Citation: 2003TCC614
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Date: 20030904
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Docket: 2003-733(IT)I
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BETWEEN:
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ROBERT CASAVANT,
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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
Dussault J.
[1] This is an
appeal under the Informal Procedure from the assessment for the 2001 taxation
year in which the Minister of National Revenue disallowed the Appellant’s tax
credit for an impairment in mental or physical functions, pursuant to sections
118.3 and 118.4 of the Income Tax Act (the Act).
[2] The
Appellant, who has held jobs in the past for limited periods of time, no longer
works and receives $9,000 in disability pension per year from the Régie des rentes
du Québec.
[3] According
to Hélène Vallée, the Appeals Officer, in 2000, the Canada Customs and Revenue
Agency established a national program for verifying claims for credits for an
impairment in mental or physical functions to ensure the most effective
application of the Act.
[4] As part of
this verification, the Appellant was asked to file the certification required
by paragraph 118.3(1)(a.2) of the Act on the prescribed form (T-2201).
Dr. Patrick Laplante completed the form on November 20, 2001. Dr. Laplante’s
diagnosis is as follows:
[TRANSLATION]
Slight mental impairment, very
emotional, very impulsive, easily stressed and frustrated, very little physical
endurance. Never able to get and keep a job.
[5] However,
Dr. Laplante does not in any way certify that this is a serious and prolonged
impairment in mental or physical functions the effects of which are such that
the Appellant’s ability to perform a basic activity of daily living is markedly
restricted, as required by paragraph 118.3(1)(a.2) of the Act (Exhibit
I-1).
[6] A
supplementary questionnaire was completed by a Dr. Larose. The answers
provided did not contradict the answers supplied by Dr. Laplante on the
prescribed form in any way.
[7] The
agent for the Appellant stressed the fact that the Appellant had received the
credit in the past, that he currently does not work and that he has a very
modest income from the Régie des rentes du Québec. According to the agent, for
the Appellant to lose the benefits of the credit would only aggravate his
situation.
[8] I
think it is important to refer to subsection 118.4(1) of the Act, which states
the following:
118.4 Nature of
impairment
(1) For the purposes of subsection 6(16),
sections 118.2 and 118.3 and this subsection,
(a) an impairment is prolonged where it has
lasted, or can reasonably be expected to last, for a continuous period of at
least 12 months;
(b) 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;
(c) a basic activity of daily living in relation
to an individual means
(i) perceiving, thinking and remembering,
(ii) feeding oneself or dressing oneself,
(iii) speaking so as to be understood, in a quiet
setting, by another person familiar with the individual,
(iv) hearing so as to understand, in a quiet
setting, another person familiar with the individual,
(v) eliminating (bowel or bladder functions),
or
(vi) walking;
(d) 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;
[9] We
note that “working” is not considered a basic activity of daily living and that
the fact that it cannot be done cannot be taken into consideration.
[10] The
Federal Court of Appeal clearly indicated that the medical or other
certification, pursuant to paragraph 118.3(1)(a.2) of the Act constitues
a mandatory requirement. In Buchanan v. Canada, [2002] F.C.J. No. 838
(Q.L.), which counsel for the Respondent referred to, Rothstein J. expressed
the following at paragraph 8:
The requirement for a
medical certificate was addressed in the decision of this Court in Attorney
General v. McIsaac, [2000] D.T.C. 412. In that case, it was determined that
paragraph 118.3(1)(a.2) was mandatory and not directory and that a certificate
by a doctor that the individual suffers impairment in the language of the
section was a requirement. At paragraph 5, Sexton J.A. stated:
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.
[11] While
cognizant of the Appellant’s problems in his daily life and the extremely
vulnerable state of his financial situation, it is not my place to change the
requirements established by Parliament.
[12] Accordingly,
the appeal is dismissed.
Signed at Ottawa, Canada, this 4th day of September 2003.
Dussault
J.
Translation certified true
on this 30th day of March
2009.
Bella
Lewkowicz, Translator
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