptomatology could therefore be made by Dr. Laurent Motron, a psychiatrist at Hôpital Rivière-des-Prairies.
[38] What was mentioned by both Dr. Mottron and the parents is that the appellant will need guidance throughout his life. The guidance need not be immediate, like life in close treatment or in supervised accommodation, but will always be required: guidance which provides the appellant with active support and to which the appellant can always have access in distressing situations.
[39] In Dallaire v. La Reine, [1996] T.C.J. No. 1544 (Q.L.), I had allowed the appeal on the basis of the need for guidance:
16 There are degrees of mental illness and a person suffering from such an illness may often overcome the effects of that illness with the aid of medication and lead a nearly normal life. However, care must be taken in analyzing these cases. An individual may suffer from a mental impairment that is not so severe as to require close treatment, but nevertheless sufficiently severe to require essentially the support of other persons or organizations to enable the person to live a near normal life.
[40] Both the parents and Dr. Mottron also stated that, for the appellant, perceiving and remembering require constant, demanding physical and mental effort.
[41] In the present case, on the basis of the statements by the appellant's mother and his medical doctor concerning Asperger's syndrome as it affects the appellant, I find that the neurological effects are such that the appellant is markedly restricted in the basic activity of daily living of perceiving, thinking and remembering. Indeed, the evidence has established that the appellant spends much more time and effort on this activity than normal. What is involved is therefore an inordinate amount of time within the meaning of the decision in Johnston (supra). As well, this activity can be properly performed only if there is guidance. Thus we cannot refer to complete independence.
[42] The appeal is therefore allowed.
Signed at Ottawa, Canada, this 30th day of April 2003.
J.T.C.C.
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