Morrison v. The Queen, docket 97-2334-IT-I (Informal Procedure)

Date: 20000519

Docket: 97-2334-IT-I

BETWEEN:

KENNETH G. MORRISON,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

Bowman, A.C.J.

[1] This appeal was originally heard on September 9, 1998 at Sydney, Nova Scotia and judgment was rendered on September 23, 1998 allowing the appeal for 1995 and referring the matter back to the Minister of National Revenue for reconsideration and reassessment on the basis that the appellant was entitled to a disability tax credit under section 118.3.

[2] I found as a fact that he was severely and permanently disabled.

[3] I described his medical condition as follows:

[3] His history of medical problems goes back to 1974, when he was diagnosed with a stroke and a heart attack. In 1977, a heart specialist discovered heart damage which evidently resulted from the heart attack in 1974.

[4] In July 1984, he was hospitalized for a heart attack, and was diagnosed with ischemic heart disease. He was hospitalized in 1985 and again in May 1988, the last time as the result of an adverse reaction to some medication. He stopped work in 1990. In 1993, a Dr. D’Intino wrote a letter stating “This patient is totally and permanently disabled. He will never be returning to work in any capacity.”

[5] In December 1994, he had quadruple by-pass heart surgery. In November of 1995, he was diagnosed with diabetes. At present he takes 12 different medications for hypertension and heart disease. He carries nitro-glycerine with him.

[4] Paragraphs 8 to 22 of the previous judgment read as follows:

[8] There were also put in evidence a number of certificates signed by a medical doctor, together with a letter from him endeavouring to correct some of the mistakes made in the certificates. In one, dated May 3, 1995, in answer to the question:

9. Is the impairment severe enough to restrict the basic activity of daily living identified above, all or almost all the time, even with the use of appropriate aids, devices, medication, or therapy?

he ticked “yes”. In two others, he ticked “no”.

[9] In one, dated November 8, 1995, there is a virtually illegible scribble which reads somewhat as follows, to the extent that I am able to decipher this medical person’s scrawl:

Ischemic Heart Dis. - severe - unable to walk 50 feet, but since CABG Dec. 94, able to walk 50 m. alone but now gets tired.

[10] The same comment appears in a certificate dated December 21, 1995, but the doctor says this certificate is incorrect and should be ignored. Also, he ticked “no” to the question set out above.

[11] This raises a question that I should deal with briefly. Section 118.3 provides that to be entitled to a disability tax credit a taxpayer must, among other things, file a certificate in prescribed form by a medical doctor certifying 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.

[12] A superficial and mechanical reading of this provision, ignoring its obvious purpose, would appear to make the taxpayer’s entitlement to the disability tax credit completely dependent upon the whim of a medical practitioner and deprive the taxpayer of any remedy on appeal if his or her doctor, however capriciously, answers “no” to the question set out above.

[13] Conversely it would follow that if the medical practitioner answers the question in the affirmative, that is conclusive and the officials of the Department of National Revenue could not go beyond the certificate and examine the claim on its merits.

[14] The only analysis that is even more absurd is that a doctor's “no” answer is conclusive, but “yes” is not. That analysis defies all standards of fundamental fairness.

[15] It should be noted that the Department of National Revenue routinely ignores “yes” answers by doctors. Indeed in the vast majority of cases that I have heard where the Department has denied the tax credit, the doctor's answer in the certificate has been affirmative.

[16] It was obviously not Parliament’s intention to limit the powers of the Department to consider these claims under section 118.3, or the powers of this court to review the Minister’s determination. The purpose of the medical certificate, which contains many more questions beyond that set out above, is not to usurp the powers of the Department of National Revenue and of the court and confer them upon a medical practitioner, but to provide some additional medical information upon which the officials of the Department can make an informed evaluation of the claim. It also ensures that a claimant has at least seen a doctor and this of course helps to prevent a proliferation of frivolous claims. I do not, therefore, regard Dr. Myatt's “no” answer to question 9 in the form to be conclusive. I had the benefit of seeing the appellant and hearing his sworn testimony and hearing that evidence tested in a thorough and skilful cross-examination by Crown counsel. After all, a doctor’s opinion in these matters is based in large measure on what the patient tells him or her and I should think the court is in at least as good a position to evaluate the patient’s testimony. Moreover, in most cases the doctor is not called as a witness and his or her opinion are not subjected to any type of cross-examination.

[17] Additionally, whether the effects of a person's impairment are such that the person's ability to perform a basic activity of daily living is a matter that a lay person with reasonable powers of observation and understanding can determine. The words in sections 118.3 and 118.4 are not technical medical terms. One does not need a person with a degree in medicine to determine whether a claimant can walk or get dressed, or requires an inordinate amount of time to do so. These are matters within ordinary human experience.

