Date: 20010907
Docket:
2000-452-IT-I
BETWEEN:
ÉDITH
BOUCHARD,
Appellant,
and
HER MAJESTY THE
QUEEN,
Respondent.
Reasonsfor
Judgment
P. R. Dussault,
J.T.C.C.
[1]
These are appeals from assessments made under the Income Tax
Act (the "Act") for the 1997 and 1998 taxation
years, whereby the Minister of National Revenue (the
"Minister") disallowed the appellant the credit for
severe and prolonged mental or physical impairment for each of
those years.
[2]
In filing her income tax return, the appellant did not claim the
credit in question. She claimed it for 1997 by written request
dated January 8, 1999, with which was enclosed the
prescribed form T2201 completed by Dr. Byron Hyde on
November 23, 1998 (respondent's documents, tab 3).
As to 1998, the assessment, notice of which is dated
June 21, 1999, was made as per the return filed by the
appellant. On July 12, 1999, the Minister, at the
appellant's request, sent Dr. Georges Mailloux a
T2201 form and questionnaire to complete. Dr. Mailloux did
not complete the form. The questionnaire was completed and signed
on July 28, 1999 (respondent's documents, tab 5).
On August 12, 1999, the appellant served notice of her
objection to the assessment of June 21, 1999, as a result of
the Minister's refusal to allow her the credit for severe and
prolonged mental or physical impairment for 1998.
[3]
For both of the years concerned, the appellant claimed the credit
for severe and prolonged mental or physical impairment because of
the chronic fatigue syndrome from which she suffers. The Minister
disallowed the credit claimed, finding, on the basis of the
information at his disposal (in particular, the medical
certificates provided by the appellant), that the appellant did
not have a severe and prolonged mental or physical impairment the
effects of which were such that her ability to perform a basic
activity of daily living was markedly restricted during the years
in issue.
[4]
Counsel for the appellant called no experts. However, he
attempted to file in evidence a medical report by Dr. Micheline Guay, of which the
respondent had no knowledge, and he did so without giving advance
notice contrary to subsection 7(1) of the Tax Court of
Canada Rules (Informal Procedure). Counsel for the
respondent objected because he had not received the required
notice and also because he was unable to cross-examine the
report's author. As the objection was justified, counsel for
the appellant could have requested an adjournment, which he
refrained from doing. The appellant's evidence is thus
limited to her testimony.
[5]
The appellant explained that, before the onset of her illness,
she had worked as a computer programmer and, being appreciated by
her employer, had received regular promotions. She had also been
very active and taken part in numerous sporting and social
activities. Toward the end of 1991, she began experiencing health
problems, which first appeared in the form of major fatigue from
which she was no longer able to recover. In January 1993, on
account of her accumulating symptoms, she requested sick leave
for the first time. She was then suffering from fatigue,
headaches, chest pains, dizziness, sneezing and other
symptoms.
[6]
At that time, the appellant, at her employer's request,
consulted various specialists, who, while acknowledging that she
was ill, felt she was nevertheless able to work. Between periods
of sick leave of several months' duration, the appellant
returned to work periodically on the advice of the medical
experts consulted at her employer's request. The
appellant's work weeks were gradually reduced to three
half-days; her home became her place of work; and she took
successive periods of sick leave. Following various incorrect
diagnoses, the chronic fatigue syndrome and fibromyalgia from
which she suffers were identified. The appellant stopped working
for good in February 1997 and was dismissed in August
1998.
[7]
The appellant explained how far her daily activities had been
restricted during the period in issue, that is, after permanently
ceasing to work, and she stated that her condition has not since
improved. She explained that she normally gets up around
8:30 a.m. or 9:00 a.m. and that, when she awakes, she
suffers from pains in one leg, in the back and in the neck, as a
result of which it takes a considerable effort even to get up.
She must wait before she gets dressed since the pain makes this
task too difficult. She normally does not attempt to dress
herself until after breakfast because she would otherwise have to
spend an hour or more doing so. On this point, she mentioned that
she generally dresses two hours after getting up but did not say
how much time she must devote to this task. She also said she
herself does not do any cleaning in the house where she lives
with her sister, who suffers from cerebral palsy, and that a
person she described as a homemaker prepares the meals, does the
housekeeping and maintains the yard. She mentioned, however, that
she occasionally prepares very light meals herself, but when she
does so, she must rest before the meal in order to prevent her
blood pressure from falling.
