Date: 20020116
Docket: 2001-2079-IT-I
BETWEEN:
KEVIN M. AUSTIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
_____________________________________________________________
For the Appellant:
The Appellant himself
Counsel for the Respondent:
Mark Heseltine
_____________________________________________________________
Reasonsfor
Judgment
(Delivered orally from the Bench at Calgary,
Alberta, on November 9, 2001)
McArthur J.
[1]
This is an appeal from an assessment for the 1999 taxation year
involving a claim by the Appellant for a disability tax credit
under section 118.3 of the Income Tax Act. The Appellant
abandoned his appeals for the taxation years 1987 through to 1998
because no notices of objection had been filed by him for those
years and, therefore, they were not validly before the Court. For
the l999 taxation year, the issue is whether the Appellant's
dependent daughter Jessica suffered from a severe and prolonged
mental or physical impairment within the meaning of sections
118.3. and 118.4 of the Act.
[2]
Subsection 118.3(1) reads:
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 or would be 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 or would be
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,
there may be deducted in computing the individual's tax
payable under this Part for the year the amount determined by the
formula ...
Subsection 118.3(2) permits a parent such as the Appellant to
claim a credit with respect to a dependant. Subsections
118.4(1)(a), (b) and (c)(i) read as
follows:
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;
...
The basis of the Appellant's case is that Jessica is
markedly restricted in her ability to think, perceive and
remember all or substantially all of the time or she requires an
inordinate amount of time to do so.
[3]
Jessica is now 14 years old. Her father, the Appellant, and
Gregory M. Bullivant testified. Her father is a manager with
Telus Corporation and her mother a practising chiropractor. Mr.
Bullivant is a clinical psychologist and a highly qualified
educator of children with learning disabilities. Jessica
understandably did not testify. She attends school at Foothills
Academy, a private school for those with learning disabilities.
Obviously, the best evidence of her mental condition comes from
her parents and teacher. The Respondent produced no witnesses.
Jessica is the only child of Sherry Austin and her former
partner, Mark Dochtermann. Her parents' relationship ended
when Jessica was only 9 months of age and Mark has not had any
contact with her since that time. Sherry is presently married to
Kevin Austin and they one other child, a six-year old
daughter, Alexandra.
[5]
Jessica has had difficulties academically in reading, writing and
mathematics since grade one. She has been tutored in math weekly
or twice weekly for many years. In a psychological report dated
October 11, 1998,[1] Dr. Linda J. Matsalla stated:
Jessica's conversational speech and language were
age-appropriate. She had some difficulty comprehending and
remembering spoken questions and directions and frequently needed
repetition. She also experienced word-finding problems when
attempting to answer questions verbally.
Under academic functioning, Dr. Matsalla added:
... Jessica is presently reading at a grade 5.2 level,
which is almost a year behind her grade placement, but within
Average limits. She became confused and used inappropriate word
attack skills as words increased in length. She held her face
very close to the page, moved her head and read word-by-word. As
the length of sentences increased, she showed difficulties
sorting out information and remembering what she read.
In math, she scored overall at grade 4.9, which is Below Average
for her grade placement. She showed difficulties in written
calculation and in applied problems. In written calculation she
had trouble remembering the sequence of problem-solving steps,
and would transpose numbers. She has difficulties with fractions
and decimals. She also had difficulties sorting out relevant from
irrelevant information and developing an organized
problem-solving plan in applied problems.
Again, the focus is on Jessica's perceiving, thinking and
remembering in 1999. At the present time, she is able to read at
grade 8 or 9 level but does not comprehend or retain the text of
what she has read. Since 1998, she has been attending
Mr. Bullivant's special school for persons with her type
of learning disability.
[6]
Her father testified that she cannot retain instructions. If
asked to pick up three things, she would return shortly having
completely forgotten what her instructions were. Mr. Bullivant
stated that if told in the classroom that the bathroom was down
the hall to her left, she could not find it on her own. She
watches others and follows. She is very private or inward with
her thoughts and suffers from a severe inferiority complex or
feelings of low self worth. She cannot use the bus system on her
own because she cannot retain instruction and know where to get
on and off, although she is bussed every day to and from school
on her own.
[7]
On the positive side, she has an interest in art and cooking. She
watches television cooking shows. She gets along very well with
her six year old sister and can care for her up to one hour at a
time alone. Mr. Bullivant described her as a delightful girl who
requires careful directions and is very, very passive. She is not
spontaneous. She has progressed in her academic studies since
1999. She can feed and dress herself and shops for clothes with
her mother.
[8]
In the disability tax credit certificate dated February 3,
2000,[2] Mr.
Bullivant completed the following answers to specific
questions:
4.
Mental Functions
Is your patient able to think, perceive, and remember, using
medication or therapy if necessary?
"Severe
LD"
Ticked "No"
8.
Has the impairment lasted, or is it expected to last, for a
continuous period of at least 12 months?
Ticked "Yes"
9.
Is the impairment severe enough to restrict the basic activities
of daily living identified above all or almost all the time even
with therapy and the use of appropriate aids and medication?
Ticked "Yes"
I accept the evidence of the Appellant and Mr. Bullivant. The
Appellant was very emotional during his evidence. I can only
imagine the love and concern he has for Jessica and the
sacrifices he and Mrs. Austin have made and are making on behalf
of their daughter.
[9] I
find the facts in this appeal comparable to those in Radage v.
The Queen,[3]
and I adopt Judge Bowman's reasoning in every respect. There
is no doubt that Jessica's ability to perform a basic
activity of daily living is markedly restricted all of the time.
Following Radage, which was confirmed by the Federal Court
of Appeal in Johnson v. The Queen,[4] I find the severity of her disability
entitles the Appellant to a disability tax credit and, therefore,
the appeal is allowed with costs, if any.
Signed at Ottawa, Canada, this 16th day of January, 2002.
"C.H. McArthur"
J.T.C.C.
COURT FILE
NO.:
2001-2079(IT)I
STYLE OF
CAUSE:
Kevin M. Austin and
Her Majesty the Queen
PLACE OF
HEARING:
Calgary, Alberta
DATE OF
HEARING:
November 6, 2001
REASONS FOR JUDGMENT
BY:
The Honourable Judge C.H. McArthur
DATE OF
JUDGMENT:
November 16, 2001
APPEARANCES:
For the
Appellant:
The Appellant himself
Counsel for the
Respondent:
Mark Heseltine
COUNSEL OF RECORD:
For the
Appellant:
Name:
N/A
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
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