AMENDED
REASONS FOR JUDGMENT
[These amended reasons for judgment are issued in substitution
for the reasons for judgment signed on July 10,
2017
to correct a grammatical error in footnote 19.]
Jorré J.
Introduction
[1]
The Appellant’s youngest child, “X”, has
classical phenylketonuria (“PKU”). PKU is a genetic disorder that eliminates or
severely restricts the body’s ability to metabolize phenylalanine (“Phe”), an
amino acid necessary for healthy growth and development. Phe is found in all
natural dietary proteins.
PKU has very severe consequences unless the necessary treatment plan is
followed vigorously and unrelentingly. Untreated it would cause permanent severe
damage to the brain of the child.
[2]
The following describes clearly and succinctly
both the nature of PKU and its potential consequences:
. . .
[Classical] Phenylketonuria is an inherited impairment of the body’s ability
to metabolize the amino acid phenylalanine. This is a genetic condition,
meaning it is life long and starts at birth. This is a serious condition, as
phenylalanine metabolism is a vital function. Without the ability to metabolize
phenylalanine, the levels of phenylalanine in the body quickly rise (within a
day) to toxic levels. Short term, high phenylalanine affects cognitive
ability (executive function) and long term (in children) causes permanent
severe brain damage.
People who do not have this impairment (i.e. do not have
phenylketonuria) can metabolize phenylalanine, therefore they do not have to
follow a phenylalanine-restricted diet. People with phenylketonuria must
follow the treatment plan and have blood phenylalanine levels monitored for their
entire lives. If they consume a regular diet they will be causing brain
damage to themselves. [X’s] formula prescription is: 110 grams Phenex-2 powder
mixed with 560 mL water per day (divided 140 mL QID) and 300 mg (20 exchanges)
phenylalanine per day from all dietary sources including food and metabolic
products supplied by the Ontario Public Drug Program’s Inherited Metabolic
Diseases Program. . . .
[Emphasis added.]
[3]
As we will see below the therapy consists of
strictly regulating the amount of Phe consumed. Every day the aim is to consume
a very specific amount of Phe. If too little is consumed there will not be
normal growth and development; if too much is consumed there will be brain
damage. Metaphorically, the Appellant and her child are obliged to walk a very
narrow ridge with great risks if the child falls to either side.
[4]
The narrowness of the “ridge” is well
illustrated by the fact that a single egg will contain Phe in excess of
the child’s daily allowance.
[5]
In 2015 the Appellant applied for the credit for
mental or physical impairment, commonly known as the disability tax credit
(“DTC”), in respect of X. The Minister of National Revenue (“Minister”) determined
that X did not fulfill the requirements and the Appellant now appeals from that
determination.
[6]
The only issue here is whether X is eligible for
the credit. Much is not in dispute; I note, for example, that there is no issue
of computation and no issue as to the fact that, if X is eligible, the credit
may be transferred to the Appellant.
[7]
As we shall see below, the dispute ultimately
turns on what I shall refer to as “the 14‑hour a week requirement”.
The Statutory Scheme
[8]
The relevant provisions are in sections 118.3
and 118.4 of the Income Tax Act (“Act”); they are reproduced in annex
A of these reasons. Because the only issue is eligibility, and given the
particular facts, only portions of those two sections are relevant and I will
only reproduce part of those sections below:
118.3(1) Credit
for mental or physical impairment — Where
(a) an individual has one or more
severe and prolonged impairments in physical or mental functions,
(a.1) the effects of the impairment
or impairments are such that the individual’s ability to perform more than one
basic activity of daily living is significantly restricted where the cumulative
effect of those restrictions is equivalent to having a marked restriction in
the ability to perform a basic activity of daily living or are such that the
individual’s ability to perform a basic activity of daily living is markedly
restricted or would be markedly restricted but for therapy that
(i) is essential to sustain a vital
function of the individual,
(ii) is required to be administered at
least three times each week for a total duration averaging not less than 14
hours a week, and
(iii) cannot reasonably be expected to be
of significant benefit to persons who are not so impaired,
(a.2) in the case of an impairment
in physical or mental functions the effects of which are such that the
individual’s ability to perform a single basic activity of daily living is
markedly restricted or would be so restricted but for therapy referred to in
paragraph (a.1), a medical practitioner has certified in prescribed form
that the impairment is a severe and prolonged impairment in physical or mental
functions the effects of which are such that the individual’s ability to
perform a basic activity of daily living is markedly restricted or would be
markedly restricted, but for therapy referred to in paragraph (a.1),
where the medical practitioner is a medical doctor or, in the case of
. . .
(a.3) in the case of one or more
impairments in physical or mental functions the effects of which are such that
the individual’s ability to perform more than one basic activity of daily
living is significantly restricted, a medical practitioner has certified in
prescribed form that the impairment or impairments are severe and prolonged
impairments in physical or mental functions the effects of which are such that
the individual’s ability to perform more than one basic activity of daily
living is significantly restricted and that the cumulative effect of those
restrictions is equivalent to having a marked restriction in the ability to
perform a single basic activity of daily living, where the medical practitioner
is, in the case of
(i) an impairment with respect to the
individual’s ability in feeding or dressing themself, or in walking, a medical
doctor or an occupational therapist, and
(ii) in the case of any other impairment, a
medical doctor,
(b) the individual has filed for a
taxation year with the Minister the certificate described in paragraph (a.2)
or (a.3), and
(c) . . .
there may be
deducted in computing the individual’s tax payable under this Part for the year
the amount determined by the formula
. . .