[8]
The appellant also stated that, as a result of her lack of
energy, she has no ability to socialize and isolates herself a
great deal. She explained that one of the only recreational
activities she can engage in is walking in the woods with her
dog, when her condition permits. Even during these walks, she
explained, she must frequently stop and sit down and often falls
asleep on the spot. She said that she also goes for drives, but
that she must also stop after an hour or two because she is so
tired she has to sleep. These limits imposed on her by her
illness prolong her trips, particularly on her visits to the
doctor, which are numerous according to the statement of the
Régie de l'assurance-maladie du Québec
filed as Exhibit A-2. However, she did not specify how
fast she can walk or the frequency of the breaks she must take
when walking or even whether she must take breaks over short
distances. She explained that it is impossible for her to remain
standing for long periods because of pains in her leg and back.
She said that conversing with someone is exhausting because of
the concentration required. She explained she cannot read on
account of memory loss resulting from her illness. As for
television, she said she limits it to watching programs that are
not stressful. She also mentioned that she has to wear tinted
lenses because she is sensitive to light.
[9]
Lastly, she explained that she finds it extremely difficult to do
her shopping herself, since, if she stays in a store for too
long, she suffers back pain, headaches and nausea. For example,
she must return to the store several times in order to buy an
article of clothing. She usually does not do her grocery shopping
herself. She testified that, on one occasion, she chose to do so
in order to immerse herself in society and that the fatigue,
nausea and hot flashes almost forced her to leave her full basket
at the cash.
[10]
She also mentioned that, on some days, she is unable to do
anything at all. However, she did not say how frequently these
days of total inactivity occur.
[11]
At one point, the appellant asked the Court to suspend the
hearing for a few minutes because she was experiencing
pain.
[12]
In cross-examination, the appellant admitted that her symptoms
vary from one day to the next, although she did not explain the
degree of variation or even the proportion of [TRANSLATION]
"good" days to [TRANSLATION] "bad". She also
admitted that she and one of her sisters look after the finances
of her sister suffering from cerebral palsy. According to the
appellant, this is not a complex task: it is simply a matter of
dividing the amount of the welfare cheque between food and
clothing. The appellant's income tax returns, various medical
certificates, and letters and questionnaires completed by
doctors, which the appellant sent to the Canada Customs and
Revenue Agency were also filed in evidence. The appellant cast
doubt on the probative value of certain documents, stating that
one of the doctors who had drafted them,
Dr. Byron Hyde, an Ottawa physician, did not speak
French very well, whereas she herself has difficulty
communicating in English.
[13]
It should be noted that, on the T2201 form dated
November 23, 1998, duly completed at the appellant's
request, Dr. Hyde in no way indicates in his answers to the
questions that the appellant has a severe and prolonged mental or
physical impairment the effects of which are such that her
ability to perform a basic activity of daily living is markedly
restricted. He does state, however, that the appellant suffers
from a permanent impairment described as follows:
"Fibromyalgia/CFS/severe & rapid fatigue of muscle &
CNS abilities with activity."
In a lengthy letter dated June 30, 1998, which purported to
be a full and detailed medical report and which he sent to
counsel for the appellant, clearly for insurance purposes and not
in support of the tax credit claim, but which was nevertheless
handed over to the tax authorities, Dr. Hyde concludes that
the appellant is above all suffering from chronic fatigue
syndrome and that she is totally incapable of working
(respondent's documents, tab 4). It should be noted that
Dr. Hyde met the appellant a number of times, that he
studied previous medical reports and that he subjected her to
additional tests. His finding is drafted as follows at
pages 11 and 12 of the letter:
Is Edith Bouchard Totally Disabled?
Yes. This patient has
classical CFS and when it persists for several years as in this
case, then it is considered to be a disabling illness in its own
right. It is my opinion by both history and physical examination
and by observation of this patient during her multiple visits to
my office and inspection of tests done at my request and by other
physicians that Edith Bouchard is and has been totally disabled
with CFS from at least the time that she first visited my office
on May 13, 1997. It is also my opinion by history that she has
been totally disabled for at least several years prior to that
time. Specifically since she first fell ill in 1991. She is
disabled now and is totally incapable to resume her work or any
other reasonable, consistent, remunerative work. Frankly, it
would be a major disservice to return her to work to any employer
now or in the foreseeable future.