[18] I have therefore concluded that the requirement in paragraph 118.3(1)(a.2) is directory only, and not mandatory. The reasoning in support of this view, in addition to that set out above, is very similar to that followed in Senger-Hammond v. R., [1997] 1 C.T.C. 2728 and Dep. Min. of Rev. (Quebec) v. Letarte, 97 DTC 5515, both of which were cited and followed by my colleague Mogan J. in Dominguez v. The Queen, 97-2310(IT)I (June 12, 1998).

[19] My observation of the appellant and my assessment of the evidence convince me that he clearly qualifies for the credit under section 118.3. He can walk short distances very slowly. His mobility is severely restricted and has been for many years, in particular 1995.

[20] If I am to follow the principles that I set out in Radage v. R., [1996] 3 C.T.C. 2510 (T.C.C.), as approved by the Federal Court of Appeal in Johnston v. The Queen, 98 DTC 6169 it is obvious that I should allow the appeal. Mr. Morrison clearly falls within those guidelines and is in my view precisely the type of severely disabled person at whom the legislation is aimed.

[21] Most of these cases depend upon the court’s observation of the appellant, in which the court must make a determination whether the witness is exaggerating his or her disability. Mr. Morrison exemplifies a phenomenon that I have frequently observed in these cases. Far from exaggerating his problem, he, like many other appellants, tended to downplay it, almost as if he were reluctant to reveal the full extent of the problem. This tendency of claimants, which perhaps stems from an unjustified feeling of shame at their disability, is something to which a court, in assessing the evidence, must be sensitive.

[22] The appeal is allowed.

[5] I did not find that there was no certificate of the type contemplated by section 118.3.

[6] The Crown appealed the case to the Federal Court of Appeal along with another case in which I had allowed the appeal, Joan MacIsaac v. H.M.Q. (97-2738(IT)I).

[7] The Federal Court of Appeal in an oral judgment delivered from the bench allowed the appeals, set aside the judgments of the Tax Court of Canada and referred the two cases back to this court for new trials at which new evidence may be led having regard to the reasons for judgment.

[8] The Federal Court of Appeal stated in its judgment as follows:

[5] While we sympathize with both Respondents and with the position taken by the Tax Court Judge we cannot agree with him on this question. Section 118.3(1)(a.2) of the Income Tax Act is not merely directory. It is mandatory. Simply put, there must be a certificate by the doctor that the individual suffers impairments in the language of these subsections. This Court held to the same effect in Partanen v. Canada, [1999] F.C.J. 751 and we feel bound by this decision.

[9] In Partanen, by which the Federal Court of Appeal considered itself bound,[1] the entire judgment read as follows:

[1] This is an application for judicial review of a decision of the Tax Court of Canada which dismissed the Applicant's appeal of a decision of the Minister of National Revenue ("The Minister"). The Minister disallowed the disability tax credit claimed by the Applicant for the 1995 Taxation year.

[2] The Tax Court Judge held that a certificate from a medical doctor was a prerequisite for obtaining the disability credit created by section 118.3 of the Income Tax Act ("The Act") and that the requirement for a medical certificate did not violate the Applicant's equality rights under Section 15 of the Charters of Rights and Freedoms since this requirement is imposed on every taxpayer who claims the tax credit for mental and physical impairment. She rejected the proposition that systemic discrimination exists since she was of the view that, in Canada, the health care system is universal. Moreover, she found, as a fact, that the Applicant had not shown that he was unable, or required an inordinate amount of time, to perform any basic activity of daily living as defined in subparagraph 118.4(1)(c) of the Act.

[3] The Applicant has not persuaded us that the Tax Court Judge erred in deciding as she did.

[4] I would dismiss this application for judicial review. There would be no costs since the Respondent is not asking for costs.

[10] In that case, no certificate was provided at all, and the main thrust of the argument was that the requirement for a certificate violated the appellant's Charter rights. The trial judge held, as well, that as a fact the appellant had not established that he was unable to perform a basic activity of daily living. The question whether the requirement for a certificate was directory or mandatory was not dealt with.

[11] The rehearing of the McIsaac appeal and of the Morrison appeal came on before me at Sydney, Nova Scotia on May 8, 2000.

[12] A consent to judgment allowing the appeal in the McIsaac matter was filed. I did not think that, in light of the Federal Court of Appeal's order that there be a new trial, I could simply grant judgment without some explanation justifying allowing the appeal (see The Clarkson Co. Ltd. v. The Queen, 79 DTC 5150 at page 5151 footnote 3). Counsel for the respondent explained to me that it had been discovered before the second trial that the doctor had not filled out the certificate but that, although he had signed it, it was his secretary who had completed it and she had mistakenly ticked "no" when she should have ticked "yes" in answer to the question

Is the impairment severe enough to restrict the basic activity identified above all or almost all the time even with the use of appropriate aids, devices, medication or therapy?