(1.1) Time spent on therapy — For the purpose of paragraph
118.3(1)(a.1), in determining whether therapy is required to be
administered at least three times each week for a total duration averaging not
less than an average of 14 hours a week, the time spent on administering
therapy
(a) includes only time spent on
activities that require the individual to take time away from normal everyday
activities in order to receive the therapy;
(b) in the case of therapy that
requires a regular dosage of medication that is required to be adjusted on a
daily basis, includes (subject to paragraph (d)) time spent on
activities that are directly related to the determination of the dosage of the
medication;
(c) in the case of a child who is
unable to perform the activities related to the administration of the therapy
as a result of the child’s age, includes the time, if any, spent by the child’s
primary caregivers performing or supervising those activities for the child;
and
(d) does not include time spent on
activities related to dietary or exercise restrictions or regimes (even if these
restrictions or regimes are a factor in determining the daily dosage of
medication), travel time, medical appointments, shopping for medication or
recuperation after therapy.
(2) Dependant
having impairment — . . .
(3) Partial
dependency — . . .
(4) Additional
information — . . .
118.4(1) Nature
of impairment — 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;
(b.1) an individual is considered to
have the equivalent of a marked restriction in a basic activity of daily living
only where all or substantially all of the time, even with therapy and the use
of appropriate devices and medication, the individual’s ability to perform more
than one basic activity of daily living (including for this purpose, the
ability to see) is significantly restricted, and the cumulative effect of those
restrictions is tantamount to the individual’s ability to perform a basic
activity of daily living being markedly restricted;
(c) a basic activity of daily living
in relation to an individual means
(i) mental functions necessary for everyday
life,
(ii) feeding oneself or 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;
(c.1) mental functions necessary for
everyday life include
(i) memory,
(ii) problem solving, goal-setting and
judgement (taken together), and
(iii) adaptive functioning;
(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;
(e) feeding oneself does not include
(i) any of the activities of identifying,
finding, shopping for or otherwise procuring food, or
(ii) the activity of preparing food to the
extent that the time associated with the activity would not have been necessary
in the absence of a dietary restriction or regime; and
(f) dressing oneself does not
include any of the activities of identifying, finding, shopping for or
otherwise procuring clothing.
(2) Reference
to medical practitioners, etc. — . . .
[9]
It will be useful to note at this point that the
Canadian Oxford Dictionary (second edition, 2004) defines “therapy” as:
1 The treatment of physical or mental
disorders, other than by surgery; 2 a particular type of such treatment.
[10]
The same dictionary gives three definitions of
the noun “diet”:
1 The kinds of food that a person or animal
habitually eats; 2 a special course of food to which a person is restricted,
esp. for medical reasons or to control weight; 3 a regular occupation or series
of activities to which one is restricted or which form one’s main concern,
usually for a purpose (a diet of light reading and fresh air).
In this context the second meaning would be
the relevant one.
The Issues
[11]
Under these provisions, the Act has a
number of requirements that must be met before an individual is eligible for
the disability tax credit; for our purposes here, these include:
1. The
individual must have one or more severe and prolonged impairments.
2. The
effects of impairment(s) must be such that the individual is either
(a) markedly
restricted in his or her ability to perform a basic activity of daily living,
or
(b) significantly
restricted in the ability to perform more than one basic activity of daily
living with the consequence that the cumulative effect of the restrictions is
equivalent to being markedly restricted in the ability to perform a basic
activity of daily living, or
(c) would
be restricted as described in (a) but for therapy meeting certain requirements.
3. A
certificate by a medical practitioner must be filed.
[12]
The Respondent does not dispute that many of the
requirements are met; its position is the following:
1. It
accepts that X suffers from one or more severe and prolonged impairments with
the effect that
2. X
would be markedly restricted in her ability to perform a basic activity of daily
living but for the therapy received.
3. However,
the Respondent contends that the therapy received does not meet the
requirements of the Act.
[13]
The sole issue
in this case is whether or not the therapy meets the requirements of the Act.
[14]
Paragraph 118.3(1)(a.1) of the Act
requires that the individual:
. . . would be markedly
restricted but for therapy that
(i) is essential to sustain a vital
function of the individual,
(ii) is required to be administered at
least three times each week for a total duration averaging not less than 14
hours a week, and
(iii) cannot reasonably be expected to be
of significant benefit to persons who are not so impaired,
[15]
More specifically the Respondent’s argument was
limited to (ii) above and to the 14‑hour a week requirement; it is very clear that there
is therapy more than three times and that aspect of (ii) is not disputed. The
Respondent did not take the position that the requirements of (i) and (iii)
were not met.
[16]
Accordingly the issue is whether or not therapy
was administered for an average of not less than 14 hours a week.
[17]
In computing the 14‑hour a week
requirement, the rules in subsection 118.3(1.1) are important and provide that:
. . .
the time spent on administering therapy
(a) includes only time spent on
activities that require the individual to take time away from normal everyday
activities in order to receive the therapy;
(b) in the case of therapy that
requires a regular dosage of medication that is required to be adjusted on a
daily basis, includes (subject to paragraph (d)) time spent on
activities that are directly related to the determination of the dosage of the
medication;
(c) in the
case of a child who is unable to perform the activities related to the
administration of the therapy as a result of the child’s age, includes the
time, if any, spent by the child’s primary caregivers performing or supervising
those activities for the child; and
(d) does not include time spent on
activities related to dietary or exercise restrictions or regimes (even if these
restrictions or regimes are a factor in determining the daily dosage of
medication), travel time, medical appointments, shopping for medication or
recuperation after therapy.
