Ashby v. The Queen, docket 2001-1134-IT-I (Informal Procedure)

Date: 20010918

Docket: 2001-1134-IT-I

BETWEEN:

RAYMOND ALAN ASHBY,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasonsfor Judgment

O'Connor, J.T.C.C.

[1]            This appeal was heard at Brantford, Ontario on August 8, 2001 pursuant to the Informal Procedure of this Court.

[2]            There are three issues. The first is whether in the 1999 taxation year the Appellant was entitled to a deduction for child support payments of $6,303.30. The second is whether in the 1999 year the Appellant was entitled to a credit in respect of a disability amount. The third is was the Minister of National Revenue ("Minister") entitled to withhold the Appellant's Goods and Services Tax credit payment ("GST") due for July, 2000 and apply same against the Appellant's unpaid income tax for 1999 arising from the Minister's assessment disallowing the child support payments and disallowing the disability tax credit.

[3]            The Appellant described many other grievances. These included the fact that a registered letter addressed to him had been opened by someone and pasted back together. Further, he referred to the unfair treatment he received with respect to compensation for his injury. He also mentioned medical bungling or lack of medical ability with respect to the doctors who handled his injury. He referred further to collusion between his two ex-wives to extract as much as possible from him. Further, he referred to the refusal of the Family Responsibility Office in Hamilton to send him back certain support amounts, which the Appellant states that office had no right to retain. These grievances cannot be resolved by the Tax Court but must be left to be resolved by another tribunal or authority.

[4]            On the first issue of child support, the Appellant maintains that he paid support payments in respect of his son, aged 16, and his daughter, aged 22 and that he is entitled to deduct the full amount of such support payments, namely, $6,303.30 in the 1999 year. The Minister contends that the Appellant is not entitled as there was no valid court order or written agreement as is required by section 60.1 of the Income Tax Act ("Act"). No written agreement or court order was proven with the result that the Appellant does not satisfy the conditions set forth in section 60.1 with the result that he is not entitled to the deduction claimed.

[5]            On the second issue as to the disability credit, the Appellant suffered a serious industrial accident in 1995. At that time he was a machinist. He stated that the result of the accident and the result of the injury was that his right hand, arm and shoulder were seriously damaged. He states further that the surgery that might have resolved the problem was botched in one instance and unsuccessful in another. The effects of this injury as the Appellant has explained, is that he had to learn to write with his left hand because the injured arm was, in his words, useless. He explained that he had considerable difficulty dressing himself and in particular tying his shoelaces. He stated further that the pain from time to time resulting from the injury was intolerable. He described awakening at 3:00 a.m. with the pain, not being able to go back to sleep, with the result of him suffering considerable fatigue the next day.

[6]            The most relevant provisions of the Act are as follows:

118.3

(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,

(a.2)         in the case of

(i)             a sight impairment, a medical doctor or an optometrist,

(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,

(b)            the individual has filed for a taxation year with the Minister the certificate described in paragraph (a.2), and

(c)            no amount in respect of remuneration for an attendant or care in a nursing home, in respect of the individual, is included in calculating a deduction under section 118.2 (otherwise than because of paragraph 118.2(2)(b.1)) for the year by the individual or by any other person,

for the purposes of computing the tax payable under this Part by the individual for the year, there may be deducted an amount determined by the formula

A x $4,118

where

A is the appropriate percentage for the year.

...

118.4

(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 and 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; and

(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.

[7]            There is no doubt that the Appellant has a disability which will continue for the foreseeable future. The difficulty facing the Appellant is that the disability tax credit certificate signed by Dr. I. Kents and dated June 12, 2000 indicates that the disability relates to a hand and a finger, that the Appellant suffers problems with feeding and dressing, and that the injury is permanent. However in response to question 9 of the certificate, the doctor indicates that the impairment is not severe enough to restrict the basic activities of daily living all or almost all the time even with therapy and use of appropriate aids and medication.

