Lamarre Proulx T.C.J.:
1 The Appellant has filed a Notice of Appeal by way of the informal procedure for the years 1994 and 1995.
2 Respecting the appeal for the year 1995, in the Reply to the Notice of Appeal (the “Reply”) and at the beginning of the hearing, the Respondent made a preliminary motion to quash the purported appeal, on the basis that no Notice of Objection had been filed with the Minister of National Revenue (the “Minister”), as required by section 165 of the Income Tax Act (the “Act”).
3 Accompanying the preliminary motion was an affidavit of an agent of the Minister stating the following:
I, Dennis Jenkinson, of the City of Toronto, in the Province of Ontario, MAKE OATH AND SAY AS FOLLOWS:1. I am an Officer of the Toronto Designated Appeals Office of the Department of National Revenue (the “Department”) and as such have charge of the appropriate records and knowledge of the practice of the Department.
2. I have examined the records relating to the appeal of BRIDGET CAMERON and as such have knowledge of the matters hereinafter deposed to.
3. A careful examination and search of the records shows that:
(a) the Appellant was assessed for the 1995 taxation year by Notice of Assessment dated April 18, 1996;
(b) the Appellant has not been further reassessed for the 1995 taxation year subsequent to April 18, 1996.
4. After a careful examination and search of the records, I am unable to find that a Notice of Objection has been made under section 165 of the Income Tax Act in respect of the Notices of Assessment referred to in paragraph 3(a) above for the 1995 taxation year.
4 These facts were not contested by the Appellant but she said that she believed she could include the year 1995 with her appeal for the year 1994, without going through the Notice of Objection phase as the facts for those two years were similar.
5 The Reply is dated March 11, 1997. On March 12, 1997, a letter was sent by the Department of Justice, by registered mail, to the Appellant informing her of the above and that the time period for her to serve the Notice of Objection to the Minister was April 30, 1997. At the hearing, the Appellant said that she believed she wrote to the Minister, following this letter.
6 Section 165 of the Act requires that for each assessment to which the taxpayer objects, a Notice of Objection be served to the Minister. Unless this procedure is followed, there is no valid appeal to this Court. Consequently, the purported appeal for the year 1995 is quashed as not being a valid appeal.
7 The question at issue for the year 1994 is whether the Appellant is entitled to a tax credit for an impairment, the effect of which is such that it restricts her in a basic activity of daily living, all or almost all the time, even with the use of appropriate devices, medication or therapy by virtue of subsection 118.3(1) of the Act.
8 The facts that the Minister took into consideration to refuse the tax credit to the Appellant are described in the Reply as follows:
(a) the certificate, as described in paragraph 118.3(1)(a.2) of the Act, dated November 16, 1995 that was filed with the Minister by the Appellant does not indicate that the Appellant had an impairment severe enough to restrict a basic activity of daily living of the Appellant all or almost all the time, even with the use of appropriate aids, devices, medication, or therapy in the 1994 taxation year;
(b) in the 1994 and 1995 taxation years, the Appellant was not suffering from a severe and prolonged mental or physical impairment the effects of which were such that the Appellant's ability to perform a basic activity of daily living was markedly restricted;
9 The Appellant in her Notice of Appeal says the following:
I feel that the assessment to deny disability benefits is wrong as I am physically unable to support myself due to the chronicity of my disability, Rheumatoid Arthritis. The crippling effects that Rheumatoid Arthritis has had on my joints and extremities make routine daily activities difficult, painful and sometimes unbearable. I am dependent upon devices such as a hydraulic bath chair to assist getting into and out of a bath. I must use an elevated toilet seat. I am unable to walk distances and must use handicapped parking areas, driving a vehicle is also difficult. Gross and fine motor skills requiring strength and or dexterity are difficult and painful, eg. dressing, walking, ascending and descending stairs, household chores and lifting my grandchildren. These are all tasks that I would not have given a second thought to doing before my body was stricken with Rheumatoid Arthritis.
Rheumatoid Arthritis has made me dependent upon others and has taken away much of my life. It has made my days often long, painful and difficult to endure not only physically but also mentally. I have gone from being a hard working, self-sufficient woman to a person that often does not look forward to the pain that tomorrow holds.