[18]
The French language version of this text reads
as follows:
[…] le temps consacré à donner les soins est calculé selon les
critères suivants :
a) n’est
compté que le temps consacré aux activités qui obligent le particulier à
interrompre ses activités courantes habituelles pour recevoir les soins;
b) s’il
s’agit de soins dans le cadre desquels il est nécessaire de déterminer un
dosage régulier de médicaments qui doit être ajusté quotidiennement, est
compté, sous réserve de l’alinéa d), le temps consacré aux activités
entourant directement la détermination de ce dosage;
c) dans le
cas d’un enfant qui n’est pas en mesure d’accomplir les activités liées aux
soins en raison de son âge, est compté le temps que consacrent les principaux
fournisseurs de soins de l’enfant à accomplir ces activités pour l’enfant ou à
les surveiller;
d) n’est pas
compté le temps consacré aux activités liées au respect d’un régime ou de
restrictions alimentaires ou d’un programme d’exercices (même si ce régime, ces
restrictions ou ce programme sont pris en compte dans la détermination du
dosage quotidien de médicaments), aux déplacements, aux rendez-vous médicaux, à
l’achat de médicaments ou à la récupération après les soins.
The Facts
[19]
X was born in 2013 and was diagnosed with PKU
shortly thereafter, through a newborn screening process. The Appellant is X’s
primary caregiver.
[20]
Dr. Murray Potter, X’s metabolic
specialist, completed and certified a prescribed form (the T2201 — Disability
Tax Credit Certificate) for the Appellant to apply for the DTC in respect of X.
[21]
Dr. Potter provided two letters supporting the Appellant’s
DTC claim. The first letter, dated April 12, 2016, was in support of the Appellant’s
objection to the Minister’s determination denying the DTC application. The
letter explained the cause, effects and treatment of PKU as follows. It is worth reproducing large
portions of the letter:
. . .
Phenylketonuria,
or PKU, is an inherited enzyme deficiency. The deficient enzyme, phenylalanine
hydroxylase, is necessary to metabolize the amino acid phenylalanine [“Phe”].
Phenylalanine is a component of all of our dietary protein, and without the
enzyme the level of phenylalanine quickly builds up in the body to toxic
levels. Over a relatively short period of time (weeks to month) high levels
of phenylalanine causes irreversible brain damage. Conceptually, the treatment
for PKU is simple — reduce the intake of phenylalanine to a very low level,
just enough to provide the body a supply for making new proteins for growth and
development, but not enough to cause a build-up to a toxic level. In practice,
this is a very difficult goal.
The first
challenge is that the degree of protein restriction that would be necessary to
give safe levels of phenylalanine in the body is not compatible with life.
Therefore, artificial nutrition has been created (called “medical food” or “PKU
formula”) where the level of phenylalanine is zero, but other amino acids and
nutrients are supplemented to safe levels. This medical food is only available
through special access at a few centres in Canada, and must be given under a
medical prescription with close supervision by the metabolic physician and
registered dietitian. Even with the medical food supplying a large portion of
the nutrition, additional special “low protein” foods must be consumed to
provide a complete diet. An example of a low protein food would be a pasta or
bread product where the high protein component (flour) has been replaced with a
low protein substitute (starch), often at a considerable sacrifice in
palatability. Most of these foods are also special order through the same centres
supplying the medical food, though they typically do not require a prescription
to purchase.
The second
challenge is that, as mentioned above, a certain amount of phenylalanine is
necessary for proper growth and development, but too much is toxic. The phenylalanine
intake is carefully regulated by providing some regular food protein (which
contains phenylalanine). Essentially [X] is prescribed a certain specific
amount of phenylalanine to consume every day, to be given as food protein. This
amount must be calculated for every food item that is consumed for every meal,
every day. The prescribed amount of phenylalanine changes based on stages of
growth and development and must be carefully monitored by frequent blood level
checks for phenylalanine (weekly as a young child gradually increasing to every
1-3 months as an adult, when growth stops). These blood checks are only
available at specialized laboratories (i.e. tertiary care hospital laboratories
with biochemical genetics laboratories).
[X]’s parents
must care for [X] by:
• Monitoring
blood phenylalanine levels (doing blood tests), with the goal to maintain blood
levels in the range of 120 to 360 umol/l
• Daily
preparing and administering formula and low protein foods (PKU medication)
• Maintaining a logbook
of blood phenylalanine levels and daily phenylalanine intake
The specific
time requirements necessary to manage the phenylalanine prescription would vary
from family to family and I would have no way to know exactly how long any one
patient spends on this. However, this is a daily task that could easily require
2 hours per day (14 hours per week). Additionally, there is a significant
amount of time dedicated to obtaining and tracking the blood phenylalanine
levels. Therefore, it is reasonable to say that managing PKU meets the “at
least 3 times per week, for an average of at least 14 hours per week”
requirement. Managing PKU is a very time consuming regime and would consist of
a child and parent/caregiver taking time away from everyday activities. This is
a life‑long, inherited condition, requiring life-long treatment.
Implementing a phenylalanine restricted diet early in life can
significantly reduce mental deficiencies associated with PKU. Left untreated,
PKU causes severe brain damage leading to severe cognitive impairment and the
inability to perform any of the mental functions required for everyday life.
