Date: 20000608
Docket: 1999-4819-IT-I
BETWEEN:
SERGE NANTEL,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Lamarre Proulx, J.T.C.C.
[1]
This is an appeal for the 1998 taxation year.
[2]
The issue is whether the appellant was entitled, with respect to
his daughters, to the non-refundable disability tax credit
transferred from dependants other than a spouse.
[3]
The facts on which the Minister of National Revenue ("the
Minister") relied in disallowing the disability tax credit
are set out as follows in subparagraphs 3(d), (h), (k) and
(l):
[TRANSLATION]
(d)
disability tax credit certificates (T2201) in respect of the
appellant's two daughters, Chloé and
Audrey-Maude, that were signed by
Dr. Léopold Medou (hereinafter "the
doctor") on July 10, 1998, were submitted for the 1998 and
subsequent taxation years;
. . .
(h)
on January 27, 1999, a letter was sent to the appellant informing
him that:
(1)
our medical advisers had finished reviewing his application;
(2)
his daughters did not meet the eligibility criteria;
(3)
according to the medical information examined, his daughters had
a severe and prolonged impairment;
(4)
his daughters were not, however, severely restricted in the basic
activities of daily living;
. . .
(k)
during the taxation year at issue, the appellant's daughters
did not have a severe and prolonged mental or physical impairment
the effects of which were such that their ability to perform a
basic activity of daily living was markedly restricted;
(l)
accordingly, the Minister determined that the appellant was not
entitled, with respect to his daughters, to the non-refundable
disability tax credit transferred from dependants other than a
spouse for the 1998 taxation year.
[4]
The appellant was not present at the hearing. He was represented
by his spouse, the mother of their two daughters. She testified
for the appellant. No one testified for the respondent.
[5]
The T2201 certificates and the medical certificates referred to
in subparagraphs 3(d) and (e) of the Reply were filed as Exhibit
I-1 as regards Chloé Gareau Nantel and as
Exhibit I-2 as regards
Audrey-Maude Gareau Nantel.
[6] I
quote two paragraphs from Chloé's medical
certificate:
[TRANSLATION]
. . .
Child: Chloé Gareau Nantel
. . .
The above-mentioned child has allergy problems to an extent
that is very rare, especially allergies to foods, anesthetics and
other medication, as well as displaying symptoms as unexpected as
hypoglycemia. She is even allergic to foods as basic as sugar.
She cannot take the usual antibiotics and must always carry with
her an EpiPen syringe (in case of allergy) and a syringe of
glucagon (in case of hypoglycemia).
The range of the items to which she is allergic is such that
she is very restricted in her movements and her relations with
children of her own age. Thus, even at school, she must eat more
often to prevent hypoglycemia. . . . She must have special meals,
which are moreover rather difficult to put together since her
mother, in seeking a balanced diet, must go to various places in
the city to look for complementary nutrients that will not be
dangerous for the child.
[7]
The certificate concerning the other daughter is almost identical
since both of them have the same food allergy to bovine protein.
Each reacts just as strongly to sugar.
[8]
Ms. Gareau explained that she breast-fed both her daughters for
about five months after they were born. It was a good thing she
did so, she said, because her daughters' lives would have
been in grave danger. It was while breast-feeding them that she
realized that, depending on what she herself ate, her daughters
could find themselves covered in eczema or having breathing
problems.
[9]
Her daughters must avoid eating beef, veal, lamb, gelatin, whey
(which may be found in margarine), sugar, honey and maple syrup.
Ms. Gareau said that all products contain sugar nowadays, even
bread, since yeast is sugar-based. Her daughters can eat
fish and chicken. In the case of chicken, it depends on how the
chicken was fed. Ms. Gareau explained that she has succeeded in
finding a farmer or place that produces or sells chicken to which
her children do not react. The same search was required for
bread. For years, she had to make her own bread. After many
years, she finally found a baker who was able to follow and stick
to the proper recipe. With regard to fruit, it is necessary to be
very careful because it all depends on the insecticide used. Her
daughters react to the type of insecticide found on oranges,
grapefruit and lemons. They cannot eat these fruit, even when
peeled. There seems to be more leeway with vegetables, although
there is always a risk that certain insecticides might be
present.
[10] When they
have an allergy attack, her daughters' throats swell and they
have breathing problems: provision must be made for an adrenaline
shot and 20 minutes must be allowed to get to the hospital.
Moreover, since their food allergy is related to sugar, her
daughters, like diabetics, must eat at certain times. Otherwise,
there is a possibility of falling into a coma. This is an
additional concern. Attacks are rarer now, since her daughters
are careful.
[11] With
regard to her own lifestyle, Ms. Gareau said that it is like
going 150 years back in time. She must make bread, mustard,
mayonnaise and jam (the jam is sweetened with rice syrup, which
is expensive). Even organic products cannot be considered safe.
Wheat must not contain chemicals. She must make most of her
daughters' food herself. She must also look for foods to
which her daughters are not allergic. All of this takes a great
deal of time. In the summer, she has a vegetable garden so that
she can produce healthy foods for her daughters herself. Even her
daughters spend a great deal of time preparing their food.
[12] Ms.
Gareau is trained as an accountant. She cannot practise that
profession since she must devote most of her time to feeding and
caring for her daughters. No one else could look after feeding
them. If I were to throw in the towel or if I had the
misfortune to get sick even, it's quite simple—my
daughters would not live, period. She explained that she was
bedridden at one point and that two people had to replace her on
a full-time basis, namely her mother-in-law and her
sister-in-law, both of whom are fairly well aware of
the foods that her daughters can eat.