I have endured many treatments, drugs and their adverse effects to try to help my condition. e.g. physiotherapy, anti-inflammatories, cortisone injection, prednisone, gold treatments, codeine, pepcid and anti-depressants ... some of the adverse effects I have experienced include; alopecia, nausea, depression, liver and blood damage.
10 Exhibit A-1 is the certificate signed by Dr. Bianchi, dated November 16, 1995. To question 9 of the prescribed form: “Is the impairment severe enough to restrict the basic activity of daily living identified above, all or almost all the time, even with the use of appropriate aids, devices, medication or therapy”, the doctor answered “No”. He had answered “yes” to all questions as to whether the patient was able to perform the described basic activity of daily living except that respecting the activity “walking” he had answered “variable” and “yes”.
11 Dr. Bianchi is the Appellant's rheumatologist who has been following her since 1989, when the first symptoms of her disease began to appear.
12 The Appellant has filed a letter of another doctor, Dr. M. Gallego, her family doctor, as Exhibit A-2. This letter dated September 18, 1997, says the following:
Re: Mrs. Bridget Cameron
The above named suffers from arthritis and this is very active and has been progressing. She has considerable pain and stiffness and her walking has been restricted to 100 to 200 meters in about twenty minutes.
She also has difficulty raising from her bed or a chair and her standing is also restricted to forty-five minute periods or less.
On top of all of this she has been diagnosed with Diabetes and Osteoporosis.
The first symptoms of her arthritic disease appeared in May 1989 and she became totally disabled on April 13, 1991.
13 This doctor had completed an “Additional Disability Questionnaire” on July 20, 1996. This document was filed as Exhibit R-1. In it, this doctor stated that the patient was markedly restricted although he also had answered “yes” as to whether the patient was able to perform all the described activities of daily living. The comments of the physician were the following:
Comments of Physician
Her disease slows her on performance of all activities of her daily life, starting to getting up from bed in the morning.
Activity(ies) That Requires an Inordinate/Excessive Time to Perform
Walking distances longer than 50m to 200m.
Length of Time
Twenty minutes.
14 The Appellant testified that before the beginning of her disease, she worked as a dietary aid in a home for handicapped children and loved her work. She said that now she was in constant pain. The content of her testimony was similar to that one expressed in her Notice of Appeal. She could dress and feed herself, walk and do all the other activities of daily living although with pain. She also mentioned as she had done in her Notice of Appeal that she was in receipt of a disability pension from the Canada Pension Plan as of August 14, 1991, from the Hospitals of Ontario Pension Plan “HOOPP” from May 1, 1993, and from the Mutual Life of Canada from November 9, 1991.
Analysis
15 Paragraph 118.3(1) and paragraph 118.4(1) of the Act read as follows:
118.3(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 because 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.
118.4(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.
16 The evidence has shown that in the year 1994, the Appellant's state of health was sufficiently good, that it did not come within the terms of the impairment contemplated by the Act for the purpose of the tax credit. This is what is expressed in the medical certificate issued by the Appellant's rheumatologist (Exhibit A-1) and this is what comes out from the Appellant's description of her activities of daily living.
17 I understand that rheumatoid arthritis is a degenerative disease and it may be that in later years (although only the contrary may appear to be desirable), the Appellant's state of health would become such that the Appellant would be entitled to the tax credit contemplated by section 118.3 of the Act.
18 It must be understood that the tax credit under subsection 118.3(1) of the Act is not granted to every person who suffers from a physical impairment. The Act prescribes that the impairment must be of such a severity that it prevents or markedly restricts a person's ability to perform a basic activity of daily living, even where this person is assisted with the appropriate medication, therapy or devices.
19 Under paragraph 118.4(1)(d) of the Act, working and housekeeping are not considered basic activities of daily living for the purposes of the said tax credit. A person may thus be in receipt of a disability pension regarding her work and not be entitled to the disability tax credit provided for in subsection 118.3(1) of the Act.
20 Consequently, for the above-stated reasons, the appeal for the year 1994 is dismissed and the appeal for the year 1995 is quashed, as not being a valid appeal.
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