[X] was treated within the early weeks of life with good metabolic control,
protecting her brain and allowing for completely normal development. She will
need to remain on therapy to avoid any adverse neuropsychiatric effects of PKU.
[Emphasis added.]
[22]
As indicated above, treatment for PKU is not
simply eliminating or reducing Phe from one’s diet. It is maintaining the
amount of Phe intake at a very specific level, no more and no less, so that the
patient has just enough Phe for proper growth and development but not more so
as to prevent brain damage. The Appellant stated that her daily Phe consumption
was approximately 4,300 milligrams. In contrast, X’s prescribed daily Phe
consumption target was 300 milligrams. This target could be exceeded very
quickly if X’s diet was not closely controlled and monitored by the Appellant.
The Appellant testified that one large egg and a cup of milk contain 341 milligrams
and 358 milligrams of Phe, respectively.
[23]
Dr. Potter’s second letter, dated February 17,
2017, was in support of the Appellant’s appeal to this Court. Most of it has
already been reproduced in paragraph 2 above.
[24]
The therapy consists of managing the daily
amount of Phe consumed very precisely while also ensuring a sufficient intake
of all the other amino acids, apart from Phe, that constitute the necessary
protein intake for the child. This is accomplished by a carefully managed
combination of three components:
1. The
prescribed formula (the medical formula) that Dr. Potter described as
artificial nutrition — The formula provides a complete set of proteins except
for Phe
and must be taken four times a day in the morning, at lunch time, in the
afternoon and at bedtime. The formula consists of a prescribed amount of amino
acid powder dissolved in a particular amount of water.
2. Special
processed low protein foods (the medical foods) — For example, there are pasta
products where the high protein component (such as flour) has been replaced
with a low protein substitute (such as starch); unfortunately, the result is
less palatable than normal pasta. These medical foods are quite expensive.
3. Limited
quantities of ordinary foods that have little or no Phe as well as completely
avoiding many foods that have high Phe.
[25]
Many foods must be completely avoided; in a
letter to the school board prior to the child starting junior kindergarten, her
parents write:
[X] is not
allowed to eat meat, seafood, poultry, eggs, dairy, soy, nuts, beans, seeds,
lentils, or many products containing regular flour. She is also not allowed to
have aspartame. All of the above food items contain too much PHE.
[26]
The prescribed amount of Phe evolves over time.
[27]
As indicated in Dr. Potter’s letter, the
medical foods are specially prepared so as to reduce the protein content. These
medical foods are not generally available. They cannot be bought in grocery
stores and have to be ordered and shipped to the customer. Apparently, there is
a specialty food store within the Hospital for Sick Children in Toronto.
[28]
The medical foods come in packages with warnings
such as “For use under medical supervision for conditions such as inborn errors
of protein metabolism” or “Important notice — Should be used under medical
supervision. For the dietary management of Inherited Metabolic Disorders
requiring low protein diets. Not suitable for the sole nourishment of the
person.” Some packages say “Low Protein Medical Food.”
[29]
The Appellant applied to the Ontario Ministry of
Health and Long‑Term Care Inherited Metabolic Diseases Program to obtain
the benefits of that program for X. To apply, Dr. Potter also had to
provide a diagnosis and sign the form.
The program apparently covers the cost of certain medical foods.
[30]
Generally X’s therapy takes away a limited
amount of time from what the child would otherwise be doing because, given her
age, she is unable to manage her own therapy. However, the Appellant, as X’s
primary caregiver, is obliged to implement the therapy; this implementation is
time consuming and includes the following:
– sourcing and storing medical formula and medical food;
– planning and preparing X’s meals and snacks including:
•
weighing food so as to measure, calculate, and
log the amount of Phe from all sources prepared for X’s consumption so as to ensure
the correct amount of daily Phe consumption as well as
•
measuring and logging the formula to ensure
adequate consumption of all the other amino acids (apart from Phe) constituting
protein;
– supervising X’s consumption of food so the amount of Phe actually
consumed is monitored;
– if necessary, after a meal or snack, recalculating Phe consumption
for the rest of the day and adjusting subsequent meals or snacks to take
account of actual consumption (for example, if a food is not eaten or only
partly eaten with the result that less food than planned was consumed, then it
will be necessary to ensure more Phe is consumed by adding or substituting
something; another example, where adjustments have to be made, is this: if, for
instance, in spite of efforts to avoid this, X winds up eating some other
child’s food it may be necessary to try to make an offsetting reduction in Phe
consumption for the day);
– educating others, such as caregivers, teachers, classmates and other
parents, regarding PKU so as to prevent consumption of more Phe than planned
(for example, ice cream at a friend’s home);
– when picking up X from the care of others, finding out what medical formula
and medical food and ordinary food was consumed — normally the Appellant will
pick up any leftover meal or snack items so that they can be measured (weighed)
and the amount of Phe consumed up to that point in the day can be recalculated
for the purpose of making adjustments for the rest of the day;
– attending various medical appointments with different doctors and
the dietitian;
– monitoring X’s Phe blood level through weekly blood tests to ensure that
the prescribed Phe‑restricted diet is effective.
[31]
In annex B, I have reproduced the full list of
tasks contained in the time sheet the Appellant filed setting out her estimate
of the time she spent to implement her child’s therapy. She estimated that in
an average week she spent about 29 hours.
[32]
The Appellant filed a letter sent to the school
board prior to X starting junior kindergarten.
