Hill v. R., [1997] 1 CTC 2477 (Informal Procedure)

Teskey J.T.C.C.: — The Appellant elected, in her Notice of Appeal, wherein she appealed from her assessment of income tax for the years 1993 and 1994, the informal procedure.

Issue

The sole issue before me is whether her son (“Greg”), whose date of birth is September 20, 1977 was, in 1993 and 1994, was suffering from such a severe and prolonged mental impairment, that his ability to perform the basic activities of daily living was markedly restricted, and if so, the Appellant would be entitled to the non refundable disability tax credit.

Facts

Greg suffers from severe dyslexia, which is defined in the Concise Oxford dictionary as “an abnormal difficulty in reading and spelling caused by a condition in the brain".

Greg reads and writes at the grade one to two level and does mathematics at the grade three to four level. When he was attending special schools for the disabled, he was found to be a congenial and co-operative person who did everything he could to progress. Greg has a job with a window installer. He helps tear out old windows that are being replaced. He works under direct supervision and follows instructions given one at a time. He also does general clean- up of the job sites.

He holds a valid Ontario driver’s license and drives himself to work. In order to take his driver’s license test, he had to take an oral test. He can read the normal traffic signs, but cannot identify the “Name” signs.

The Appellant believes Greg is a good driver around town and she would not take his license away. He can see and identify a tree as a tree and can recognize voices. The Appellant is not concerned that he would run over a neighbour’s child on a tricycle riding on the street.

Greg has no difficulty with hearing, seeing, touching and smelling. He can identify single words.

Greg can operate the TV with a remote control and operate a V.C.R. He only remembers one set of instructions at a time and is capable of following a simple set of instructions.

For four years, he played goalie in a junior hockey league, but could not keep track of the score. He was unable to play other positions on the hockey team or to play basketball, as he could not remember where he should be on the playing surface at certain times during the play.

Although Greg’s memory is obviously very poor, when asked what he did or where he was ;the day before, he probably would not answer correctly. When the Appellant was asked if she took Greg to a Blue Jays’ game as a Special outing, she said he would remember it but not the score.

Greg can be left alone at the house without difficulty. Greg has a girl friend who spends a lot of time with him and accompanies him in the car on most occasions.

Analysis

The question is whether the Appellant’s dependent son Greg suffered from a severe and prolonged mental or physical impairment within the meaning of sections 118.3 and 118.4. Subsection 118.3(1) reads:

Where

(a) an individual has a severe and prolonged mental or physical impairment,

(a.l)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.

Subsection 118.3(2) permits a parent, among others, to claim the credit in respect of a dependent.

Subsection 118.4(1) reads:

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

[Emphasis added. I

(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.

If Greg’s condition is going to qualify for the disability tax credit, it has to be based on his disability of “perceiving”, “thinking” and “remembering”.

My colleague Bowman, in Radage v. R., [1996] 3 C.T.C. 2510 (T.C.C.) an informal decision released July 12, 1996, after dealing at great length with the meaning of these three words said, at page 2526:

The following conclusions may be drawn from the cursory review I have made of the above materials.

(1) While one must recognize and respect the philosophic bases that underlie the development of these concepts, one must endeavour to apply practical criteria that are meaningful in everyday life. On the other hand, one should not blithely proceed on the assumption that everyone knows what these common words mean and that therefore no attempt need be made to determine their meaning.

(2) As noted above, although I believe the words are used disjunctively, the activities of perceiving, thinking and remembering are closely connected. One cannot “think” without being able to retain concepts in one’s mind. Similarly, perceiving the external world is a necessary adjunct to rational thought.

(3) While a comprehensive definition of these terms that would satisfy all academics and theoreticians is likely impossible, for the practical purposes of applying sections 118.3 and 118.4, the following guidelines seem workable:

(a) Perceiving: The concept must be predicated upon the existence of an objectively verifiable external reality. However intellectually satisfying the theories of Hume and Berkeley may be in an academic or philosophical setting, they are out of place in the workaday world in which sections 118.3 and 118.4 must operate. Perception involves the reception and recognition of sensory data in a manner that conforms reasonably to common human experience. The man who mistook his wife for a hat would not be perceiving in the sense in which I have used the term. To revert to the passage quoted above from the Oxford Companion to the Mind, perceiving, in the sense in which I believe it is used in section 118.4, involves both percept and concept.