[8]            The Appellant made certain remarks with respect to Dr. Kents and attempted to down play the significance of the certificate. He stated further that it was untrue, at least with respect to the doctor's answer to question 9. He referred to Exhibit A-5 which is a statement apparently signed by Dr. Kents on April 30, 1998 to the effect that he would not give the Appellant any clearance to work until:

1. functional abilities done;

2. job description given.

This Exhibit however does not affect the doctor's answer in June 12, 2000 to question 9 on the certificate. Moreover the Federal Court of Appeal in Hodson v. Minister of National Revenue, [1988] 1 C.T.C. 2 held that the requirement of the doctor's certificate in proper form is mandatory. The result is that the Appellant is not entitled to the disability credit which he claims.

[9]            Counsel for the Respondent submits in paragraph 13 of the Reply to the Notice of Appeal that, in effect, notwithstanding the possible inaccuracy of the doctor's certificate, in any event the Appellant was not in fact suffering from a severe and prolonged impairment, as described in section 118.4 of the Act, the effects of which were such that the ability of the Appellant to perform a basic activity of daily living was markedly restricted all or substantially all of the time and therefore the Appellant is not entitled to the non-refundable tax credit in respect of a disability amount as provided by subsection 118.3(1) of the Act.

[10]          In my view, the submissions of counsel for the Respondent are correct. The certificate is inadequate and, in any event, the Appellant has not satisfied the Court that the submission of counsel mentioned above in paragraph 13 of the Reply is incorrect.

[11]          With respect to the third issue, the Appellant says that he paid the child support payments in 1999 and that he is disabled and that the position of the Minister is ridiculous, with the consequence that the tax resulting from the disallowance of the child support payments and the disability tax credit were incorrect. Consequently, in the Appellant's view there was no income tax payable with the result that the Minister had no right to withhold the July, 2000 GST credit payment and apply same against income tax.

Analysis

[12]          The Court is very sympathetic to the Appellant's situation. However, this is not a court of equity. I am obliged to apply the Act as it exists. The conclusion is that the Appellant cannot succeed on the child support deduction claim as there was no order of a competent court or written agreement.

[13]          Moreover the Appellant cannot succeed with respect to the disability credit issue as the certificate of Dr. Kents does not meet the conditions of the sections cited above. The Appellant definitely had a disability but it does not qualify because the effects of the disability were not such that the ability of the Appellant to perform a basic activity of daily living was markedly restricted all or substantially all of the time.

[14]          Further, the application by the Minister of the GST credit to offset the Appellant's income tax liability for 1999 was correct and in accordance with subsection 122.5(3) of the Act which in effect allows the Minister to make the offset in question.

[15]          Consequently for all of the above reasons the appeal is dismissed.

                Signed at Ottawa, Canada, this 18^th day of September, 2001.

J.T.C.C.

COURT FILE NO.:                                                                 2001-1134(IT)I

STYLE OF CAUSE:                                                               Raymond Alan Ashby v. The Queen

PLACE OF HEARING:                                                         Brantford, Ontario

DATE OF HEARING:                                                           August 8, 2001

REASONS FOR JUDGMENT BY:                      The Honourable Judge T. O'Connor

DATE OF JUDGMENT:                                                       September 18, 2001

APPEARANCES:

For the Appellant:                                                                 The Appellant himself

Counsel for the Respondent:                              Ifeanyi Nwachukwu

COUNSEL OF RECORD:

For the Appellant:                

Name:                               

Firm:                 

For the Respondent:                             Morris Rosenberg

                                                                                Deputy Attorney General of Canada

                                                                                                Ottawa, Canada

2001-1134(IT)I

BETWEEN:

RAYMOND ALAN ASHBY,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeal heard on August 8, 2001 at Brantford, Ontario by

the Honourable Judge Terrence O'Connor

Appearances

For the Appellant:                                The Appellant himself

Counsel for the Respondent:                Ifeanyi Nwachukwu

JUDGMENT

          The appeal from the assessment made under the Income Tax Act for the 1999 taxation year is dismissed in accordance with the attached Reasons for Judgment.

          Signed at Ottawa, Canada, this 18^th day of September, 2001.

"T. O'Connor"

J.T.C.C.