Because it gives a good sense of the challenges involved in X attending
kindergarten, I am reproducing the letter:
We are excited about registering [X] for
Junior Kindergarten for September 2017 and she is as well! Her big brother . . .,
currently in JK2, has been preparing her well for “Big Kid School”. Like her
brother, [X] also has PKU (Phenylketonuria). As indicated below, my hope is
that [X] will be placed in JK2 with her brother, so that she can also have
access to the refrigerator in the room for her medical formula.
What is PKU?
PKU is a rare, inherited metabolic disease
that results in developmental disability and other neurological problems when
treatment is not started within the first few weeks of life. We started
treatment as soon as [X] was diagnosed (4 days after she was born) and, as
a result, she is developing into a wonderfully healthy little girl. Individuals
with PKU are unable to break down one amino acid of protein called
phenylalanine (often called PHE, pronounced “fee”). Since this amino acid
cannot be completely processed, it builds up in their blood and excess amounts
cross the blood-brain barrier. When excess amounts build up, brain damage and
other neurological problems result.
How is [X]’s PKU managed?
Thankfully,
PKU can be managed with a very strict diet. [X]’s PKU management
involves:
1) Controlling
her intake of protein
a. [X] is not allowed to eat meat, seafood, poultry, eggs,
dairy, soy, nuts, beans, seeds, lentils, or many products containing regular flour.
She is also not allowed to have aspartame. All of the above food items
contain too much PHE. Even fruits and vegetables are carefully weighed and
accounted for so that the daily PHE intake is within her target each day — not
over, or there is risk of brain damage, and not under, or there is risk of
retarded growth. Everything [X] eats must be accounted for. Similarly,
everything she doesn’t eat must be subtracted from her intake for the day.
2) Drinking
a PHE-free formula
a. [X]’s medical formula provides her body with most of the
necessary protein, vitamins, and minerals that she needs, without the PHE, to
help her grow like her peers.
3) Eating
special low-PHE foods
a. These foods are considered “medical foods” and are specially
ordered (i.e., they are not available at the grocery store).
4) Weekly
to bi-weekly blood work
a. [X] is monitored by a team at McMaster Children’s Hospital. She
must give blood bi-weekly to ensure that her blood PHE levels are within a
specific range. When her levels are too high, we attend weekly so that her
clinical team can adjust her diet and formula requirements accordingly.
To give you an idea of how significantly [X]’s
diet is restricted, [X] is currently allowed to eat 300 mg of PHE per day
(~6.5 g of protein) from the foods we have to weigh and account for. One
large egg has 341 mg of PHE. One cup (250 ml) of milk has 358 mg
of PHE. Thus, as you can see, [X] cannot have any of the above examples of
foods as each of them individually would put her over, or just about over, her
daily intake for that day, meaning that she wouldn’t be able to consume
anything else without increasing her blood-PHE levels and ultimately causing
damage to her brain.
Currently, in preschool, [X] does not eat
what is provided by the centre like her peers. Her food is prepared and weighed
at home and her teachers give it to her during snack and lunch times. The
centre shared their menu with me so that I can provide similar options as often
as possible (e.g., low protein spaghetti, low protein banana bread, etc.). [X]’s
teaching staff knows that any food that is uneaten must be returned home for
weighing and there is a notice (similar to a severe allergy notice) in the room
that she is not to eat her peers’ food and is not to consume foods with protein.
Any time a special treat is being offered by the school, they either contact me
to ask if she is allowed to eat it, as there are some foods that we all eat
that she can also have (e,g., apples, applesauce, certain popsicles/freezies
and candies), or they give me notice so that I can provide a low protein
alternative (e.g., low protein cupcakes) so that she does not feel left out.
What does this mean for the school?
Given the
many allergies and food restrictions for children these days, my hope is that
this will not be too much of a change for the school. Just like the rest of
your students, I will of course provide her lunch/snacks every day. What will
be different for her is that she needs to bring whatever she does not eat home,
rather than throwing it in the garbage or green bin. Also, and probably my main
concern, is that she cannot share food with her friends. If she gives
her food to her friends she will be hungry, and if she eats her friends’ food,
it may have protein in it. Furthermore, given that she consumes her medical
formula across the day, in addition to a bottle for water like her peers, she
will also need to bring a thermos/water bottle of her formula to school. My
hope is that she will be assigned to JK2 with her brother, so that she too can
put her formula in the fridge. Finally, to accommodate her bi-weekly blood work
appointments at McMaster Children’s Hospital, [X] will unfortunately be a
little late (~9:30 to 10:00) every other Tuesday morning. I will notify the
school if weekly appointments will leave [X] being late more often.
What happens if she eats too much protein?
It is important to note that [X] is NOT
allergic to protein. If she eats something that she shouldn’t, she will not
have an allergic reaction and should not require medical attention. Instead,
what you might see is a change in her behaviour. Excess protein in the short
term typically presents with irritability, high activity level, fidgeting, poor
attention, etc. Excess protein over a longer period of time (even as short as a
week) is what leads to more significant brain damage (e.g., seizures,
intellectual decline). Accidents can happen. What will be incredibly important
will be for staff to notify myself or my husband if [X] eats something that she
shouldn’t. If this happens, we will alter [X]’s diet accordingly (i.e., provide
her with an even lower protein dinner that day, lower her protein intake over
the following days, etc.). I can only do this if I know about it though.
If you have any
further questions, please do not hesitate to contact me.
