Date: 20010517
Docket: 2000-4473-IT-I
BETWEEN:
RAY F. HAMILTON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
_________________________________________________
Agent for the
Appellant:
Quintin Wight
Counsel for the
Respondent:
Shalene Curtis-Micallef
_________________________________________________
Reasons for Judgment
(delivered orally from the Bench on April 5, 2001 at Ottawa,
Ontario)
Campbell, J.
[1]
This is an appeal from an assessment made by the Minister of
National Revenue (the "Minister"), for the 1999
taxation year.
[2]
The issue is whether the Appellant, Ray Hamilton, is entitled to
a tax credit for physical impairment, pursuant to sections 118.3
and 118.4, of the Income Tax Act (the
"Act"), by reason of the effect of celiac
disease. More specifically, I must decide whether the
Appellant's impairment is a severe and prolonged physical
impairment, which markedly restricts his ability to perform a
basic activity of daily living, in accordance with paragraph
118.4(1)(b).
[3]
Section 118.4 clarifies and restricts section 118.3 and states
that the impairment is prolonged where it has lasted or can
reasonably be expected to last for a continuous period of at
least 12 months (subparagraph 118.4(1)(a)).
[4]
Paragraph 118.4(1)(b) sets out that an individual's
ability to perform a basic activity of daily living is markedly
restricted where all or substantially all of the time, even with
therapy and the use of appropriate devices and medication, the
individual is unable to perform a basic activity of daily living.
The basic activity of daily living which the Appellant contends
is markedly restricted, is "feeding oneself", as set
out in subparagraph 118.4(1)(c)(ii).
[5]
It is the Appellant's position that his ability to feed
himself is markedly restricted, as it takes him an inordinate
amount of time to perform this activity. The Respondent contends
that the language of the provisions in the Act is not broad
enough to encompass those activities of the Appellant and if they
are broad enough, "shopping" for the appropriate food
is not included in the definition.
Facts
[6]
The Appellant is a retired individual who has suffered with
celiac disease since 1983. As a diabetic since 1979 he is also
dependent on insulin.
[7]
In celiac disease, according to Barbara Wendland, an expert in
this area, called by the Respondent, gluten contained in some
food products causes a "shaving away" or
"eroding" of the villi contained on the surface on
the inside surface of the inside lining of the bowel. The villi
may be destroyed, and as a result, nutrients cannot be absorbed
from food, causing a whole host of other problems and
susceptibility to diseases.
[8]
Ms. Wendland stated that the spectrum of five products that
causes the symptoms are: wheat, rye, barley, oats and
triticale.
[9]
All of the evidence and the exhibits filed indicate that this
disease is permanent, incurable and maybe life threatening,
unless a gluten-free diet is strictly followed.
[10] Gluten is
found in a wide variety of products, and may even be present in
such far ranging products as some toothpaste, icing sugar, some
pharmaceutical products such as vitamin supplements and may be
included in some make-up products such as lipstick. It is
essential the Appellant read the label of all products he intends
to ingest. It was the evidence of the Appellant that he must
check the labels of brand name products each and every time he
buys, as manufacturers, being profit motivated, may reformulate
the ingredients with no notice to the consumer. A brand product
then, that the celiac could rely on for a period of time, may
suddenly change its ingredients and no longer be gluten-free.
There are the obvious fresh, raw or natural foods that are safe,
for example, fresh fruits and vegetables, rice, potatoes,
chicken, meat. However, among those so called "safe"
gluten-free products, the evidence was that the celiac patients
still have to remain vigilant if such foods were processed or
cross contaminated.
[11] The
Appellant argued that this greatly increased the amount of time
he had to spend to shop for gluten-free products. He also stated
that these diet restrictions affected the appropriate nutrition
he required as a diabetic. He stated that he modified his celiac
diet to accommodate his diabetes to ensure he received proper
levels of calories, etc., as a diabetic. In addition to the time
reading labels on each shopping excursion, the Appellant stated
that, in each month, he would make one to several calls to
manufacturers reciting new bar codes and numbers from products to
ascertain if the same product he had been purchasing was still
suitable for his diet, as the codes had changed.
[12] He shops
at specialty stores and at a regular retail establishments to
obtain the necessary replacement food products.
[13] After
years of reading labels and shopping, he stated that he had used
the guidelines contained in a pamphlet published by the Canadian
Celiac Association entitled "Eat well, Be well"
(Exhibit A-4) but stated that he had to continue to be vigilant
in reading labels each time he shopped. He stated that it did not
take him longer to eat but the time-consuming activity was in the
purchasing and the preparation.
