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Citation: 2003TCC586
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Date: 20030814
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Docket: 2003-579(IT)I
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BETWEEN:
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BRENDA J. SEEWALT,
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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] Brenda Seewalt appeals her income
tax assessment for 2001 by which the Minister of National Revenue
denied her claim for a disability tax credit ("DTC")
available by virtue of section 118.3 of the Income Tax
Act.
[2] Ms. Seewalt has suffered from
Crohn's disease since 1973 and from Multiple Schlerosis
("MS") since 1999. The respondent agrees that Ms.
Seewalt's disabilities from these diseases are prolonged and
have endured more than 12 months.
[3] A Disability Tax Credit
Certificate request by Ms. Seewalt's physician, Dr. Vervaeck,
on April 24, 2002, was filed with Ms. Seewalt's 2001 tax
return. In the certificate Dr. Vervaeck acknowledged that Ms.
Seewalt could see, walk, speak, perceive, think and remember,
hear, feed and dress herself and personally manage bowel and
bladder functions. However, Dr. Vervaeck certified that
Ms. Seewalt required life-sustaining therapy to support at
least a vital function such as "clapping" therapy to
help in breathing and kidney dialysis to filter blood at least
three times a week, to an average of 14 hours per week: s.s.
118.3(1). The therapies, Ms. Seewalt required, Dr. Vervaeck
wrote, were a drug and maintenance.
[4] Ms. Seewalt described this therapy
as "life-sustaining". The drug Ms. Seewalt was
prescribed in 2001 was Dexedrin for MS; she took one tablet,
twice a day. She also was injected with vitamin B12 once a month.
The duration of the administration of this therapy averaged less
than 14 hours per week. The "maintenance" included
rest, proper nutrition and attending at a physician's office
periodically. Ms. Seewalt declared she was required to follow a
rigid maintenance program so that she could work full-time, which
she did and continues to do.
[5] About ninety to one hundred
percent of the time, Ms. Seewalt explained, MS subjects her to
depression, anemia and, in particular, fatigue. Fatigue, she
explained, is a major factor in her life caused by MS. On two
occasions after 2001, she suffered attacks of blindness in one
eye, which lasted for a week to two weeks. Most of the time Ms.
Seewalt can walk, but she frequently experiences pain in her leg
and cannot walk more than a block; she sometimes stumbles and
falls.
[6] Her life is manageable, Ms.
Seewalt volunteered, but she has had to make serious adjustments
in her lifestyle to meet the demands of her disability, so that
she could enjoy her family and continue her employment.
[7] Crohn's disease and MS, Ms.
Seewalt declared, have markedly restricted her activities of
daily living. She complained that at times she has had to cancel
normal activities such as shopping and social outings because she
is too tired or sick. She has to conserve her energy. She has
given up hobbies she enjoyed. When she returns home from work,
she often has to take a nap.
[8] As a result of Crohn's
disease, Ms. Seewalt testified she must always be near a bathroom
or at least know where it is located.
[9] Ms. Seewalt referred me to
Watkin v. Canada[1], in which, on the facts of that case, I
considered chronic fatigue syndrome to have caused a
taxpayer's basic activities of daily living to have become
markedly restricted and allowed the appeal. Ms. Seewalt's
main disability is fatique. However, Ms. Watkin's disability
was more severe than Ms. Seewalt's: Ms. Watkin had to
give up work, she spent much of the time in bed, she had to have
meals prepared for her and had difficulty speaking.
[10] Ms. Seewalt no doubt has chronic,
lingering and distressing illnesses. By grit she is able to raise
a family and be gainfully employed. Based on the DTC certificate
of Dr. Vervaeck and my observation of Ms. Seewalt at trial,
at a time when her condition would have deteriorated since 2001,
she observed, her illnesses appear not to have markedly
restricted her ability in 2001 to perform a basic activity of
daily living. Also, the therapy for her illnesses did not amount
to at least 14 hours per week, as required by section 118.3
of the Act.
[11] The purpose of sections 118.3 and 118.4
is not to indemnify the taxpayer solely for the reason he or she
suffers from severe illness; it is to financially assist her or
him in bearing the additional costs of living and working
generated by the impairment.[2] Nevertheless, these provisions must be
interpreted so as to achieve a human and compassionate
construction.[3]
[12] The test to be met by the taxpayers
claiming a DTC is to establish that the impairment markedly
restricts the person's ability to perform a basic activity of
daily living, as defined in the Act; perceiving, thinking
and remembering, feeding and dressing oneself, speaking, hearing,
eliminating body waste and walking. The effects of the impairment
are 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 unable to perform a basic
activity of daily living or requires an inordinate amount of time
to do so.[4]
[13] An activity such as work, housekeeping
or a social or recreational activity is not considered by the
Act as a basic activity of daily living. However, as
Létourneau, J. A. stated in Johnston[5], simply because a
taxpayer, notwithstanding a severe impairment, manages to
participate in social and recreational activities, or work, the
taxpayer cannot be penalized and disallowed the DTC.
[14] But Létourneau, J.A. adds, the
social or recreational activities of a claimant for a DTC may be
of such a nature as to evidence an ability that is not markedly
restricted. The nature and frequency of any other activity
performed by the claimant may contribute to establish that the
performance of the basic activities of the claimant's daily
living is not markedly restricted.[6]
[15] In the appeal at bar I cannot not find
any evidence that Ms. Seewalt's performance of any basic
activity of daily living was markedly restricted because of one
or the combination of more than one disability. Ms. Seewalt's
inability to walk, for example, was not restricted as was the
taxpayer's in Johnston, supra,for example.
[16] The appeal is dismissed.
Signed
at Ottawa, Canada, this 14th day of August, 2003.
Rip, J.
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