Analysis
[33]
In Johnston v. Canada, the Federal Court of Appeal
adopted the following comments made by former Chief Justice Bowman of this
Court with respect to the disability tax credit:
. . .
The
legislative intent appears to be to provide a modest relief to persons who fall
within a relatively restricted category of markedly physically or mentally
impaired persons. The intent is neither to give the credit to everyone who
suffers from a disability nor to erect a hurdle that is impossible for
virtually every disabled person to surmount. It obviously recognizes that
disabled persons need such tax relief and it is intended to be of benefit to
such persons.
. . .
If the
object of Parliament, which is to give to disabled persons a measure of relief
that will to some degree alleviate the increased difficulties under which their
impairment forces them to live, is to be achieved the provisions must be given
a humane and compassionate construction.
[34]
As we saw above, the word “therapy” simply means
the treatment. Given that the treatment is administering a precise amount of
Phe every day, the activities described in paragraph 30 above, and also set out
in annex B, all constitute administration of the treatment or therapy. One must
carry out these activities in order to deliver the Phe, measure the outcome
(through the weekly blood tests) and, over time, make adjustments.
[35]
However, in determining whether the therapy is
administered at least three times a week for no less than an average of 14
hours a week, I must apply the rules set out in subsection 118.3(1.1); these
rules modify the ordinary meaning of administering the therapy. For
convenience, I will repeat them here:
. . . the time spent on
administering therapy
(a)
includes only time spent on activities that require the individual to take time
away from normal everyday activities in order to receive the therapy;
(b) in the
case of therapy that requires a regular dosage of medication that is required
to be adjusted on a daily basis, includes (subject to paragraph (d))
time spent on activities that are directly related to the determination of the
dosage of the medication;
(c) in the
case of a child who is unable to perform the activities related to the
administration of the therapy as a result of the child’s age, includes the
time, if any, spent by the child’s primary caregivers performing or supervising
those activities for the child; and
(d) does not include time spent on
activities related to dietary or exercise restrictions or regimes (even if
these restrictions or regimes are a factor in determining the daily dosage of
medication), travel time, medical appointments, shopping for medication or
recuperation after therapy.
[36]
These rules exclude the time spent on certain
activities while including certain other time. I would note that:
1. Paragraph
118.3(1.1)(a) excludes any time spent that does not prevent the patient
from carrying out normal everyday activities. As a result the child spends
little time that would be counted. For example, while X is eating she is
receiving a limited amount of Phe but since eating is a normal everyday
activity no time is taken away from everyday activities. On the other hand
having a blood test is not an everyday activity and the time X spends getting a
blood test every week does count.
2. Paragraph
(c) explicitly provides that time spent by the Appellant’s primary
caregivers administering or supervising the administration of the treatment
does count.
3. Paragraph
118.3(1.1)(b) and the words in brackets in paragraph (d) do not
appear to have application here because, as I understand the therapy, there is
a fixed daily Phe dosage. If something goes wrong during the day, there will
have to be adjustments to try to get back to the dosage but the prescribed dose
of Phe itself does not change; it may change as the child grows and as a result
of the analysis of the blood tests but it is not a daily adjustment of dosage.
4. Paragraph (d) excludes from the 14‑hour
average any time spent on:
–
dietary restrictions or regimes,
–
travel time,
–
medical appointments and
–
shopping for medication.
[37]
In my view, medical appointments in paragraph
118.3(1.1)(d) include meetings with doctors and other health
professionals but do not include a medical appointment where there is more than
a meeting or discussions with the professional. For example, it would not
include an appointment where there is actual treatment or testing that is part
of the treatment.
[38]
Here, the Appellant has included in her time
sheet a certain amount of time that relates to medical appointments, travel and
buying medication. Those times cannot be included in the 14‑hour average
but represent a small part of the total time she estimates that she spends.
[39]
The question then becomes: In these particular
circumstances what exactly does paragraph 118.3(1.1)(d) exclude from the
14‑hour a week average when it refers to dietary restrictions or regimes?
[40]
In order to apply subsection 118.3(1.1) one must
consider how to treat the three components of the therapy and the different activities
related to the three components in this situation, a situation that would
probably not have been contemplated by the government or Parliament at the time
subsection (1.1) was enacted.
[41]
The weekly blood test and the administration of
the prescription medical formula are straightforward. The blood tests are
essential to the therapy to ensure that the proper Phe level is being
maintained. The medical formula is given in very precise doses four times a day
and administering it is no different from administering any other prescription
medication.
[42]
Thus the time spent relating to the blood tests
and to the administration of the formula can be counted as part of
administering the therapy. This includes items 1, 2, 3, 4 and 23 listed in
annex B. This totals an average of 531 minutes a week or somewhat less
than nine hours a week.
[43]
How does one treat counting Phe generally?
[44]
The therapy here has unusual characteristics in
terms of the rules set out in subsection 118.3(1.1). Phe is a protein found in
normal food but it is not found in isolation; in addition, while foods contain
mixtures of protein including Phe, one does not find in ordinary foods proteins
without Phe. While Phe is an element of nutrition, the activities necessary to
assure precise delivery every day of 300 milligrams of Phe to the child,
and no more than 300 milligrams, are much more akin to the administration of a
medication than to the management of a diet.
[45]
It is also unusual insofar as a major component
of the therapy is the medical food that is not generally available in the
market and must be taken under medical supervision. This medical food is
significantly more costly than most food and there is an Ontario government
program to assist with the cost of listed items, a program that requires an
appropriate doctor’s diagnosis to access.
