Schlegel v. The Queen, 2004 TCC 393 (Informal Procedure)

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Agent for the Appellant: Mary Jane Schlegel

Counsel for the Respondent: Nicolas Simard

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REASONS FOR JUDGMENT

(Delivered orally from the Bench at

Kitchener, Ontario, on April 29, 2004)

Bowie J.

[1]      This case comes down to the question whether the Disability Tax Credit Certificate that is Exhibit R-1, must be taken at face value, specifically in respect of the first question on the fourth page and the answer thereto. The question put there, under the heading "Life-sustaining therapy (starting for 2000)", and I quote from the form, is:

If your patient needs life-sustaining therapy to support a vital function (see page 1), he or she may qualify for the disability amount, even if the therapy has alleviated the condition. Your patient must specifically dedicate the time needed for this therapy -- at least three times per week, to an average of at least 14 hours per week (do not include time needed for travel, medical appointments, or to recuperate after therapy).

Then the question posed to the medical professional is:

Does your patient meet these conditions for life-sustaining therapy?

And the alternatives "yes" and "no" are offered. Dr. Messner has quite clearly chosen "yes" as the answer to that question. Then below that, and I quote again, it says:

If yes, please specify the type of therapy:

[2]      About two-thirds of one line of the form are provided for that answer. Dr. Messner, presumably in an attempt to be more complete than is contemplated by the Minister in designing the form, has also written on the bottom line of the box in which the question is posed. He says:

Patient after bone marrow transplant; requires multiple essential medications.

At that point he is out of space.

[3]      The view that I take of these forms is that the medical profession has had imposed on it the obligation to deal with these questions, as they are posed in the form, and to answer to the best of their ability questions posed by the Minister. These are based, sometimes fairly accurately and sometimes less so, on the provisions of the legislation.

[4]      The Federal Court of Appeal made it clear in A.G. of Canada v. MacIsaac et al.[1] that the form is an essential part, not only of the assessing process, but of the adjudication process. The Court said that without this form properly completed by the doctor, and giving answers that satisfy the legislation, there is no tax credit available. The logical extension of that proposition is that if a doctor certifies that the requirements of the Act have been met, and if the doctor is not called to testify and to defend the answers that he has given, then I must take the form at face value, at least if it does not contain a clear inconsistency such that I must conclude that the doctor made a mistake. I do not propose to pose an example, but it would have to be quite unambiguous that the form was internally inconsistent. Otherwise, in my view, appropriate answers on the form are determinative of the factual questions raised by the legislation. It is not at all clear to me that medication cannot, under some circumstances, fall within the words, "life sustaining therapy". I have no evidence from an expert before me that would let me reach any conclusion as to whether in the present case it does or does not fall within the expression, "life-sustaining therapy". I have the medical opinion that the legislation mandates, and that is unchallenged in that the author of it is not here to defend it. For that reason I propose to allow the appeal for the year 2001.

[5]      I am in agreement with Mr. Simard to this extent; without having claimed the credit in filing the return for 2002, and without having filed an objection within the time limited for doing so as a prerequisite to appeal the Appellant cannot pursue an appeal for that year. The authorities on this point are numerous and clear.

[6]      I must dismiss the 2002 appeal but the appeal for 2001 is allowed.

Signed at Ottawa, Canada, this 8th day of June, 2004.

Bowie J.