[14] At home,
separate storage of his products, use of a separate area of the
toaster and separate utensils, pots and pans are maintained to
prevent cross contamination.
[15]
Gluten-free baked products take longer to prepare and cook. The
Appellant's gluten-free products are prepared first before
his wife's regular foods, again to prevent cross
contamination.
[16] Exhibit
A-3 explains cross contamination as a process by which a
gluten-free product loses that status because it comes in
contact with something that is not gluten-free. For example,
cross contamination could potentially occur if gluten-free and
gluten containing products were prepared on the same counter or
using the same utensils without adequate cleaning. The evidence
of the Appellant was that he had to be cautious not only of the
ingredients in gluten-free food but also wary of the possibility
of cross contamination in the preparation of food at home, in
restaurants, and in the purchase of some products, as well.
[17] The
Appellant's wife gave evidence which corroborated that of her
husband's. She stated that she prepared the food for both,
with the Appellant assisting, and on occasion he prepared his own
meals. All recipes for the Appellant must be adapted to his diet
restrictions, both celiac and diabetic.
[18] Gillian
MacDonnell, President of the Canadian Celiac Association, also
gave evidence and corroborated the Appellant's evidence that
even if a celiac is familiar with a label, he or she must
continue to check labels for changes by the manufacturer. Ms.
MacDonnell confirmed that the pamphlet (Exhibit A-4)
"Eat well, Be well" referred to and used by the expert,
Barbara Wendland, when establishing dietary guidelines for
and in counselling celiac patients, was simply that - a
reasonable starting guide for celiacs but that the Celiac
Association could not keep up, on a regular basis, with constant
manufacturer labelling changes.
[19] She
stated that all labels must still be checked on a continuous
basis with the occasional check with a manufacturer. In fact,
this pamphlet contains the following cautionary note:
Manufacturers frequently change the ingredients used in their
products.
Note that a variation in name or the addition of words such as
"New or "Improved" may indicate that different
ingredients have been introduced. Celiacs should carefully read
all labels on a regular basis to ensure that products have
remained gluten-free. In addition ... Canadian law does not
require manufacturers to list ingredients which may contain
gluten used in the processing or packaging of foods or
beverages.
[20] Ms.
MacDonnell also confirmed that baking was a trial and error
experience with a 50% success rate in her particular case. She
herself has had celiac disease for 16 years and stated that over
time, familiarity with labels, products and stores, develops but
that the time spent on these activities does not subside
substantially over time.
[21] Relating
this to her own particular experience, she stated her time
devoted to these activities might have been reduced by one-third
of the original amount of time she spent on such activities after
first contracting the disease.
[22] The
Disability Tax Credit Certificate (Exhibit R-1), filed in
evidence confirmed at paragraphs 8 and 9 that the impairment was
severe enough to restrict the basic activities of daily living
and that it has lasted and was expected to last for a continuous
period of at least 12 months.
Analysis
[23] It is
clear that the Appellant suffers from celiac disease and that
this disease has lasted for the past 17 to 18 years. No cure is
available and the only control/treatment is the implementation of
the specific gluten-free diet. The evidence supports that the
Appellant is suffering from a severe and prolonged
impairment.
[24] What I
must then, determine in the circumstances of the present case, is
whether the Appellant's ability to perform a basic activity
of daily living, i.e. feeding oneself, is markedly restricted.
Paragraph 118.4(1)(b) sets out the criteria that the
Appellant must all or substantially all of the time be unable to
perform that activity or require an "inordinate amount of
time in which to do so". Therefore, does the Appellant
devote an inordinate or excessive amount of time to performing
the activity of feeding himself such that, given the facts before
me, he is markedly restricted in feeding himself?
[25] In
considering this same issue, Judge Lamarre in Leduc v. The
Queen [1999] T.C.J. No. 765 relied on Létourneau, J.A.
of the Federal Court of Appeal in Robert C. Johnston v.
The Queen, 98 D.T.C. 6169 case. The Federal Court of Appeal
in Johnston considered the appeal of a taxpayer who had
been born with a congenital condition which affected the
taxpayer's ability to walk, and feed and dress himself. At
page 6172, Létourneau, J.A. discussed the notion of
"markedly restricted" as follows:
The expression "markedly restricted" has been defined
to refer to an individual's inability, at all or
substantially all of the time, even with therapy and the use of
appropriate device and medication, to perform a basic activity of
daily living. An individual's ability is also deemed to be
markedly restricted if he requires an inordinate amount of time
to perform such activity. (Emphasis added)
No definition has been given of what constitutes an inordinate
amount of time in the performance of the basic activities of
daily living. In my view, the expression "inordinate amount
of time" refers to an excessive amount of time, that is to
say one much longer than what is usually required by normal
people. It requires a marked departure from normality."