[13] Counsel
for the respondent referred to two decisions by this Court
concerning persons suffering from celiac disease, namely Judge
Bonner's decision in Hagen v. The Queen, [1997] T.C.J.
No. 827, and my decision in Fernand McMaster v. The
Queen, [1998] T.C.J. No. 301. Counsel cited the following
passage from McMaster:
[13] By
referring to the Federal Court of Appeal's decision in
Johnston v. The Queen, I can see that the objective test
that must be used to decide such cases is whether the problem the
individual has is such that he or she normally requires
assistance from another person to perform the basic activity or
requires an inordinate amount of time to perform the activity in
comparison with someone who does not have the same
disability.
[14] Based on
this reasoning, it seems to me that if the foods that a person
could eat were so rare that the person had to spend an inordinate
amount of time looking for them, it would have to be concluded
that looking for food was not separate from the activity of
feeding oneself. That is not the case here, however. The suitable
foods are not so rare that the appellant can hardly find anything
to eat. To a very large degree, he can find his food in
supermarkets like other people do, although he must be careful to
check the ingredients in prepared foods. He has to go farther
away to obtain some foods, such as pasta. Because of that, and
because of the care he must take in purchasing prepared products,
he argued that he is different from other people. But to what
extent? To an extent that strikes me as minimal. It seems to me
that many individuals are concerned about the ingredients in
prepared products and travel a few kilometres to obtain products
they like, whether because of their freshness, taste or price.
While it is true that going to restaurants is difficult, that is
the case for anyone with a food allergy. As regards the actual
activity of feeding oneself, the appellant did not claim that he
takes longer to eat than anyone else. I therefore conclude that
the appellant does not have a physical impairment the effects of
which are such that he requires an inordinate amount of time to
perform the activity of feeding himself.
[14] Referring
to that decision, counsel for the respondent explained that the
respondent's position is that what counts with regard to the
application of the tax credit is the ability of the person with
the impairment to feed himself or herself. There is some doubt as
to whether the time spent by other people on feeding themselves
must be taken into account. There is also some doubt as to
whether the time spent looking for and preparing food must be
considered.
[15] I
therefore consider it helpful to refer to Johnston v. The
Queen, [1998] F.C.J. No. 169, at paragraphs 17-18
and 31-33, where the Federal Court of Appeal looked at the
activity of feeding oneself and what it involves:
[17] 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.
[18] 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.
. . .
[31] Counsel
for the Respondent argued before us, and it was accepted by the
learned Judge, that the notion of "feeding" refers to a
person's capacity to take food from a plate and bring it to
his mouth. I strongly disagree. There is no doubt that a
two-year-old child can take food from a plate and put it in his
mouth, but there is also no doubt that nobody would assert that
that child is able to feed himself. I agree with this statement
of Bonner T.C.J. in M.R. Hodgin v. The Queen ([1995]
E.T.C. 515):
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 food
stuffs 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. Here the limitations on the
movement of the Appellant's hands required the assistance of
her husband in meal preparation to a degree that supports a
conclusion that the Appellant was incapable of feeding herself.
[Emphasis not in original.]
[32] The
notion of feeding, in my view, also involves the ability to
prepare a meal which conforms to a medically prescribed diet and
medication which maintains one's state of health or prevents
its deterioration.
[33] To limit
the notion of feeding to the ability to eat a meal is to overlook
the objective of the statute which, it bears repeating, is to
financially assist those who, because of their disability,
require assistance in fulfilling such a basic activity of daily
living. To include the preparation of a reasonable meal in the
notion of feeding is, on the contrary, fully consistent with such
objective and the spirit of the disability credit.
[16] According
to this decision, a person's ability is markedly restricted
if the person requires an inordinate amount of time to perform a
basic activity of living. The phrase "inordinate amount of
time" refers to a much longer time than is normal. The
notion of feeding oneself involves the ability to prepare a meal
that conforms to the diet required by the person's condition.
The activity of feeding oneself includes meal preparation.
[17] When it
comes to the activity of feeding oneself, it is not just the act
of putting food in one's mouth that must be considered.
Looking for and preparing food must be as well. If these latter
two activities have to be performed by someone other than the
person with the impairment, that person's time must be taken
into account in assessing whether it takes an inordinate amount
of time to perform a basic activity of living. As regards celiac
disease, I have not found that a person suffering therefrom
requires very much more time for feeding himself or herself than
is required by normal people. In the instant case, however, I
feel that the time spent looking for and preparing food greatly
exceeds the time usually spent by normal people on those
activities.
[18] It is
impossible not to consider the rare food allergies of the
appellant's daughters to be a severe and prolonged impairment
and not to find that much more time than usual is required to
overcome that impairment and remain autonomous. The description
given by Ms. Gareau shows that she currently requires an
inordinate amount of time—in comparison with what is
normal—to prepare the food required by her daughters, as do
her daughters themselves. If these problems diminish in the
future as a result of medical discoveries that are to be desired,
so much the better. However, given what these individuals
currently have to do when it comes to eating, there is no doubt
that they require more time than is normal to look for and
prepare their food.
[19] The
appeal is allowed without costs.
Signed at Ottawa, Canada, this 8th day of June 2000.
"Louise Lamarre Proulx"
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
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