[46]
Typically in a dietary regime one must avoid
certain foods, such as foods with gluten, for example, or one must keep track
of certain types of foods and control the quantities of different types of
food, for example, no more than X units of fruit and Y units of starch, with an
understood quantity of food for each unit.
[47]
Here, there are certain high protein foods that
are avoided outright such as meat, fish and dairy products; such avoidance is
like a dietary regime. Consuming medical food, while providing nutrition, also
has characteristics that are like consuming medication. The counting and
managing of Phe consumption is much more like administering a medication than
it is like managing a diet.
[48]
Bearing in mind these characteristics of the therapy
in relation to the rules in subsection 118.3(1.1), measuring and controlling
Phe intake is properly characterized as administration of the therapy and not
as control of X’s diet with the consequence that the correct way to apply these
rules is to consider that the time spent determining the amount of Phe to be consumed and actually
consumed, including the time spent logging Phe intake, should be considered as
part of the 14‑hour a week average.
[49]
When one examines the time estimate of the
Appellant for the different categories of activity, it is clear that the total
time spent on activities that may properly be counted for the purpose of the 14‑hour
test exceeds 14 hours. Specifically, items 5, 6, 10, 11, 14, 15, 16, 17, 19,
20 and 22 in annex B are clearly devoted to Phe measurement and the control of
Phe consumed.
[50]
This amounts to an average of 585 minutes a week
or almost nine hours. When added to the 531 minutes above, that is an average
of some 1,116 minutes or over 18 hours a week spent administering the therapy
within the meaning of subsection 118.3(1.1).
[51]
Given that the activities in annex B that I have
just enumerated exceed an average of 14 hours, it is unnecessary for me to
determine whether other activities listed in the annex do or do not qualify to
enter into the computation of the 14‑hour a week average.
Conclusion
[52]
Given that the 14‑hour a week requirement
is met, X is eligible for the disability tax credit. The appeal is allowed and
the matter will be referred back to the Minister for reconsideration and
redetermination in accordance with these reasons.
Signed at Ottawa, Ontario, this 20th day of July 2017.
“Gaston Jorré”
ANNEX A
118.3(1) Credit
for mental or physical impairment — Where
(a) an individual has one or more
severe and prolonged impairments in physical or mental functions,
(a.1) the effects of the impairment
or impairments are such that the individual’s ability to perform more than one
basic activity of daily living is significantly restricted where the cumulative
effect of those restrictions is equivalent to having a marked restriction in
the ability to perform a basic activity of daily living or are such that the
individual’s ability to perform a basic activity of daily living is markedly
restricted or would be markedly restricted but for therapy that
(i) is essential to sustain a vital
function of the individual,
(ii) is required to be administered at
least three times each week for a total duration averaging not less than 14
hours a week, and
(iii) cannot reasonably be expected to be
of significant benefit to persons who are not so impaired,
(a.2) in the case of an impairment
in physical or mental functions the effects of which are such that the
individual’s ability to perform a single basic activity of daily living is
markedly restricted or would be so restricted but for therapy referred to in
paragraph (a.1), a medical practitioner has certified in prescribed form
that the impairment is a severe and prolonged impairment in physical or mental
functions the effects of which are such that the individual’s ability to
perform a basic activity of daily living is markedly restricted or would be
markedly restricted, but for therapy referred to in paragraph (a.1),
where the medical practitioner is a medical doctor or, in the case of
(i) a sight impairment, an optometrist,
(ii) a speech impairment, a speech-language
pathologist,
(iii) a hearing impairment, an audiologist,
(iv) an impairment with respect to an
individual’s ability in feeding or dressing themself, an occupational
therapist,
(v) an impairment with respect to an
individual’s ability in walking, an occupational therapist, or after February
22, 2005, a physiotherapist, and
(vi) an impairment with respect to an
individual’s ability in mental functions necessary for everyday life, a
psychologist,
(a.3) in the case of one or more
impairments in physical or mental functions the effects of which are such that
the individual’s ability to perform more than one basic activity of daily living
is significantly restricted, a medical practitioner has certified in prescribed
form that the impairment or impairments are severe and prolonged impairments in
physical or mental functions the effects of which are such that the
individual’s ability to perform more than one basic activity of daily living is
significantly restricted and that the cumulative effect of those restrictions
is equivalent to having a marked restriction in the ability to perform a single
basic activity of daily living, where the medical practitioner is, in the case
of
(i) an impairment with respect to the
individual’s ability in feeding or dressing themself, or in walking, a medical
doctor or an occupational therapist, and
(ii) in the case of any other impairment, a
medical doctor,
(b) the individual has filed for a
taxation year with the Minister the certificate described in paragraph (a.2)
or (a.3), 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,
there may be
deducted in computing the individual’s tax payable under this Part for the year
the amount determined by the formula
A × (B + C)
where
A is the
appropriate percentage for the year,
B is $6,000,
and
C is
(a) where the individual has not
attained the age of 18 years before the end of the year, the amount, if any, by
which
(i) $3,500
exceeds
(ii) the amount, if any, by which
(A) the total of all amounts each of which
is an amount paid in the year for the care or supervision of the individual and
included in computing a deduction under section 63, 64 or 118.2 for a taxation
year
exceeds
(B) $2,050, and
(b) in any other case, zero.