Edith Bouchard is suffering
from multiple disabilities, some of which such as her CFS is
severe and prolonged and that in itself make it reasonably
impossible for Edith to be capable of any regular or
substantially gainful occupation. It is my opinion that these
disabilities are due to a CNS [Central Nervous System]
impairment. She has other disabilities, though not major are not
minor either, and the sum of these moderate disabilities such as
the fibromyalgia, possible dementia, and abnormal
neuro-hormonal tests, are together and independent from her
major disability, sufficient to make her incapable of regular
substantial gainful employment due to physical
impairment.
[14]
As stated above, Dr. Georges Mailloux, to whom the tax
authorities, at the appellant's request, sent a T2201 form
and a questionnaire on July 12, 1999, did not complete the
form. Moreover, in the answers he provided on the questionnaire
signed on July 28, 1999, Dr. Mailloux gave the
following diagnosis for 1997 and 1998:
[TRANSLATION]
Sick Building Syndrome
chronic fatigue syndrome and/or fibromyalgia
environmental hypersensitivity
multiple chemical sensitivity
[15]
Nowhere in his other answers to the questions can it be perceived
that he considers those impairments to be so severe and prolonged
that their effects are such that the appellant's ability to
perform a basic activity of daily living is markedly restricted.
At most, he states, under the heading FEEDING & DRESSING,
that the appellant [TRANSLATION] "does everything
slowly".
Relevant Statutory
Provisions
[16]
Subsections 118.3(1) and 118.4(1) provide as
follows:
118.3(1) Credit for
mental or physical impairment — 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) Nature of
impairment — 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.
Subparagraphs 118.3(1)(a.2)(i),(ii) and (iii)
were introduced by a 1998 amendment (S.C. 1998, c. 19, s.
24(1)) applicable to certifications made after February 18,
1997. Paragraph 118.3(1)(a.2) had not theretofore
provided for the specific situation of a hearing
impairment.
Subparagraph 118.3(1)(a.2)(iii) was amended
and subparagraphs (iv) and (v) were added by S.C. 1999,
c. 22, s. 35(1), applicable to certifications made
after February 24, 1998.
Parties' submissions
[17]
Referring to the reasons for judgment of Judge Bowman of
this Court in Radage v.
Canada, [1996] T.C.J. No. 730
(QL), cited by Létourneau J.A. of the Federal Court
of Appeal in Johnston v. Canada, [1998] F.C.J.
No. 169 (QL), counsel for the appellant contended that the
provisions involved in the instant case must be interpreted
compassionately and not narrowly. Counsel for the appellant thus
relied more particularly on the following excerpt found in
paragraph 45 of Judge Bowman's reasons in Radage,
supra:
. . . The intent is neither to give the credit
to everyone who suffers from a disability nor to erect a hurdle
that is impossible for virtually every disabled person to
surmount. It obviously recognizes that disabled persons need such
tax relief and it is intended to be of benefit to such
persons.
[18]
Counsel for the appellant also cited the following passage from
paragraph 10 of the reasons of Létourneau J.A. of the Federal Court of
Appeal in Johnston,supra:
The purpose of sections 118.3 and 118.4 is not
to indemnify a person who suffers from a severe and prolonged
mental or physical impairment, but to financially assist him or
her in bearing the additional costs of living and working
generated by the impairment.
[19]
Pointing out that the appellant's condition had not improved
since 1993, counsel argued that her impairment is without a doubt
prolonged, as required by the Act. As to the manner in
which that impairment restricts the appellant in performing the
basic activities of daily living, he emphasized perception,
thinking and remembering, the restricted nature of which is, in
his view, stressed in the form completed by Dr. Hyde for Quebec income tax purposes and filed in
evidence by the respondent (respondent's book of documents,
tab 3 (see note 1 above)).
[20]
The arguments put forward by counsel for the respondent are
mainly based on the appellant's testimony. Counsel pointed
out that the tests stated in the Act are very restrictive,
although the courts have recognized that they should be
interpreted with a certain amount of compassion. Counsel
acknowledged that, as a result of her illness, the appellant
experienced certain problems with respect to thinking,
remembering, feeding herself and walking. However, he referred to
the two forms completed by Dr. Hyde, according to which the appellant is able
to feed herself and to walk. As to the mental functions question,
the answers on the two forms are somewhat different. Thus, on the
first form (for Revenue Quebec), with respect to mental functions
Dr. Hyde cites memory problems, whereas, on the second form
(for Revenue Canada), in response to the question "Is your
patient able to think, perceive, and remember, using medication
or therapy if necessary? (For example, can he or she manage
personal affairs or do personal care without supervision?)",
he answers yes. To a similar question worded as follows on the
Revenue Quebec form: [TRANSLATION] "Is your patient
able to perceive, think and remember without requiring an
inordinate amount of time to do so, even with therapy or
prescribed devices or medication if necessary? An inability to
manage one's personal affairs (provide oneself with food,
clothing, etc.) or to attend to one's personal care (feeding,
dressing oneself, etc.) without supervision may constitute a
severe impairment", Dr. Hyde checked no answer, but
added the following note: [TRANSLATION] "Problems of memory
and severe fatigue and pain syndromes. See letter attached."