[13] The Federal Court of Appeal has held that such certificates, signed by a medical practitioner, are mandatory and the failure of a doctor to tick the yes box is an absolute bar to the right of a taxpayer, however severely disabled he or she may be, to obtain a disability tax credit.

[14] In light of the importance of where the medical practitioner happens to put the tick mark, regardless of how disabled the patient may be, we must look closely at just what Mr. Morrison's doctor, Dr. Myatt, did. He in fact signed three certificates (I am assuming that it was he who completed them and not his secretary, as in the case of Mrs. McIsaac). On the first certificate dated May 3, 1995, he ticked the yes box in answer to the question

9. Is the impairment severe enough to restrict the basic activity of daily living identified above, all or almost all the time, even with the use of appropriate aids, devices, medication, or therapy?

[15] On November 8, 1995 he put a tick mark between the two boxes although, it must be admitted, somewhat closer to the no box than the yes box. On December 21, 1995 he ticked the no box.

[16] Then, on March 4, 1997 he wrote to the tax department. He said

In terms of the forms, that form dated 3 May, 1995, and covering the period 1993-94 was correct in that he was unable to walk 50 meters but incorrect with a notation onset Christmas 1994, that should have been onset Christmas 1993 to Christmas 1994. The tax credit form covering 1993-95 and dated 8 November, 1995, is correct. The form covering the period 1993-95 and dated 21 December, 1995, is incorrect and please ignore this.

I hope this clears up any misconceptions.

[17] In the result, we have one certificate where the yes box is ticked, but the doctor says the date of onset is wrong (the only error identified by him), one where the tick mark is between the two boxes and one in which the no box is ticked but which is entirely repudiated by the doctor, who states that the certificate is incorrect and should be ignored.

[18] In light of the importance placed by the Federal Court of Appeal on the certificate and the technical requirement of the location of a tick mark, has the appellant met that technical requirement? I think he has. He has a certificate with a tick mark in the right place.

[19] He meets the requirement of being severely disabled. The Federal Court of Appeal accepted my finding of this obvious fact.

[20] It is patent from these two cases that medical certificates that the Federal Court of Appeal says are an absolute requirement here are in many cases unreliable. Having heard dozens of these cases I have found that such certificates are often unreliable, contradictory or confusing. Some medical practitioners are sloppy in what they write, and a few seem to regard a request by a patient as a nuisance. It is not inconceivable that they tick no in obviously deserving cases of severe disability to avoid being called as witnesses. To expect disabled people to subpoena their doctor and pay him or her $300 as is required by subsection 12(2) of the informal procedure rules is unrealistic. Scores of these disability tax credit cases are heard by our court every year. Section 118.3 is an important section and it means a great deal to many small taxpayers. The rights of such people are left to the whim of medical practitioners who may consider that appearing as a witness in court is an inappropriate use of their time. Most decisions of the taxing authorities are subject to appeal to this court. The result of the decision of the Federal Court of Appeal is that severely disabled people have no such recourse when a doctor or his secretary ticks the wrong box, whether negligently or deliberately, or refuses to sign a certificate.

[21] In Froese v. The Queen, 98 DTC 1658, I was faced with a claim for a disability tax credit and an ambiguous and contradictory medical certificate. The doctor ticked "no", but it seemed a reasonable inference from the rest of the certificate that the doctor thought the appellant was severely disabled. The doctor described the taxpayer's amputation as an above the knee amputation whereas it was in fact below the knee. I allowed the appeal. All of the evidence indicated that the doctor was confused. After all, if a graduate of a medical school cannot distinguish between an amputation above the knee and one that is below the knee it seems likely that he would find the distinction between a yes and a no box equally bewildering.

[22] I concluded my judgment with the observation

It may be that Roger Casement was hanged because of a comma. I am not, however, prepared to deny this obviously meritorious claim because of a misplaced tick mark.

[23] In this case I have a variety of boxes and tick mark locations and evidence of severe disability that permit the allowance of this appeal. Not every severely disabled taxpayer may find himself or herself in this fortunate position. It is clear that Parliament should reconsider the wording that led the Federal Court of Appeal to the decision that it reached.

[24] The appeal is allowed and the assessment for 1995 if referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the appellant is entitled to the disability tax credit under section 118.3 of the Income Tax Act.

[25] The appellant is entitled to his costs, if any.

Signed at Ottawa, Canada, this 19th day of May 2000.

"D.G.H. Bowman"

A.C.J.

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