[OFFICIAL ENGLISH TRANSLATION]
Date: 19990521
Docket: 98-2310(IT)I
BETWEEN:
JEAN-PIERRE BÉRUBÉ,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Somers, D.J.T.C.C.
[1] The appellant served on the
Minister of National Revenue ("the Minister") a notice
of objection to the Minister's refusal to grant him the tax
credit for a severe and prolonged mental or physical impairment
for the 1996 taxation year.
[2] The appellant was the only witness
heard in this case. He explained his disability, which he has had
since birth. He has clubfeet, which reduces his ability to
walk.
[3] The appellant is a
41-year-old man with a CEGEP education, which he
completed in 1979. After his studies, he worked as a truck driver
transporting goods in the Rimouski area for two years. He was
able to do that work with assistance and sometimes alone. He
worked in Baie-Comeau as a mechanic for two years. For
three to seven years, he was a logging equipment operator,
driving a delimber and a skidder. During that time, he was able
to drive a truck.
[4] Since 1993, he has been working
for a school board in Senneterre, Quebec, as a maintenance
worker. He manages the ventilation, cooling and heating system.
He drives his own vehicle to get to the school at about
7:45 a.m.
[5] His job enables him to work in a
mainly seated position. He has to walk 10 or so times a day
to go to the secretary's office, which is about
20 metres away, to the cafeteria 30 metres away and to
the bathroom 10 metres away, which he does without using a
cane. He occasionally has to wear prostheses. He can walk
100 metres without a cane. Because of the pain in his feet,
he has to take aspirin or Tylenol three or four times a week.
[6] His visits to the doctor are
limited to about two every three years. Medical reports
explaining his physical disability were filed.
[7] In making and confirming the
assessment for the 1996 taxation year, the Minister assumed,
inter alia, the following facts set out in
paragraph 6 of the Reply to the Notice of Appeal:
[TRANSLATION]
(a) a T2201 (96)
form, the Disability Tax Credit Certificate, was completed on
September 8, 1997, by a licensed doctor,
Dr. Juan Carlos L. Chirgwin, who diagnosed his patient
as having clubfeet; however, his view was that the appellant
could walk using an aid;
(b) on
November 27, 1997, the Minister acknowledged receipt of
a second T2201 (96) form, the Disability Tax Credit Certificate,
that had been completed on November 27, 1997, by a
licensed doctor, Dr. Juan Carlos L. Chirgwin, who diagnosed
his patient as having clubfeet and as being unable to walk
50 metres on level ground using an aid;
(c) on
December 24, 1997, the Minister requested
Dr. Juan Carlos L. Chirgwin in writing to complete a
questionnaire concerning the appellant's ability to walk;
(d) on
January 28, 1998, the Minister sent the Disability Tax
Credit (DTC) committee in Ottawa the two T2201 (96) forms that
the appellant had submitted to him as well as the questionnaire
completed by Dr. Juan Carlos L. Chirgwin on
January 6, 1998;
(e) on
February 4, 1998, the DTC committee, after checking
into the matter, determined that during the 1996 taxation year
the appellant was not markedly restricted in performing the basic
activities of daily living because of a severe and prolonged
mental or physical impairment;
(f) the
Minister determined that the appellant is not markedly restricted
in performing the basic activities of daily living;
(g) during the 1996
taxation year, the appellant was not clearly restricted in
performing the activities of daily living because of a severe and
prolonged mental or physical impairment.
[8] In the questionnaire he completed,
Dr. Juan Carlos L. Chirgwin stated that the
appellant is not confined to bed and does not use a wheelchair.
He can walk using specialized prostheses. Dr. Chirgwin
stated that the appellant has a 25 percent inability to walk
even with the use of aids. In conclusion, his disability could
deteriorate with time and affect his degree of functional
limitations.
[9] Subsections 118.3(1) and 118.4(1)
of the Income Tax Act ("the Act") and
Regulations for 1996, which apply to a severe and
prolonged mental or physical impairment, read 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) a medical doctor, or where the impairment
is an impairment of sight, a medical doctor or an optometrist,
has certified in prescribed form that the individual has 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.
[10] Paragraph 118.4(1)(b) uses the
term "markedly". The case law has defined that term as
follows:
. . . 'markedly restricted' will continue to mean
that, despite the use of medication, therapy or devices, the
effect of the impairment is to greatly restrict the performance
of activities of daily living.
[11] The evidence showed that the appellant
has a severe and prolonged physical disability. However, he can
attend to his daily business without being markedly
restricted.
[12] He can walk 100 metres without a
cane. He occasionally uses prostheses. He must take aspirin or
Tylenol two or three times a week to relieve his pain. His
disability does not prevent him from driving his car or walking
while at work. These symptoms do not meet the definition of
"markedly".
[13] Although the Court sympathizes with the
appellant because of his physical disability, he is able to
engage in the basic activities of daily living. If his disability
worsens, his condition might meet the conditions imposed by the
Act.
[14] The Minister was right in concluding
that the appellant is not entitled to the disability tax credit
for the 1996 taxation year because he was not clearly restricted
in performing the activities of daily living as a result of a
severe and prolonged mental or physical impairment within the
meaning of sections 118.3 and 118.4 of the Act.
[15] The appeal is therefore dismissed.
Signed at Ottawa, Canada, this 21st day of May
1999.
D.J.T.C.C.
Translation certified true
on this 10th day of July 2003.
Sophie Debbané, Revisor
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