In view of this apparent contradiction, counsel for the
respondent argued that the appellant's testimony offered a
better indication of the extent of her impairment.
[21]
Counsel for the respondent emphasized in this regard that the
appellant admitted that she occasionally prepared meals for
herself, albeit light ones, since she had a homemaker who usually
made her meals. She also admitted to sometimes going to do her
shopping herself, although she found it very tiring. Counsel
pointed out that these admissions supported a finding that the
appellant is able to feed herself adequately and to walk. As to
thinking and remembering, counsel emphasized that the appellant,
together with one of her sisters, looked after the finances of
another, severely impaired, sister who lives with her. He also
noted the speed with which the appellant, at the hearing,
identified, at her counsel's request, a specific passage
from Dr. Hyde's letter, and
this, according to counsel for the respondent, showed that the
appellant had memory.
[22]
Counsel for the respondent asserted that the impairments which
the appellant described in relation to walking, feeding herself,
thinking and remembering are not sufficiently severe to affect
the basic activities of daily living and thus do not entitle her
to the credit provided for in sections 118.3 and 118.4 of the Act.
[23]
In addition, counsel for the respondent referred to
paragraph 118.4(1)(d),
which specifies that working, housekeeping or a social or
recreational activity are not to be considered as a basic
activity of daily living. In counsel's view, the basic
activities of daily living within the meaning of the Act
are thus limited to life-sustaining activities rather than
activities of living.
[24]
Relying as well on the appellant's statement that her
symptoms varied from day to day, counsel for the respondent
referred to Sarkar v.
Canada, [1995] T.C.J. No. 669
(QL), in which Judge Sarchuk held in paragraphs 19 to
21 that the requirement of paragraph 118.4(1)(b) that
an individual must be "all or substantially all of the time
. . . unable (or require. . . an inordinate amount of time) to
perform a basic activity of daily living" is not met by
intermittent bouts of illness, even if that illness causes a
severe impairment. Counsel cited the following from
paragraph 22 of Judge Sarchuk's reasons for
judgment:
. . . However it is obvious that Parliament,
as a matter of policy, intended to create a high threshold
regarding the level of disability which must be met in order to
qualify. That is the only way to read that section, particularly
in view of the fact that it was not worded as strictly before and
the legislators amended it to make it stricter. I cannot read it
in any other fashion.
[25]
Counsel for the respondent also relied on Campbell v. Canada, [1996]
T.C.J. No. 513 (QL), in which Judge Rowe concluded as
follows in paragraph 19:
. . . I find on the evidence that during 1992
and 1993, the appellant had more bad days than good days but she
was able to drive her car to the location of her medical
professionals and to walk to their office during her visits
which, during certain periods, could be as frequent as two or
three times per week. . . .
[26]
Counsel also cited paragraph 21 of Judge Rowe's
reasons:
. . . There is no doubt the legislation is
designed to bar the claim for all but the most severely
handicapped. The problem is exacerbated by the unevenness of
assessments from year to year and from person to person suffering
from the same disability. It makes it more difficult to
understand when many of these persons gather together in support
groups and discuss the acceptance or rejection of their claims.
These are matters which are within the ability of the Minister to
address and are not capable of being remedied by this Court. It
is also not the function of the Court to validate, as deserving
of increased recognition, a particular disease or condition that
may be poorly understood by the majority of medical
practitioners.
[27]
Lastly, counsel for the respondent referred to the following
passage from Judge Bowman's reasons in Radage, supra,
in paragraph 45:
. . . In these guidelines I have emphasized
the need to recognize the way in which one function depends on
the others, and to attempt to relate the use of those functions
to some meaningful result in everyday
life.
(e) Finally there must be considered -- and
this is the most difficult principle to formulate -- the criteria
to be employed in forming the judgement whether the mental
impairment is of such severity that the person is entitled to the
credit, i.e. that that person's ability to perceive, think
and remember is markedly restricted within the meaning of the
Act. It does not necessarily involve a state of complete
automatism or anoesis, but it should be of such a severity that
it affects and permeates his or her life to a degree that it
renders that person incapable of performing such mental tasks as
will enable him or her to function independently and with
reasonable competence in everyday life.
