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Citation: 2003TCC346
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Date: 20030520
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Docket: 2002-2597(IT)I
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BETWEEN:
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GRANT W. FLETCHER,
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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
Beaubier, J.T.C.C.
[1] This appeal pursuant to the
Informal Procedure was heard at Kelowna, British Columbia on
May 8, 2003. The Appellant testified and called his wife, Anne,
and Dr. Andrew Farquhar, M.D., who was qualified as an expert
witness respecting Type 1 diabetes and its treatment.
[2] Paragraphs 5 to 9 inclusive of the
Reply to the Notice of Appeal outline the matters in dispute.
They read:
5. The
Appellant, in filing his 2000 taxation year income tax return,
made a claim for a transfer of a non refundable tax credit of
$4,293.00 and $7,234.00 in respect of the disability tax credits
(the "DTC") for his daughters, Sydney and Katherine
respectively.
6. The
Minister initially assessed the Appellant's 2000 taxation
year and disallowed the DTC. The Notice was dated September 4,
2001.
7 In
denying the Appellant's claim for the DTC for the 2000
taxation year, the Minister relied on the following assumptions
of fact:
a) the
Appellant is the father of Katherine Elizabeth Fletcher born
January 15, 1981 (hereinafter "Katherine") and Sydney
Anne Fletcher born May 19, 1984 (hereinafter
"Sydney");
b) Katherine
was diagnosed with Juvenile Diabetes Type 1 (the
"Impairment") in the 1992 taxation year;
c) Sydney was
diagnosed with the Impairment in the 1999 taxation year;
d) the
Impairment requires that Katharine and Sydney inject insulin on a
daily basis;
e) the Form
T2201 Disability Tax Credit Certificates ("T2201")
completed by Katherine and Sydney's doctor, Dr. Farquhar,
indicated that neither Katherine nor Sydney were restricted in
any of the basic activities of daily living;
f) the
T2201 indicated that Katherine and Sydney test their blood
glucose levels each and every day;
g) the blood
glucose monitoring is not a life sustaining therapy;
h) their was
no life sustaining therapy administered to either Katherine or
Sydney that would require a total duration averaging not less
than 14 hours a week;
i) the
Impairment does not restrict Katherine and Sydney in the
performance of any of the basic activities of daily living;
and
j)
Katherine and Sydney do not suffer from any impairment the
results of which markedly restricts their ability to perform any
of the basic activity of daily living.
B. ISSUE
TO BE DECIDED
8. The issue
is whether the Appellant is entitled to claim a transfer of the
personal non-refundable tax credits for the 2000 taxation year in
respect of the DTC.
C.
STATUTORY PROVISIONS RELIED ON
9. He relies
on sections 118.3 and 118.4 and subsection 248(1) of the
Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), as amended
(the "Act").
[3] Assumptions 7a), b), c), d), f),
and g) were not refuted by the evidence.
[4] Assumption e), needs further
clarification since, for the year 2000 which is in appeal,
paragraph 118.3(1)(a.1) adds that the certificate may
specify that the individual's ability to perform a basic
activity of daily living would be markedly restricted but for the
"therapy" referred to in paragraph (a.1). Subsection
118.3 read at that time:
118.3. Credit for mental or physical impairment
(1) Where
(a) an individual
has a severe and prolonged mental or physical impairment,
(a.1) the effects of the impairment
are such that the individual's ability to perform a basic
activity of daily living is markedly restricted or would be
markedly restricted but for therapy that
(i) is
essential to sustain a vital function of the individual,
(ii) is required to
be administered at least three times each week for a total
duration averaging not less than 14 hours a week, and
(iii) cannot reasonably be
expected to be of significant benefit to persons who are not so
impaired,
(a.2) in the case of
(i) a sight
impairment, a medical doctor or an optometrist,
(i.1) a speech impairment, a
medical doctor or a speech-language pathologist,
(ii) a hearing impairment,
a medical doctor or an audiologist,
(iii) an impairment with
respect to an individual's ability in feeding and dressing
themself, or in walking, a medical doctor or an occupational
therapist,
(iv) an impairment with
respect to an individual's ability in perceiving, thinking
and remembering, a medical doctor or a psychologist, and
(v) an impairment
not referred to in any of subparagraphs (i) to (iv), a medical
doctor
has certified in prescribed form that the impairment is a
severe and prolonged mental or physical impairment the effects of
which are such that the individual's ability to perform a
basic activity of daily living is markedly restricted or would be
markedly restricted but for therapy referred to in paragraph
(a.1).
(b) the individual
has filed for a taxation year with the Minister the certificate
described in paragraph (a.2), and ...
[5] The Shorter Oxford Dictionary, 3rd
Edition, defines "therapy" as follows:
"therapy - The medical treatment of disease; curative
medical treatment."
[6] The Appellant and Anne described
the strict regime which their daughters must adhere to, just to
stay alive. When they were young, this regime required constant
adult supervision. In the Court's view this could be totalled
to a sum in excess of 14 hours each week, at that time.
[7] However, actual
"therapy", as defined in paragraph [5], did not total
any where near 14 hours each week. This remains true even if
other health professional attendances (as referred to in
paragraph 118.2(2)(l.9) than their doctor's are included in
the calculations for the year 2000.
[8] In these circumstances and in
light of the remaining facts in this case, the appeal is
dismissed.
Signed
at Ottawa, Canada, this 20th day of May 2003.
J.T.C.C.
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