Tremblay T.C.J.:
1 This appeal was heard under the informal procedure at Montréal, Quebec, on April 29, 1997.
1. Point at Issue
2 According to the Notice of Appeal and the Reply to the Notice of Appeal, the point at issue is whether the appellant is correct in claiming a non-refundable disability tax credit of $1,439.22 ($8,466 × 17%) for a dependant, his son Éric, in computing his income for the 1994 taxation year.
3 The respondent allowed the credit for the older son, Jonathan, but disallowed it for Éric, who, in the respondent's view, did not have a severe and prolonged impairment. This was apparently also the physician's opinion.
4 The appellant contends that both children have Tourette's syndrome, that is to say that they are hyperactive. They must always be under supervision and cannot be left alone. They are threatening, insulting and aggressive. The mother cannot work outside the home. According to the appellant, Éric takes the same medication as Jonathan. Consequently, in his view, the tax credit should be granted for him as well.
2. Burden of Proof
5 2.01 The burden is on the appellant to show that the respondent's reassessment is incorrect. This burden of proof arises from a number of judicial decisions, including a judgment rendered by the Supreme Court of Canada in Johnston v. Minister of National Revenue
6 2.02 In that judgment, the Supreme Court held that the facts assumed by the respondent in support of the assessment or reassessment are presumed to be true until proven otherwise. The facts presumed by the respondent in the instant case are described in subparagraphs 5(a) to (f) of the respondent's Reply to the Notice of Appeal. Paragraph 5 reads as follows:[TRANSLATION]- 5. In making the reassessment of October 15, 1996, for the 1994 taxation year, the Minister made the following assumptions of fact:
(a) the appellant submitted disability tax credit certificates (T2201A) for each of his sons, Éric and Jonathan; these were dated September 7, 1995, and duly signed by Dr. Guy Geoffroy (the “medical doctor”); [ admitted]
(b) according to the T2201A prepared for Éric, he did not have a severe and prolonged impairment the effects of which were such that his ability to perform a basic activity of daily living was markedly restricted; [ denied]
(c) in a telephone conversation on August 29, 1996, the medical doctor stated that Éric was not violent and was not a serious case like his brother Jonathan; [ denied]
(d) in the telephone conversation referred to in subparagraph (c), the medical doctor confirmed for us that, unlike Jonathan, Éric did not have a severe and prolonged impairment the effects of which were such that his ability to perform a basic activity of daily living was markedly restricted; [ no knowledge]
(e) in a telephone conversation with an employee of Human Resources Development Canada on August 29, 1996, it was determined that, based on the information received, Éric did not have a severe and prolonged impairment the effects of which were such that his ability to perform a basic activity of daily living was markedly restricted; [ no knowledge]
(f) accordingly, the Minister denied the appellant the non-refundable disability tax credit in respect of his son Éric and allowed the credit for Jonathan. [ admitted]
3. Facts in Evidence
7 The evidence was adduced through the testimony of the appellant, his spouse Carolle and Dr. Guy Geoffroy and by the filing of form T2201A (Exhibit I-1).
3.01 Appellant's Testimony
8 3.01.1 This witness lives in Huntingdon, Quebec, and runs a filtration plant.
9 3.01.2 According to the witness, Jonathan, 15, and Éric, 13, attend the Polyvalente Arthur-Pigeon. Both children are in Secondary 2, but not in the same class. Jonathan has failed a year twice.
10 3.02 Éric has been on medication since primary school. He is currently taking CYLERT (a concentration stimulant), ARAT (an anti-tic medication) and PROCYCLIDE (to prevent the side effect of ARAT, namely acute dystonia, which consists in severe muscle contractions).
11 Both children must take medication every day. They make noises with their mouths, even in class, are verbally abusive, and are violent with each other. When the parents do not hear them quarrelling, they are concerned and wonder what mischief the boys are up to. It is not easy to find babysitters and they have had bad experiences in this regard.
3.03 Carolle Lessard's Testimony
12 3.03.1 This witness, who is the appellant's spouse and the children's mother, explained that education specialists, psychiatrists and psychologists had been consulted since the children were very young. The children had to be under constant supervision. The witness could not leave them alone at home. She went shopping when they were at school. As the appellant works days for two weeks, then nights for two weeks, she must stay home alone with the children for two weekends each month.
13 Part of the boys' behaviour is saying that their parents beat them. Then, when asked why they said that when they knew it was false, they answer that it was a joke.
14 3.03.2 The witness had begun working for her brother, who owned a convenience store. She had to give up the job because no babysitter wanted to come back.
15 The boys are sometimes invited over by friends, but they cannot be sent off together because they fight. When they go separately, they behave properly and are polite.
3.04 Dr. Guy Geoffroy's Testimony
16 3.04.1 This witness, a neurologist at the Hôpital Ste-Justine, explained that Tourette's syndrome is a disease characterized by tics (convulsive contractions of certain muscles together with ridiculous or annoying habits).- 1- There are motor tics:
(a) simple: eyebrow movements;
(b) complex: gestures; e.g., coproprexia - rubbing of the genitals. Both children suffer from this.
- 2- There are sound tics:
(a) simple: throat clearing;
(b) other stronger tics: grunting (from which these children suffer);
(c) there is also yelping;
(d) coprolalia: foul language (from which these children suffer).
17 The worst part of it is the pathological urges (random surges of organic tendencies) or the syndrome associated with co-morbidity.
18 According to research that has been conducted, 70 per cent of individuals afflicted with Tourette's syndrome suffer from retention disorders and incredible hyperactivity, the result of which is a loss of self-esteem. These children suffer from this.
19 Sixty per cent suffer from obsessions (e.g. they are afraid of germs and wash their hands 50 to 60 times a day) and behavioural disorders (aggressiveness and rage).
20 3.04.2 As Exhibit I-1, the respondent had the witness file form T2201A entitled “Disability Tax Credit Questionnaire”. The questionnaire was completed and signed by the witness. The questions and answers are as follows: [not included]
21 With respect to question 4, under which Jonathan's credit was allowed, the witness contended that Éric's case was different. This could be seen by the fact that he moves up a grade every year, although he is not necessarily among the best in his class.
22 3.04.3 The witness stated that anyone who read this report would conclude that it concerned a person in good health, which is incorrect. The problem is simply that the Act makes no provision for the effects of a disease such as Tourette's syndrome. He concluded, “You know, this disease is going to be with him all his life.”
4. Act - Analysis
4.01 Act
23 The main statutory provisions invoked in this case are sections 118.3 and 118.4 and subsection 118.3(4) of the Income Tax Act. These provisions 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.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,
A × $4,118
whereA 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 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.
4.02 Analysis
24 4.02.1 There is no doubt in the Court's mind that Parliament should amend the Act so that persons afflicted with Tourette's syndrome, having severe tics, may be considered as suffering from an impairment giving rise to a non-refundable tax credit. The Court recommends that this be done.
25 4.02.2 Unfortunately, as currently drafted, the legislation allows a non-refundable tax credit for such individuals only in very extreme cases. Based on the medical report (Exhibit I-1: 3.04.2), the Court cannot decide otherwise.
26 The respondent's assessment must be confirmed.
5. Conclusion
27 For the aforementioned reasons, the appeal is dismissed.
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