[28]
In conclusion, counsel for the respondent contended that the
appellant's testimony, while it reveals that the appellant
was severely restricted by her illness, does not show that she
was sufficiently restricted to meet the tests of
section 118.4 of the
Act.
Analysis
[29]
In Radage, supra, Judge Bowman sets out certain
general principles concerning the application of
sections 118.3 and 118.4 of the Act. In particular,
he states in paragraph 45 of his reasons:
. . . (b) The court must,
while recognizing the narrowness of the tests enumerated in
sections 118.3 and 118.4, construe the provisions liberally,
humanely and compassionately and not narrowly and
technically.
. .
.
[30]
These comments were moreover echoed by
Létourneau J.A. of the Federal Court of Appeal
in Johnston, supra. In this regard, Létourneau J.A.
wrote as follows in paragraph 11:
Indeed, although the scope of these provisions
is limited in their application to severely impaired persons,
they must not be interpreted so restrictively as to negate or
compromise the legislative intent.
[31]
In addition to the decisions cited by the parties, there has been
a number of rulings by this Court on the application of
sections 118.3 and 118.4 of the
Act in cases involving persons with chronic fatigue
syndrome.
[32]
It goes without saying, however, that while certain decisions may
enlighten the Court, each case stands on its own merits and must
be decided on its own facts as these are revealed by the evidence
analyzed on the basis of the burden of proof and degree of proof
required. In this regard, it should be pointed out that the
burden was on the appellant to prove on a balance of
probabilities the facts establishing, in light of the conditions
set out in the relevant provisions of the Act, entitlement
to the credit claimed. The exercise of comparing facts which may
present certain similarities therefore cannot replace the
application of the statutory provisions, and of the requirements
stated therein, to the circumstances proven in a given
case.
[33]
As a condition of eligibility for the credit for mental or
physical impairment, paragraph 118.3(1)(a.2) requires
in particular a certification in the prescribed form by a medical
doctor (or, depending on the impairment, by another of the
persons mentioned) "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." As well,
paragraph 118.3(1)(b) requires the individual
claiming the credit to file with the Minister, for a taxation
year, the certificate described in
paragraph (a.2).
[34]
The prescribed form, as we know, is form T2201. Not only must
that form obligatorily be completed by one of the persons
referred to in paragraph 118.3(1)(a.2), it must also
certify that the impairment is a severe and prolonged mental or
physical impairment the effects of which are those indicated,
based on the various definitions set out in section 118.4 of
the Act. The certificate in the prescribed form must then
be filed with the Minister. The certificate requirement is not
merely directory; it is mandatory. In MacIsaac v. Canada;
Morrison v. Canada, [1999] F.C.J. No. 1898 (QL), the
Federal Court of Appeal emphasized in the following terms, in
paragraphs 3 to 6 of its reasons for judgment, the mandatory
nature of this requirement laid down in
paragraph 118.3(1)(a.2):
[para 3] Revenue Canada issued T-2201 Forms to
be completed by doctors who have examined applicants for
disability tax credits. Those forms were filled out in both cases
but it is unclear to us as to whether they are in compliance with
the above sections.
[para 4] The Tax Court Judge allowed both
appeals on the basis that in his judgment both Respondents met
the criteria established by Section 118.4(1). In considering the
forms at issue in this appeal he said in the Morrison
case:
"I have therefore concluded that the
requirement in paragraph 118.3(1)(a.2) is directory only, and not
mandatory."
[para 5] While we sympathize with both
Respondents and with the position taken by the Tax Court Judge we
cannot agree with him on this question. Section 118.3(1)(a.2) of
the Income Tax Act is not merely directory. It is mandatory.
Simply put, there must be a certificate by the doctor that
the individual suffers impairments in the language of these
subsections. This Court held to the same effect in
Partanen v. Canada, [1999] F.C.J.
751 and we feel bound by this decision.
[para 6] It is not obvious that putting the
questions as they are in this form results in a thorough
consideration by the doctor of the questions confronting him.
Putting checks in boxes is perhaps not the best way of
eliciting a just result. Nevertheless the Act requires such
certificates as a prerequisite to obtaining disability tax
credits.
(Emphasis
added.)
