Huguette Labelle v. Her Majesty the Queen (Informal Procedure), [1995] 1 CTC 2576

Archambault J.T.C.C. (orally):-These are appeals governed by the informal procedure from income tax assessments for the 1980 to 1992 taxation years. The issue concerns the entitlement to the income tax credit for persons suffering from a mental or physical impairment.

1980 to 1990; 1992

The appellant did not file notices of objection for the years 1980 to 1990 or apply for an extension of time in order to file them. As to 1992, the notice of objection was filed before the assessment was issued. [1] As those notices of objection were not filed within the time limits prescribed by the Income Tax Act, , R.S.C. 1985 (5th Supp.), c. 1 (the "Act"), the Court has no other alternative than to allow the respondent’s application to dismiss these appeals for want of jurisdiction of the Court.

1991

Facts

The appellant has suffered from a bilateral 50-decibel sensorineural hearing loss since her birth on March 13, 1946. She completed her entire education without a hearing aid, seated at the back of the class because she was tall. She began using hearing aids around the age of 28 or 30. She did not wear them very much because she never got used to them. She uses them mainly at work, that is at the payroll department of Canada Post Corporation. She works in a noisy room where people talk loudly and listen to a number of radio sets. She often has difficulty communicating with her co-workers.

She lives alone at home. She can listen to television, but that disturbs the neighbours because of the excessively high volume. This problem has since been corrected because she was able to purchase an infrared television amplification system including a transmitter, receiver and headphones, with the financial assistance of the Office des personnes handicapées du Québec. She wakes up in the morning with two radio alarm clocks.

The appellant explained in her testimony that her comprehension was reduced because she suffered from tinnitus. She contended that she was unable to understand anything without lip reading. Her hearing problem has greatly affected her psychologically: for a long time she was ashamed of her impairment. She continues to suffer a great deal of anxiety. She has suffered a nervous breakdown and had to be treated for that condition. She has a great deal of difficulty accepting herself as she is.

On May 28, 1991, she was examined by an audiologist of the Institut Raymond Dewar. During this examination with headphones, that institute observed a moderately severe to severe sensorineural hearing loss in the left ear and a moderately severe to severe loss in the right ear. The result in discriminating monosyllables presented through headphones at the comfort level without lip reading and without hearing aids was poor on the left, average on the right and good binaurally.

During a re-examination conducted by the same institute on October 22, 1991, it was observed that, with the hearing aids, the speech comfort level was lowered to the conversational level and the score in discriminating monosyllables at the conversational level without lip reading was average (60 per cent). The performance became good with the addition of visual indicators. It must be added that the Court itself was able to observe this good result since the appellant testified and even argued her case herself. The appellant was able to understand the questions that were put to her without the necessity to speak more loudly. In its report of October 1991, the institute concluded that the electro- and psycho-acoustic performance of the appellant’s hearing aids was fully satisfactory.

Analysis

Section 118.3 of the Act provides as follows:

(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 by reason of paragraph (2)(b. 1) thereof) 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

AX $4,118

where

A is the appropriate percentage for the year.

Subsection 188.4(1) reads as follows:

(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 may 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.

The respondent’s position in this appeal was that the appellant did not meet the condition of paragraph 118.3(1 )(a. 1), that is that the effects of the impairment are such that the individual’s ability to perform a basic activity of daily living is markedly restricted. More specifically, the respondent argued that the appellant did not show that she was unable (or required an inordinate amount of time) to hear so as to understand, in a quiet setting, another person familiar with her.

It is recognized in income tax that the burden of proof is on the appellant to show that this perception of the facts on which the Minister relied in order to make his assessment was without foundation or incorrect. It must be observed that the definition of the Act is very restrictive. Indeed, not all cases of deafness constitute impairments for the purposes of the income tax credit. First, auditory perception must be assessed in a quiet setting, not in a noisy office. Work, housework and social and recreational activities are not considered as basic activities of daily living. Furthermore, the ability to perform a basic activity of daily living is markedly restricted only if a person is unable (or requires an inordinate amount of time), even with the aid of devices, to hear or understand, in a quiet setting, another person familiar with that person without devoting an excessive amount of time thereto.

The report of the Institut Raymond Dewar concluded that, with hearing aids, the discrimination result at the conversational level without lip reading was average, 60 per cent. This in my view contradicts the appellant’s testimony that she did not understand anything without lip reading. Performance became good with the addition of visual indicators. The appellant had to convince the Court on a balance of probabilities that she was unable (or required an inordinate amount of time) to hear so as to understand, in a quiet setting, another person familiar with her, even with the aid of her devices.

On the basis of the evidence adduced before me, I am not convinced that she was unable to hear so as to understand even when there was no lip reading. I expressly add this circumstance because I believe that where the Act describes a basic activity of daily living such as hearing so as to understand, this means that people must be able to hear with their ears, not understand by means of their eyes or other senses. It is clear that, with lip reading, the appellant could understand a conversation very well.

I must observe that it would have been helpful for the appellant to have had an expert witness heard in order to explain the scope of the Institute’s report which she provided to the Minister of Health and Welfare as required by section 118.4 of the Act. Those reports were a decisive factor in this Court’s decision. However, she did not deem it appropriate to do so.

For these reasons, the purported notices of appeal for 1980 to 1990 and that of 1992 are set aside by reason of nullity and that of 1991 is dismissed without costs.

Appeals dismissed.