[OFFICIAL ENGLISH TRANSLATION]
Date: 19971028
Docket: 97-101(IT)I
BETWEEN:
ROBERT BERTRAND,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Lamarre Proulx, J.T.C.C.
[1] This is an appeal under the
informal procedure for the 1994 taxation year.
[2] At issue is whether the appellant
is eligible to claim an income tax credit for a severe and
prolonged mental or physical impairment under sections
118.3 and 118.4 of the Income Tax Act ("the
Act").
[3] In making the reassessment, the
Minister of National Revenue ("the Minister") relied on
the following assumptions of fact, set out in paragraphs 3
and 4 of the Reply to the Notice of Appeal:
3.(a) the appellant filed the
Disability Tax Credit Certificate (form T2201A) dated
November 21, 1995, and duly signed by Dr. Leboeuf ("the
medical doctor");
3.(b) according to the medical
doctor's diagnosis, the appellant did not have any
restriction in performing the activities of daily living (such as
walking, speaking, seeing, feeding and dressing himself);
3.(c) as a result, the Minister
disallowed the non-refundable disability tax credit claimed by
the appellant.
4. At the
objection stage, during a telephone conversation on
August 29, 1996, the medical doctor confirmed that the
appellant was not restricted in performing the activities of
daily living.
[4] The appellant was allowed the
income tax credit for a severe and prolonged mental or physical
impairment for the 1991 to 1993 taxation years, although the
March 24, 1991, medical certificate noted moderate
restriction in performing the activities of daily life. That
certificate described the appellant's conditions as follows:
chronic lumbar pain; left sciatica; chronic occipital
headache.
[5] For the 1994 taxation year, the
Minister requested another certificate. This certificate was
provided by the medical doctor referred to in
subparagraph 3(a) of the Reply. The certificate, adduced as
Exhibit A-2, described the appellant's physical
impairment as follows: operation for disk herniation in 1990;
surgical difficulty; lumbar pain; periostitis. However, this
medical certificate states that the patient is able to perform
all the activities of daily living, including walking.
[6] The appellant and his spouse,
Diane Charlebois Bertrand, testified.
[7] Mr. Bertrand told the Court
that, following occupational accidents when he was working as a
building mechanics technician for the Department of National
Defence, he retired with a long-term disability pension. He had a
back operation in 1990. He stated that he has back pain radiating
in the left leg. He has difficulty walking; his left leg and foot
tend to go numb, which sometimes affects his balance. According
to the documents included as Exhibit A-1 and to the
appellant's testimony, he also has chronic anxiety and
hypertension. He has trouble sleeping. He has heart problems:
apparently he had an infarct. He is being treated for these
conditions and takes medication prescribed by the medical
doctors.
[8] Concerning the certificate
completed by Dr. Leboeuf (Exhibit A-2), the
appellant stated that Dr. Leboeuf was not the medical doctor
who was treating his back condition. When asked by the Court why
he did not provide a certificate from the medical doctor who was
treating his back condition, the appellant answered that he was
now the one who managed his back condition and that he no longer
wanted medical doctors to treat it. He is not taking
physiotherapy. He has a medical doctor for his heart
problems.
[9] The appellant's spouse is a
secretary at the human resources department in Vanier. She
confirmed her spouse's statements. Concerning bathing, she
stated that she is the one who has to run the bath water and
clean the bathtub afterward. Concerning showering, she stated
further that she cannot be far away because the appellant often
drops the soap bar, which has to be given back to him. However,
the appellant is able to drive the car. When they travel together
in the car, either the appellant or his spouse drives. On long
trips, they must stop every hour and walk a few steps. When they
shop for groceries together, the appellant must sit down after
walking through a few aisles. The appellant's spouse
confirmed that he has trouble sleeping. Often at night, she must
help him to get up and lie down on a couch outside their bedroom
and help him return to bed later during the night.
Analysis
[10] Subsection 118.3(1) of the Act
provides:
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.
[11] We see in paragraph
118.3(1)(a.2) of the Act that the medical
certificate is essential for the income tax credit to be allowed.
The medical certificate filed by the appellant does not certify
that he is unable to walk or takes an inordinate amount of time
to do so. On this ground alone, the appellant's appeal should
be dismissed.
[12] Parliament defined what is meant by
severe and prolonged impairment in subsection 118.4(1) of
the Act, as follows:
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.
[13] We see in subparagraph (d) that,
although an individual may be disabled for work purposes, this
does not necessarily mean that the individual will be considered
as such for income tax credit purposes, since working is not
considered a basic activity of daily living for the purposes of
the income tax credit.
[14] The evidence has shown that the
appellant has physical and mental problems but that they are not
such that they restrict him in performing, with therapy and the
appropriate medication, one or more basic activities of daily
living.
[15] The appeal is therefore dismissed.
"Louise Lamarre Proulx"
J.T.C.C.
Signed at Ottawa, Canada, this 28th day of October 1997.
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