Roussel v. R., [1998] 3 CTC 2941

Tremblay T.C.J.:

Issue

The issue is whether, in computing his income for the 1994 taxation year, the appellant is justified in claiming a $719.61 non-refundable tax credit for mental impairment under sections 118.3 and 118.4 of the Income Tax Act (the “Act?’).

The appellant allegedly did not file a medical certificate despite being requested to do so twice by the respondent. According to the respondent, the file was given to physicians at Human Resources Development Canada at the notice of objection stage. Based on the information received, the appellant did not have a severe and prolonged mental or physical impairment the effects of which were such that his ability to perform a basic activity of daily living was markedly restricted.

According to the appellant, however, two psychiatrists found that he had a total and permanent disability. He said that this was the reason he lost his job with the Government of Quebec.

Burden of Proof

The appellant bears the burden of showing that the respondent’s assessments are unfounded. This burden of proof derives from a number of judicial decisions, including that of the Supreme Court of Canada in Johnston v. Minister of National Revenue) [1]

In Johnston, the Court held that the facts assumed by the respondent to support the assessments or reassessments are also deemed to be true until proven otherwise. In the case at bar, the facts assumed by the respondent are described in subparagraphs (a) and (b) of paragraph 3 of the Reply to the Notice of Appeal. That paragraph reads as follows:

[TRANSLATION]

3. In making this reassessment for the 1994 taxation year, the Minister relied, inter alia, on the following facts:

(a) on November 9, 1994, and July 4, 1995, as part of a review program for the 1994 taxation year, the Minister requested the appellant to provide an original medical certificate (T2201) so that his application for a non- refundable disability tax credit could be considered;

(b) since the appellant did not respond to the Minister’s requests, the Minister issued a notice of reassessment dated October 2, 1995, denying the appellant the $719.61 non-refundable disability tax credit.

Facts in Evidence

The appellant was the only person who testified. He testified calmly and expressed himself clearly.

During his testimony, he filed a series of documents. Exhibits A-1 to A- 8, consisting primarily of letters between him, his psychiatrists and his attending physician. A 29-page series of letters to the Tax Court of Canada and the respondent was also filed as Exhibit A-9. The documentation provided shows that the appellant was examined by four psychiatrists. However, he filed medical reports by only two psychiatrists, Dr. Pierre Dorion (Exhibit A-7) and Dr. Frédéric Grunberg (Exhibit A-8).

The comments and conclusion on pages 5-6 of Dr. Grunberg’s report provide a good summary of his position:

[TRANSLATION]

Comments

Roger Roussel appears to be an intelligent person who has managed to educate himself and become independent in spite of adversity and deprivation in his childhood.

He has been working for the Government of Quebec for 27 years but, according to his own perceptions of himself, has not obtained the recognition and credit he deserves. He feels that he has been stuck for 14 years in a position as an administrative specialist. In addition, Mr. Roussel has a personal profile characterized by rigidity, a superiority complex and a lack of flexibility and adaptability in an organization such as a government bureaucracy.

In this inevitably conflictual work context, and given Mr. Roussel’s personality traits, he has insidiously developed a mental disorder characterized by querulousness that leads him to become totally involved in endless litigation. This pathology corresponds to what is called querulous paranoia. It is a rather uncommon mental disorder characterized simply by a highly systematized delusion of persecution that does not affect intellectual functions or judgment outside the sphere of the delusion. However, this pervasive delusion influences the behaviour of the person affected, who will spend a good part of his or her life seeking justice by getting involved in virtually endless legal proceedings, to his or her own detriment. Unfortunately, this is a chronic illness that does not respond well to psychiatric treatment.

Conclusion

I therefore conclude that because of his mental disorder, Roger Roussel is unable to resume his work as an administrative specialist with the MEQ [Ministère de I’Education of Quebec],

Having regard as well to the chronic nature of his illness and his guarded prognosis, I am of the opinion that Roger Roussel should be considered totally and permanently disabled.

Dr. Dorion reached the same conclusion in his four-page report.

However, neither Dr. Dorion (Exhibit A-6) nor Dr. Grunberg (Exhibits A-l and A-2) wanted to complete form T2201, “Disability Tax Credit Certificate”, which must be completed by the attending physician. The two psychiatrists argued that they were not attending physicians or acted only as experts.

According to the appellant, his attending physician did not want to complete the form either, since he knew nothing about psychiatry.

As Exhibit 1-1, the respondent filed a form T2201 dated April 20, 1995, but the form was completed by the appellant himself, who answered “yes” to the following questions: (1) whether the patient has a prolonged impairment; (2) ... a severe impairment; and (3) ... markedly.

However, when he testified the appellant admitted, with reference to the form, that he does not have a disability relating to vision (although he wears corrective lenses), speaking, hearing or walking. Moreover, his bowel and bladder functions are not impaired and he can feed and dress himself easily without anyone’s help.

As Exhibit 1-2, the respondent filed a form T749, “Transmittal Sheet- Disability Tax Credit”, from Dr. J. Harris of Human Resources Development Canada. It is dated October 19, 1995, and was received by the respondent on October 24, 1995. On the basis of the questionnaire received, the physician recommended that the tax credit be denied.

Act

The issue in this case arises under subsections 118.3(1) and 118.4(2) of the Act. They read as follows:

118.3: Credit for mental or physical impairment.

(1) 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)(&.l)) 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.

118.3(4) Department of National Health and Welfare. The Minister may obtain the advice of the Department of National Health and Welfare as to whether an individual in respect of whom an amount has been claimed under subsection (1) or (2) has a severe and prolonged impairment, the effects of which are such that the individual’s ability to perform a basic activity of daily living is markedly restricted, and any person referred to in subsection (1) or (2) shall, on request in writing by that Department for information with respect to an individual’s impairment and its effects on the individual, provide the information so requested.

118.4: Nature of impairment.

(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.

Analysis

One of the arguments made by the appellant was as follows:

[TRANSLATION]

Judge Tremblay, what qualifications do you have to contradict the conclusions in psychiatrists’ reports stating that I have a total and permanent disability?

The Court notes that this question is a very sensible one that shows the appellant is thinking clearly.

The issue that the psychiatrists had to resolve was whether the appellant was able to continue doing his work as an administrative specialist with the Ministère de l’Éducation of Quebec (MEQ).

The psychiatrists’ conclusions are clear: Mr. Roussel cannot continue working.

The issue that this Court must resolve is whether the effects of the appellant’s impairment are such that his ability to perform a basic activity of daily living is markedly restricted within the meaning of paragraphs 118.3(1 )(a.l) and 118.4(l)(c) of the Act.

In his testimony, the appellant was very honest and in substance admitted that the effects of his impairment are not such that his ability to perform a basic activity of daily living is markedly restricted [para. 13].

Moreover, no attending physician wanted to file a report stating that this was the case. As required by paragraph 118.3(1)(a.2) of the Act [para. 11].

His impairment actually relates to the performance of his work as an administrative specialist with the MEQ.

However, work-related activities are excluded, as are housekeeping and social and recreational activities (118.4(1 )(J)).

Conclusion

For the above reasons, the appeal is dismissed.

Appeal dismissed.