(b) Thinking: A state of anoesis is not necessary to qualify under sections 118.3 and 118.4. Thinking, for the purpose of those sections, involves a rational comprehension, marshalling, organization and analysis of that which the person has perceived and the formulation of conclusions there- from that are of practical utility or theoretical validity. The determination of the threshold that must be crossed is a matter of judgement. I am supported in this view by the judgment of Bowie J. of this court in Parsons v. R. 95-3409(IT)I, June 14, 1996. In that case he stated, after referring to the definition of “think” in the Oxford English Dictionary., 2nd. Ed:

The element which these definitions share, and which is therefore a necessary part of the process of thinking, is some degree of ratiocination. This is an active mental process which involves the formulation of original ideas, and the manipulation of ideas and concepts perceived. I am satisfied from the evidence of Mr. Parsons and Dr. Hanley that Mrs. Parsons is not capable in any real sense of forming original ideas, or of any reasoning process in respect of that which she perceives from the world about her. I find therefore that she is not capable of thinking, and thus that her condition satisfies the requirement of subparagraph 118.4(l)(c)(i) of the Act.

(c) Remembering: An inability to perform the mental activity of remembering - 1.e., the retrieval of previously perceived and stored data - is more than mere absent mindedness or the fading of the faculty of memory that besets many of us with advancing years. On the other hand, it is not only total amnesia that qualifies. A blow on the head, an accident or other trauma may bring about recent memory amnesia and yet distant memory may remain unimpaired Remembering, as the passage from the Oxford Companion to the Mind quoted above indicates, is both the acquisition of the memory and its retrieval. This analysis is appropriate for the purposes of sections 118.3 and 118.4.

As in the case of thinking, the severity of the impairment for the purposes of section 118.3 is ultimately a matter of judgement.

(4) It is easier to recognize either an ability or an inability to perceive, think and remember than to define the terms. One must attempt, on a case by case basis, to identify the type of impairment from which the individual suffers and determine whether that impairment is of such a severity that to grant the tax relief contemplated by sections 118.3 and 118.4 would fall within the object that those provisions envisage. One should guard against jumping too quickly to a conclusion that a person has a severe mental impairment. Such a finding may be based upon a failure to recognize that just because a person is “different” or sees the world differently from most of us, that person is mentally impaired.

Major J. of the Supreme Court of Canada, in Friesen v. R., (sub nom. Friesen v. Canada) [1995] 3 S.C.R. 103, [1995] 2 C.T.C. 369, 95 D.T.C. 5551, in writing for the majority, said at the bottom of the left hand column, at page 373 (D.T.C. 5553):

In interpreting sections of the Income Tax Act, the correct approach, as set out by Estey J. in Stubart Investments Ltd. v. R., [84 D.T.C. 6305], [1984] 1 S.C.R. 536, is to apply the plain meaning rule. Estey J. at page 578 relied on the following passage from E.A Driedger, Construction of Statutes (2nd ed. 1983), at page 87:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

He also said in the right hand side of the same pages 373-74 (D.T.C:

I accept the following comments on the Antosko case in P.W. Hogg and J.E. Magee, Principles of Income Tax Law (1995), Section 22.3(c) ‘Strict and purposive interpretation’, at nage 453-454:

It would introduce intolerable uncertainty into the Income Tax Act if clear language in a detailed provision of the Act were to be qualified by unexpressed exceptions derived from a court’s view of the object and purpose of the provision ... [The Antosko case] is simply a recognition that “object and purpose” can play only a limited role in the interpretation of a statute that is as precise and detailed as the Income Tax Act. When a provision is couched in a specific language that admits of no doubt or ambiguity in its application to the facts, then the provision must be applied regardless of its object and purpose. Only when the statutory language admits of some doubt or ambiguity in its application to the facts is it useful to resort to the object and purpose of the provision.

My colleague Sarchuk, in Finegan v. R., (sub nom. Finegan v. Canada) [1996] 2 C.T.C. 2609 (headnote only) (T.C.C.), an oral judgment released March 27, 1996, although he was dealing with the words “all or substantially all the time”, as they are found in paragraph 118.4( 1 )(b) said at paragraphs 25, 26 and 27 of his reasons:

This phrase is not defined. One is therefore required to give the language used in the Statute its common ordinary meaning, taking into account both the grammatical structure of the relevant section and its legislative intent and purport.

With respect to intent, it is clear from the legislation that the legislators, as a matter of policy, tended to create a very high threshold regarding the level of disability which must be met in order to qualify. That becomes evident, not only from the language of the subsection in issue but I note that subsection 118.4(1) was amended by 1990, c. 49, subsection 91(1) applicable to the 1991 and subsequent taxation years.

In comparison to the prior years, the current definition, that is, the one that is applicable to the taxation year before me, appears to be extremely narrow and restrictive. That change could only have been made in that direction as a result of the intention of the legislators, as a matter of policy, to tighten the availability of this section.

On the facts before me herein, the Appellant has failed to convince me that her son’s disability qualifies for the disability tax credit.

Consequently, the appeals are dismissed.

Appeal dismissed.