Date: 20010209
Docket: 2000-659-IT-I
BETWEEN:
PAOLINA FERRARI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Sarchuk J.T.C.C.
[1]
In computing taxes payable for the 1996, 1997 and 1998 taxation
years, the Appellant, Paolina Ferrari, claimed a non-refundable
tax credit in respect of a disability amount. The Minister of
National Revenue disallowed the Appellant's claim for the tax
credit in any of those taxation years on the basis that she was
not markedly restricted in her ability to perform a basic
activity of daily living under paragraph 118.4(1)(b) of
the Income Tax Act (the Act). This appeal
followed.
[2]
At the commencement of the trial, the Minister moved to quash the
purported appeal for the 1996 taxation year on the basis that the
provisions of section 169 of the Act had not been complied
with since no notice of objection had been served with respect to
the assessment of tax for that year within the time limit
provided by paragraph 165(1)(a) of the Act. Upon
reading the affidavit of Dennis Jenkinson and hearing the
submissions made on behalf of the Appellant, it was evident that
the notice of objection had not been made within the time limit
prescribed. Accordingly, this Court is unable to grant the relief
sought with respect to the 1996 taxation year.
[3]
With respect to the 1997 and 1998 taxation years, evidence was
adduced from the Appellant and from her son, Frank Ferrari. The
essential facts are as follows. The Appellant is now 65 years of
age and is retired. In or about 1991, while still employed, she
commenced to have sporadic bouts of dizziness accompanied by
nausea which, as time progressed, increased in severity.
Ultimately, she was diagnosed as having Menieres disease, the
primary symptoms of which are hearing loss, vertigo and tinnitus.
At some point of time, surgery was performed in an effort to
rectify the problem. It was not successful. During the taxation
years in issue, she continued to have periodic bouts of
dizziness, nausea, and loss of balance. As a result, she said, it
was virtually impossible for her to walk unaided or to feed and
dress herself. She described the discomfort during the attacks as
so severe that she was forced to lie down and remain absolutely
still. She also stated that on occasion it was necessary for her
to be taken to the hospital for an anti-nausea injection.
Although reference was made to a loss of hearing for the purpose
of these appeals the impairment primarily relied upon by the
Appellant was her inability to walk.
[4]
Disability tax credit certificates completed by the
Appellant's family doctor, Hanna M. Hinnawi, for taxation
years 1996, 1997 and 1998 were filed.[1] However, the doctor's comments in
these certificates are equivocal and do not adequately support
the Appellant's position.
[5]
The disability tax credit sought by the Appellant is available to
individuals who fall within the requirements of the provisions of
sections 118.3 and 118.4 of the Act. The relevant portions
of these sections read:
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
...
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)
...
(ii)
feeding and dressing oneself,
(iii)
hearing so as to be understood, in a quiet setting, by another
person familiar with the individual,
...
(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.
[6]
In Marilyn Friis v. The Queen,[2] Linden J.A. made the following
observation with respect to the legislation in issue in the
present appeal:
In my view, this section 28 application should be allowed in the
light of this Court's decision in Johnston v. Canada,
[1998] F.C.J. No. 169 which was released following the Tax Court
Judge's decision in this case. In that case, Justice
Létourneau, quoting Judge Bowman in another case
(Radage v. R., [1996] 3 C.T.C. 2510), indicated that these
"provisions must be given a humane and compassionate
construction" and should not be interpreted "so
restrictively as to negate or comprise (sic) the
legislative intent", which is to "provide modest relief
to persons who fall within a relatively restricted category of
markedly physically or mentally impaired persons. The intent is
neither to give the credit to every one 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".
[7]
On the evidence before me, I am unable to conclude that the
Appellant falls within the meaning of the words in paragraph
118.4(1)(b) of the Act. I accept that the quality
of her life has been affected and that to some extent her
lifestyle has been limited. However, the evidence of the
Appellant and that of her son fails to establish that she was
markedly restricted in her activities of daily living all or
substantially all of the time.
[8]
As previously noted, Dr. Hinnawi did state that the
Appellant's impairment was severe enough to restrict the
basic activity of daily living, i.e. walking, all of the time.
However, these answers are not consistent with other responses
made by the doctor in the certificates. In three of the four, she
responded yes to the question "Is you patient able to
walk...?". In the fourth (Exhibit R-1), she responded
no with the added comment "with dizzy attacks cannot walk
(loss of balance". Furthermore, both the Appellant and her
son stated that the incapacitating attacks during the taxation
years in issue were sporadic in nature occurring on average three
or four times per month. There is no evidence before me to
support that at all other times her ability to perform a basic
activity of daily living was impaired within the meaning of
subsection 118.4(1).
[9]
The phrase "all or substantially all of the time" is
not defined in the Act. By reference to standard
dictionaries, one finds that "all" means, inter
alia: the whole amount, extent, substance, or compass of; the
whole; all that is possible; the entire number of, without
exception; every. "Substantially" which is used in the
phrase as a modifier means: "in substance, or in the
main". I accept that the section should not be interpreted
"so restrictively as to negate or compromise the legislative
intent". However, on the evidence the most favourable
conclusion that I can reach is that the Appellant suffers from
intermittent or sporadic bouts of dizziness and nausea which are
severe enough to be incapacitating. There is no mathematical
formula by which one can determine what "substantially
all" means in any particular case. In my view, however,
three or four such episodes per month cannot be what the
legislators intended to be the meaning of the requirement
"all or substantially all" found in paragraph
118.4(1)(b) of the Act.
[10] The
appeals are dismissed.
Signed at Ottawa, Canada, this 9th day of February, 2001.
"A.A. Sarchuk"
J.T.C.C.
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