[OFFICIAL ENGLISH TRANSLATION]
Date: 20000405
Docket: 98-2802(IT)I
BETWEEN:
CLAUDE BÉLANGER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Dussault, J.T.C.C.
[1] This is an appeal from an
assessment for the 1996 taxation year in which the Minister of
National Revenue (the "Minister") disallowed the appellant's
claim for a tax credit for mental or physical impairment provided
for in sections 118.3 and 118.4 of the Income Tax Act (the
"Act").
[2] Paragraphs (a) to
(c) of subsection 118.3(1) state that the following
conditions must be present to be entitled to the tax credit for
mental or physical impairment:
(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, . . .
[3] In addition, for the purposes of
section 118.3 and subsection 118.4(1), paragraphs (a) to
(d) of subsection 118.4(1) provide as follows:
(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.
[4] The appellant and Dr. Nil
Lefrançois testified.
[5] The appellant, now 49 years old,
has suffered from cerebral palsy since birth. According to a
medical report completed on March 13, 1995, by Dr. Jacques
Laflamme of the Clinique de médecine industrielle du
Québec filed in evidence by the appellant (Exhibit A-1),
the cerebral palsy [TRANSLATION] "would have resulted in a
cerebral motor disability". In the report, Dr. Laflamme
adds:
[TRANSLATION]
Mr. Bélanger has made many efforts to try to recover
from his condition and was, for a long time, at the Institut
Cardinal Villeneuve de Québec. Since then, he has been
treated neurologically and rheumatologically and also by his
family doctor, Dr. Nelson Turmel. Since January, he has already
seen his doctor two or three times.
Mr. Bélanger reports repetitive vertebral strain and
also muscular strain in his hips and right leg.
[6] Following an in-depth examination,
Dr. Laflamme concluded as follows:
[TRANSLATION]
After studying the hospital records of Hôtel-Dieu de
Québec, to which Mr. Bélanger gave us access, and
following today's examination, I noted that Mr. Bélanger's
health condition seems to be deteriorating in the last few years.
In the wake of the clinical examination completed today and after
consulting his previous medical records, it may be affirmed that
Mr. Bélanger suffers from cervical and multi-stage lumbar
diskarthrosis, which, because of this, greatly restricts him in
his work. It would appear that he has increasing difficulty in
adjusting to his motor impairments. There is also a psychosomatic
component, which potentiates this adjustment difficulty.
In the circumstances, in order to adapt his work to his physical
and mental health, some restrictions should be imposed:
(1) Avoid certain physical work and having to lift
weights heavier than 5 kilos;
(2) Avoid repetitive movements flexing or
extending the cervical and lumbar spinal column;
(3) Avoid any major physical effort;
(4) Avoid climbing ladders or to high places.
In short, Mr. Bélanger should be assigned exclusively
to sedentary work.
[7] The appellant also submitted
numerous other documents in evidence relating to his medical
cerebral palsy reports (Exhibit A-2), the periods when he stopped
working (Exhibit A-3), his work accidents (Exhibit A-4) and his
physical disabilities and their evolution (Exhibit A-5).
[8] The appellant also gave the Court
some documents concerning his credits in previous years (Exhibit
A-6) and a notice of assessment from Revenu Québec
granting him the credit for a severe and prolonged mental or
physical impairment for the 1998 taxation year (Exhibit A-8).
[9] Lastly, the appellant submitted a
biography of himself written by Lionel Allard. It was entitled
[TRANSLATION] "The Wounded Gull" and was published by
Éditions Leméac Inc. in 1983. It traces the
significant moments of his life and development up to the age of
30.
[10] The Disability Tax Credit Certificate
["certificat pour personnes handicapées"]
(Form T2201 F (97)), which Dr. Nil Lefrançois completed on
July 13, 1998, was submitted in evidence during his testimony
(Exhibit I-1). On the certificate, Dr. Lefrançois
indicates that the appellant is restricted in "walking" and
"speech". However, he answered that the appellant can walk and
talk without requiring an inordinate amount of time to perform
those activities.
[11] In an additional questionnaire
completed on August 10, 1998, Dr. Lefrançois reports on
the effects of cerebral palsy, which translate into [TRANSLATION]
"difficulty in articulating words". In reply to the question
whether Claude Bélanger needs assistance, a device or
therapy in order to speak, the answer was "no". To the question
whether Mr. Bélanger requires an inordinate amount of time
to speak, the reply was also "no".
[12] Despite some comments concerning the
conditions required to receive the tax credit for mental or
physical impairment and how they are to be interpreted, Dr.
Lefrançois did not modify his assessment of the
appellant's impairment in any way.
[13] A review of the documents submitted in
evidence shows not only the suffering, the challenges and the
difficulties experienced by the appellant afflicted with cerebral
palsy since birth but also the efforts he has made and the
courage he has shown to reach the level of independence he enjoys
today, despite the serious effects of his disability.
[14] Although it can be recognized, as
counsel for the respondent has, that the appellant suffers from a
severe and prolonged impairment, it must be noted that the
effects of this impairment are not such that his ability to
perform a basic activity of daily living is markedly restricted.
There is also the finding of Dr. Nil Lefrançois, his
physician, both in his statements on the certificate and in the
above-mentioned questionnaire and in the answers he gave in his
testimony.
[15] The appellant is an individual who
presented his own case in an articulate manner. Although I was
also able to note some speech difficulties, the appellant's
ability to express himself clearly is not markedly restricted as
required by subparagraph 118.4(1)(c)(iii) of the
Act. His ability to walk is also not markedly restricted
as provided for in paragraph 118.4(1)(d) of the
Act.
[16] The conditions set out in paragraphs
118.3(1)(a.1) and (a.2), which are completed by
those in paragraphs 118.4(1)(b), (c) and
(d), not having been satisfied, the appeal is
dismissed.
Signed at Ottawa, Canada, this 5th day of April 2000.
J.T.C.C.
Translation certified true
on this 24th day of October 2003.
Sophie Debbané, Revisor
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