Citation: 2013 TCC 258
Date: 20130819
Docket: 2012-4188(IT)I
BETWEEN:
JAMES NANCARROW,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Bédard J.
[1]
The appellant suffered
from serious medical conditions. In computing nil tax payable for the 2009
taxation year and tax payable for the 2010 taxation year, the appellant
included in the calculation of gross non‑refundable the amounts of
$7,196.00 and $7,239.00 respectively for Disability Tax Credits (“DTCs”). The
Minister of National Revenue (the “Minister”) disallowed the DTCs on the
following grounds:
i)
The appellant did not
have during the 2009 and 2010 taxation years one or more severe and prolonged
mental or physical impairments whose effects were such as to markedly restrict
his ability to perform a basic activity of daily living within the meaning of
section 118.4 of the Income Tax Act (the “Act”), and he is
therefore not entitled to DTCs pursuant to subsection 118.3(1) of the Act
for the 2009 and 2010 taxation years.
ii)
The appellant did not
have during the 2009 and 2010 taxation years one or more severe and prolonged
mental or physical impairments whose cumulative effects were such as to
markedly restrict his ability to perform more than one basic activity of daily
living within the meaning of section 118.4 of the Act, and he is therefore
not entitled to DTCs pursuant to subsection 118.3(1) of the Act for the
2009 and 2010 taxation years.
iii)
The appellant did not
have it certified in prescribed form that during the 2009 and 2010 taxation
years he had one or more mental or physical impairments that were severe and
prolonged and had the effects described in either paragraph i) or ii) above,
and he is therefore not entitled to DTCs pursuant to subsection 118.3(1)
of the Act for the 2009 and 2010 taxation years.
[2]
The evidence revealed
the following:
i)
The appellant filed a
completed Form T2201, Disability Tax Credit Certificate, as requested
(Exhibit A‑1).
ii)
On September 19,
2011, the Minister sent a letter to Dr. Ian Lindsay (the qualified
practitioner who had completed the T2201 Form) requesting clarification
regarding the appellant’s medical condition. In the questionnaire he completed
on October 26, 2011, Dr. Lindsay indicated that the appellant could walk
without taking an inordinate amount of time (possibly with the help of
appropriate therapy, medication, and devices). It was also determined by
Dr. Lindsay that, with regard to the appellant’s ability to perform the
mental functions necessary for everyday life, the restriction was not present
all or substantially all of the time.
iii)
On November 8,
2011, the Minister sent a letter to the appellant (Exhibit A‑1) stating
that he was not eligible for the DTC in view of the clarification provided by
Dr. Lindsay.
iv)
Neither additional
medical documentation from Dr. Lindsay clarifying the certificate already
submitted nor a new T2201 Form certified by a qualified practitioner was
provided to the Minister.
[3]
In his testimony, the
appellant essentially reiterated the reasons and facts stated in his notice of
objection (Exhibit R‑2). Those facts and reasons are the following:
·
I am an individual with multiple diseases that
markedly restrict (all of the time) one or more of the basic activities of
daily living.
·
I am filing this appeal within the prescribed
90 days after CRA mailed the notice of determination (NOD: Nov. 08,
2011 – Letter of appeal Jan. 26, 2012)
·
My disabilities have been recognized by the
Canada Pension Plan – CPP as severe and prolonged and I am receiving benefits
from them.
·
My requirement for medication has been
acknowledged by the Ontario Drug Benefit Program (Trillium Drug Program) and I
receive drug cost subsidy from them.
·
I have the disease of deep vein thrombosis which
occurred spontaneously August 2008.
·
In late 2009 the diagnosis was re‑evaluated
and determined to be chronic or of indefinite duration.
·
The acquired disposition to thrombosis is
medically documented as effecting 1 [sic] in 1000 persons resulting
in blood clots in the legs.
·
Even with appropriate therapy, medication and
devices it takes me an inordinate amount of time to walk 100 metres or the
distance of a city block.
·
The pain in my legs results in the need to sit
or lay down for relief after standing or walking for any time or for any
distance (5 minutes or 30 metres).
·
I believe these limitations would classify me as
significantly restricted under your definitions for walking, feeding or
dressing.
·
My physical‑medical limitations and
associated disorders such as memory loss, depression, fatigue etc. appear to be
related to my disease of chronic alcoholism. However, I have not consumed alcohol
since being diagnosed with D.V.T. in Aug. 2008.
·
Alcohol induced brain damage has resulted from
my prior abuse and continues to effect [sic] my speech, hearing,
perception and other mental functions necessary for everyday life.
·
The cumulative effect of these damages result [sic]
in significant impairment of undetermined duration.
[4]
The relevant sections
of the Act provide 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.
Conclusion
[5]
The appellant did not
have it certified in prescribed form that during the 2009 and 2010 taxation
years he suffered from one or more mental or physical impairments that were
severe and prolonged and had the effects described in section 118.4 of the
Act. Therefore, for the 2009 and 2010 taxation years, the appellant is not
entitled to DTCs pursuant to subsection 118.3(1) of the Act.
Paragraph 118.3(1)(a.2) of the Act is mandatory. In other words, it
must be certified by a qualified practitioner that the individual suffers from impairments
within the meaning of the Act.
[6]
For these reasons, the
appeals are dismissed.
Signed at Ottawa, Canada, this 19th day of August 2013.
“Paul Bédard”
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