[26] Judge
Bonner of this Court discussed the act of feeding oneself in
M.R. Hodgin v. The Queen, [1995] T.C.J. No.
1183 and stated:
I turn next to feeding oneself. That involves, in my view,
something more than eating a meal prepared by another person. One
cannot feed oneself unless one is capable of taking basic
foodstuffs in the form commonly available in a grocery
store and cooking or otherwise preparing and setting
out a meal. The test is feeding oneself, not simply eating
a meal. The language of the legislation is clear in that
respect. The requisite ability to feed oneself involves the
ability to prepare a reasonable range of food and not just
to prepare and set out snacks, junk foods or frozen dinners.
(Emphasis added)
[27]
Létourneau, J.A. in the Johnston case agreed with
the above caption quote from Judge Bonner's decision and went
on to state that the notion of feeding oneself involves the
ability to prepare a meal which conforms to a medically
prescribed diet.
[28] I am
aware that there are two lines of thought in this Court with
respect to this very issue. All are under the informal procedure
and are not of precedential value. On the evidence presented
before me, I find that the Appellant must take an inordinate or
excessive amount of time to prepare his meals in comparison to
that of healthy persons not afflicted with celiac disease. The
preparation of a reasonable variety of foods, sufficient to
maintain a gluten-free diet and yet complement his diabetic
requirements, requires the following:
(1)
Canvassing several retail outlets for food products not commonly
available in grocery stores.
(2)
Reading each and every label, even those purchased regularly due
to manufacturer changes.
(3)
Monthly calls to the manufacturer to ascertain certainty of
ingredients.
(4)
Time spent locating, reading and adapting recipes to ensure
reasonable range of food.
(5)
Time spent in preparation and cooking time in excess of that
involved in a healthy person's diet.
(6) Separation of
products, utensils, pots and pans to prevent cross contamination
of gluten-free products with those food products which are
not.
(7) Additional kitchen
cleanliness procedures not normally required for healthy
persons.
[29] Such
activities together are a marked departure from normality and
represent a significant departure from what is common and
customary. The Federal Court of Appeal in Johnston has
stated that the notion of feeding oneself involves the ability to
prepare a meal. Respondent's counsel argued that the act of
shopping is not a part of the act of feeding oneself. I cannot
agree. The purchase and preparation of gluten-free foods is the
only avenue of control for this life threatening disease. To
prepare appropriate nutritious gluten-free meals, the Appellant
must shop for the proper food products. Without those he clearly
cannot prepare a meal to satisfy both a gluten-free and diabetic
diet. Shopping is the first logical step in this preparation
process. I conclude that the preparation of meals for this
Appellant involves shopping for and the selection of gluten-free
foods with the attendant additional time expended including label
reading, checking with manufacturers ensuring no cross
contamination, adapting recipes, separation of products,
additional preparation and cooking time to ensure a food item is
gluten-free. This is more than mere inconvenience. The totality
of all these activities taken together in anticipation of
preparing every meal as gluten-free equates to an
inordinate amount of time spent on feeding oneself compared to
the time spent by the ordinary healthy person following a routine
diet. The Appellant must live within the long shadow of this
disease and in doing so must bear the additional costs and expend
the necessary time to control this impairment. Judge Bowman of
this Court stated in Radage v. The Queen, 96 D.T.C.
1615 at page 1625:
...If the object of Parliament, which is to give to disabled
persons a measure of relief that will to some degree alleviate
the increased difficulties under which their impairment forces
them to live, is to be achieved the provision must be given a
humane and compassionate construction.
[30] In this
same case, Judge Bowman went on to say that if there is doubt on
which side of the line a claimant falls, the doubt should be
resolved in favour of the claimant. In every case involving these
provisions, this statement of Bowman's must in the end be the
guiding directive.
[31] For these
reasons, I allow the appeal and refer the assessment back to the
Minister for reconsideration and reassessment on the basis that
the Appellant is entitled to the section 118.3 disability tax
credit for the 1999 taxation year.
Signed at Ottawa, Canada, this 17th day of May 2001.
"D. Campbell"
J.T.C.C.
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