Beaubier T.C.J.:
1 This appeal, pursuant to the Informal Procedure, was heard at Calgary, Alberta on February 27, 1998. The assumptions in the Reply read as follows,
In so reassessing the Appellant, the Minister made the following assumptions of fact:(a) Trisha is the Appellant's daughter;
(b) Trisha's date of birth is July 31, 1977;
(c) Trisha is dependent on the Appellant by reason of mental or physical infirmity;
(d) the Appellant is entitled to and has claimed a deduction under paragraph 118(1)(b) of the Income Tax Act, (the “Act”) in respect of Trisha;
(e) a medical doctor has not certified in prescribed form that Trisha has a severe and prolonged physical impairment the effects of which are such that her ability to perform a basic activity of daily living was markedly restricted;
(f) the effects of Trisha's impairment is such that her ability to perform a basic activity of daily living is not markedly restricted.
2 They are in respect to the Appellant's claim for 1994.
3 Subparagraph (d) of the assumptions is contradictory on the very issue before the Court when it is compared with subparagraph (f). Similarly, the counsel for the Respondent suggested that the medical certificate prescribed by paragraph 118.3(1)(a.2) of the Income Tax Act is not a prerequisite to a successful claim or an appeal, although no case law precedents were presented in support of this suggestion.
4 Paragraph 118.3(1) reads, in part,
- (1) Where
(a) an individual has a severe or 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 118.2(2)(b.1) for the year by the individual or by any other person,...
5 As was clearly stated by McArthur, J.T.C.C. in Giovinazzo v. R., [1996] 3 C.T.C. 2913 (T.C.C.), paragraph (a.2) is direct and express: a proper medical certificate is a mandatory prerequisite to a claim or an appeal for this tax credit. Indeed, the Court was unable to find any decision to the contrary.
6 Subsection 118.4(1) of the Income Tax Act reads,
- (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.
7 In 1994 Trisha was 17. She attended a special needs class at school. She dressed herself and would choose warm outer clothing on a cold day. She fed herself and could prepare a simple meal. She could do simple jobs, such as photocopying and stapling. She has somewhat restricted vision, but she can see. There is no evidence that she has trouble speaking, hearing, eliminating or walking within subsection 118.4(1).
8 On the evidence, Trisha can perceive, think and remember within the requisites set out in subsection 118.4(1). The doctor's certificate which stated that she was not impaired or restricted within the meaning of subsection 118.4(1) was correct.
9 For these reasons and because the Appellant has not obtained and filed a proper medical certificate, as is clearly required by the Income Tax Act, the Appeal is dismissed.
10 The conflicting assumptions in this case, coupled with the lengthy and confused statement by respondent's counsel, would cause this Court to award costs to the Appellant in a normal case. However, these merely encouraged the appellant in her effort to discount the medical opinion, which was both responsible and professional.
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