[35]
In the instant case, the prescribed form T2201 completed by
Dr. Hyde at the appellant's request does not indicate
that the appellant suffers from a severe and prolonged mental or
physical impairment within the meaning of sections 118.3 and
118.4 of the Act. Although the appellant expressed some
reservations about the probative value of the answers given by
Dr. Hyde, I should point out here that it was the appellant
herself who decided to have the form filled out by that
physician, whom she moreover consulted on a number of occasions.
Furthermore, according to the letter dated June 30, 1998
(respondent's documents, tab 4) which he sent to counsel
for the appellant, Dr. Hyde is clearly a physician who has
extensive knowledge of chronic fatigue syndrome and who was most
certainly able to appreciate the nature and extent of the
symptoms presented by the appellant. As stated in his curriculum
vitae at the beginning of that letter, he has worked in a
Francophone environment at the Hôtel-Dieu de
Montréal and published a study in French on chronic
fatigue syndrome. I therefore find it implausible that he might
not have understood or that he might have misinterpreted the
questions asked.
[36]
With respect to the 1998 taxation year, the appellant chose
Dr. Georges Mailloux to complete the prescribed form.
The tax authorities sent him the form as well as a questionnaire.
The prescribed form was not completed by Dr. Mailloux. At
least, it was never filed with tax authorities. Moreover, the
answers given in the questionnaire and stated to apply to 1997
and 1998 do not provide a basis for concluding that the appellant
had a severe and prolonged mental or physical impairment as
contemplated in sections 118.3 and 118.4 of the Act.
Here again, the requirements of
paragraph 118.3(1)(a.2) of the Act were
clearly not met.
[37]
The absence of certification in prescribed form of the existence
of a severe and prolonged mental or physical impairment for both
1997 and 1998 constitutes the basis of the assessments for those
two years, as stated in paragraphs 11 and 12 of the Reply to
the Notice of Appeal. This fact was not disputed by counsel for
the appellant.
[38]
The absence of certification in prescribed form that the
appellant has a severe and prolonged impairment within the
meaning of sections 118.3 and 118.4 of the Act is
fatal since the conditions stated in subsection 118.3(1) are
cumulative. In the circumstances, it is pointless to conduct a
detailed analysis of the evidence adduced by the appellant to
determine whether, on a balance of probabilities, she in fact has
a severe and prolonged mental or physical impairment that meets
the condition set out in paragraph 118.3(1)(a) of the
Act.
[39]
I will nevertheless say that the evidence presented was far from
convincing on this point, even though I must acknowledge the
serious and severe nature of the appellant's ailment. Thus,
for example, while the appellant testified that she had to wait
until she had taken her first meal before she could dress herself
without taking an hour or more to do so, she did not state how
much time she had to devote to that activity when she dressed
after eating. As to feeding herself, she testified that she
occasionally prepared light meals for herself. She did not
specify the amount of time required to do this and to eat. She
also testified that she took walks with her dog and sometimes
went shopping, although she had to limit the length of her
outings as a result of her illness. She provided no details
concerning the rate at which she walked or the frequency of the
breaks she had to take.
[40]
Lastly, I would note that the receipts the appellant attached to
her income tax returns for 1997 and 1998 show numerous automobile
trips made from Jonquière to Québec,
Montréal and Ottawa, in particular to meet her doctors,
including Dr. Hyde, and her lawyer. These were trips of
several hours in length which the appellant was able to make,
which indicates a certain ability to perform activities going
beyond those described as basic activities of daily living in
paragraph 118.4(1)(c) of the Act.
[41]
In view of the foregoing, the appeals are dismissed.
Signed at Ottawa, Canada, this 7th day
of September 2001.
"P. R.
Dussault"
J.T.C.C.
Translation certified true on this 12th
day of June 2002.
[OFFICIAL ENGLISH
TRANSLATION]
Erich Klein, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-452(IT)I
BETWEEN:
ÉDITH BOUCHARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeals heard on June 15, 2001, at
Québec, Quebec, by
the Honourable Judge P. R. Dussault
Appearances
Counsel for the
Appellant:
Gaétan Drolet
Counsel for the
Respondent:
Vlad
Zolia
JUDGMENT
The appeals from the assessments made under
the Income Tax Act for the 1997 and 1998 taxation years
are dismissed, the whole in accordance with the attached Reasons
for Judgment.
Signed at Ottawa, Canada, this 7th day of September
2001.
J.T.C.C.
Translation certified true
on this 12th day of June 2002.
Erich Klein, Revisor
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