(1.1) Time
spent on therapy — For the purpose of paragraph 118.3(1)(a.1), in
determining whether therapy is required to be administered at least three times
each week for a total duration averaging not less than an average of 14 hours a
week, the time spent on administering therapy
(a) includes only time spent on
activities that require the individual to take time away from normal everyday
activities in order to receive the therapy;
(b) in the case of therapy that
requires a regular dosage of medication that is required to be adjusted on a
daily basis, includes (subject to paragraph (d)) time spent on
activities that are directly related to the determination of the dosage of the
medication;
(c) in the case of a child who is
unable to perform the activities related to the administration of the therapy
as a result of the child’s age, includes the time, if any, spent by the child’s
primary caregivers performing or supervising those activities for the child;
and
(d) does not include time spent on
activities related to dietary or exercise restrictions or regimes (even if these
restrictions or regimes are a factor in determining the daily dosage of
medication), travel time, medical appointments, shopping for medication or
recuperation after therapy.
(2) Dependant
having impairment — Where
(a) an individual has, in respect of
a person (other than a person in respect of whom the person’s spouse or
common-law partner deducts for a taxation year an amount under section 118 or
118.8) who is resident in Canada at any time in the year and who is entitled to
deduct an amount under subsection (1) for the year,
(i) claimed for the year a deduction under
subsection 118(1) because of
(A) paragraph (b) of the
description of B in that subsection, or
(B) paragraph (c.1) or (d)
of that description where the person is a parent, grandparent, child,
grandchild, brother, sister, aunt, uncle, nephew or niece of the individual, or
of the individual’s spouse or common-law partner, or
(ii) could have claimed for the year a
deduction referred to in subparagraph (i) in respect of the person if
(A) the person had no income for the year
and had attained the age of 18 years before the end of the year, and
(B) in the case of a deduction referred to
in clause (i)(A), the individual were not married or not in a common-law
partnership, and
(b) no amount in respect of
remuneration for an attendant, or care in a nursing home, because of that
person’s mental or physical impairment, is included in calculating a deduction
under section 118.2 (otherwise than under paragraph 118.2(2)(b.1)) for
the year by the individual or by any other person,
there may be
deducted, for the purpose of computing the tax payable under this Part by the
individual for the year, the amount, if any, by which
(c) the amount deductible under
subsection (1) in computing that person’s tax payable under this Part for the
year
exceeds
(d) the amount of that person’s tax
payable under this Part for the year computed before any deductions under this
Division (other than under sections 118 to 118.07 and 118.7).
(3) Partial
dependency — Where more than one individual is entitled to deduct an amount
under subsection (2) for a taxation year in respect of the same person, the
total of all amounts so deductible for the year shall not exceed the maximum
amount that would be deductible under that subsection for the year by an
individual in respect of that person if that individual were the only
individual entitled to deduct an amount under that subsection in respect of that
person, and where the individuals cannot agree as to what portion of the amount
each can deduct, the Minister may fix the portions.
(4) Additional information — Where a claim under this section
or under section 118.8 is made in respect of an individual’s impairment
(a) if the Minister requests in
writing information with respect to the individual’s impairment, its effects on
the individual and, where applicable, the therapy referred to in paragraph (1)(a.1)
that is required to be administered, from any person referred to in subsection
(1) or (2) or section 118.8 in connection with such a claim, that person shall
provide the information so requested to the Minister in writing; and
(b) if the information referred to
in paragraph (a) is provided by a person referred to in paragraph (1)(a.2)
or (a.3), the information so provided is deemed to be included in a
certificate in prescribed form.
118.4(1) Nature
of impairment — 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;
(b.1) an individual is considered to
have the equivalent of a marked restriction in a basic activity of daily living
only where all or substantially all of the time, even with therapy and the use
of appropriate devices and medication, the individual’s ability to perform more
than one basic activity of daily living (including for this purpose, the
ability to see) is significantly restricted, and the cumulative effect of those
restrictions is tantamount to the individual’s ability to perform a basic
activity of daily living being markedly restricted;
(c) a basic activity of daily living
in relation to an individual means
(i) mental functions necessary for everyday
life,
(ii) feeding oneself or 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;
(c.1) mental functions necessary for
everyday life include
(i) memory,
(ii) problem solving, goal-setting and
judgement (taken together), and
(iii) adaptive functioning;
(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;
(e) feeding oneself does not include
(i) any of the activities of identifying,
finding, shopping for or otherwise procuring food, or
(ii) the activity of preparing food to the
extent that the time associated with the activity would not have been necessary
in the absence of a dietary restriction or regime; and
(f) dressing oneself does not
include any of the activities of identifying, finding, shopping for or
otherwise procuring clothing.
(2) Reference
to medical practitioners, etc. — For the purposes of sections 63, 64,
118.2, 118.3 and 118.6, a reference to an audiologist, dentist, medical doctor,
medical practitioner, nurse, occupational therapist, optometrist, pharmacist,
physiotherapist, psychologist, or speech-language pathologist is a reference to
a person authorized to practise as such,
(a) where the reference is used in
respect of a service rendered to a taxpayer, pursuant to the laws of the
jurisdiction in which the service is rendered;
(b) where the reference is used in
respect of a certificate issued by the person in respect of a taxpayer,
pursuant to the laws of the jurisdiction in which the taxpayer resides or of a
province; and
(c) where
the reference is used in respect of a prescription issued by the person for
property to be provided to or for the use of a taxpayer, pursuant to the laws
of the jurisdiction in which the taxpayer resides, of a province or of the
jurisdiction in which the property is provided.
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