Gregory D. Kralik v. Her Majesty the Queen, [1997] 1 CTC 2147 (Informal Procedure)

Rowe D.J.T.C.C.: — The appellant filed an appeal from assessments of income tax for his 1990, 1991, 1992, 1993 and 1994 taxation years. However, in computing his tax liability for the 1990, 1991, 1992 and 1993 taxation years the appellant did not make any claim for a Disability Tax Credit and when the Minister of National Revenue (the “Minister”) issued Notices of Assessment with respect to those taxation years there were no Notices of Objection filed by the appellant within the prescribed time limit. Therefore, the purported appeals for the taxation years 1990-1993, inclusive, are not valid and are hereby quashed.

The appellant’s appeal from an assessment of income tax for the 1994 taxation year was filed within the prescribed time period. In computing his tax liability for that year the appellant claimed the tax credit relating to his disability which the Minister disallowed. The appellant did not appear to present his appeal and it was conducted on his behalf by his parents, Margaret Kralik and Rudolph Kralik.

Margaret Kralik testified she resides in Calgary, Alberta and is the mother of the appellant. Her son, Gregory Kralik, received severe head injuries in a motor vehicle accident on April 9, 1988. For seven days he was in a coma and the prognosis for his survival was poor. He progressed to the state where he was semi-comatose and then recovered to the point where he left hospital in May to go home. At that point, he could not walk, talk or dress himself. She stated that Gregory began attending at the hospital on a regular basis for physiotherapy and speech therapy and he regained his ability to walk and to talk although even today he has problems with balance and his speech is slurred when he becomes tired. Mrs. Kralik explained that Gregory’s memory was poor after returning home from the hospital in 1988 and still is not normal in the short-term, although his long-term memory is quite good. Today, he suffers from severe headaches and is easily fatigued. In the Spring of 1990, he took a course in meatcutting at Southern Alberta Institute of Technology (SAIT) and following completion found a job which lasted until he was laid off in August, 1990. His Record of Employment - Exhibit A-2 - prepared by his employer set forth the reason for the layoff as follows: Unsatisfactory Probationer. Mrs. Kralik stated that Gregory found another job which he kept for about six months but he could not perform the meatcutting function properly and was later hired as a helper in the shop. In 1994, he was working as a junior helper and his major problem was, and is, that he cannot do more than one task at a time. His condition today is about the same as it was in 1994 which, in turn, was mainly unchanged since 1990. He exhibits a high level of frustration with displays of anger. He is in good physical condition except for some back problems. He cannot adequately manage his own business affairs even though he operates his own bank account and currently lives on his own. In 1994 and 1995 he still lived at home with her and her husband. Mrs. Kralik explained that her son copes with his memory problems by writing things down and then performs one task at a time because he cannot concentrate on two matters at the same time. Any sort of requirement to handle multi-functions produces extreme agitation. It is necessary for her and her husband to explain things over and over to Gregory and he has difficulty reading and comprehending other than simple text. Since 1991, he has held a driver’s license but she recalled that it was extremely difficult for him to learn the material in the booklet in preparing for the written examination. In 1988, when the accident occurred, Gregory was 21 and had finished Grade 12. He had been working as a warehouseman at a door manufacturing company. His conduct today is marked by arguments with others because he does not know the answer to a problem and he will then apologize for his conduct. Often, he says, by way of explanation for his outbursts, “I can’t tell you what it is like in my head”. In order to cope with his balance problem he holds his arms out to the side. Sometimes he will “tune out” and stare straight ahead with a vacant look. He participates in an exercise program which involves running and is well able to feed and dress himself. He cannot remember things and worries about being able to live a normal life. The 1990 medical reports included as part of Exhibit A-l, for the most part, accurately reflect his condition as at 1994 but he was no longer on any tranquillizers in 1994 because they had caused him to suffer nightmares.

As noted in the medical report of Dr. Rocheleau, a specialist in physical medicine and rehabilitation, Gregory is able to recall numbers and perform simple mathematics but Mrs. Kralik commented that his problem lies in using logic. Dr. Adams prepared the Disability Tax Credit Certificate for Gregory on August 29, 1995 and indicated that the problem was permanent and involved his ability to think, perceive and remember. Mrs. Kralik explained that this deficiency manifests itself in the form of anger when Gregory is unable to handle stress posed by being faced with something other than a simple, one-step function. He has become physically violent on occasion towards his father when he cannot understand something. Prior to the severe head injury caused by the accident, he did not behave in this manner. She and her husband will explain things over and over to their son and often he will respond later by accusing them of not having given him certain information. At certain times he is able to joke about his disability and can enjoy going hunting with his father and for the past two years has been doing his own banking. The major problem is Gregory’s instantaneous inappropriate reaction to family, friends, co-workers and others which then causes him to apologize. He is friendly, outgoing, likes to talk with strangers and is regarded by others as being extremely personable. However, if too much information is being delivered to him he will either retreat into a vacant stare or, sometimes, will say, “I don’t want to hear any more”.

In February 1992, an assessment was done on Gregory which involved testing by a group of physicians over two days. The resulting report — which is not available at this time — was so negative that Mrs. Kralik did not show it to her son. She recalled that the report concluded Gregory was not going to get any better and that his income-earning potential was extremely limited to the point where he would probably have to work at menial tasks such as delivering papers. He scored below average in memory, reasoning and other cognitive functions. In 1994, Gregory lost his job and was unemployed until January, 1996 when he was able to return to Continental Door where he had worked before the accident. He works delivering orders by using a small truck to travel around Calgary and area. He earns $8.00 per hour. When he began working there he would return home at the end of the day completely exhausted due to the strain of trying to find certain addresses to make his deliveries. According to Mrs. Kralik, Gregory, like many people with head injuries, looks normal but it is extremely difficult to become close to such a person because their brain function has been affected and their personality has changed.

In cross-examination, Mrs. Kralik stated that Dr. Rocheleau last saw Gregory on November 27, 1992. In 1994, Gregory worked at a meat company on a part-time basis but only as a helper and not a meatcutter. In 1994 he was able to use his bank card to do transactions at the automatic teller machine but disagrees with any suggestion that his memory problems can be categorized as mild. He exhibits temper on a day-to-day basis and suffers from fatigue and poor concentration when performing tasks. Gregory must consult continually with her and her husband in order to make certain decisions ordinary to daily life or even in keeping an appointment.

Gregory Kralik testified he is Gregory’s father and that when Gregory helped out in his brother’s hunting camp he could do so only under close supervision. Gregory has had two minor motor vehicle accidents in the past couple of years. He stated he wished to advise the Court that Gregory did not have to study to re-instate his driver’s license and he was able to renew the one he had held prior to the accident in 1988. However, relearning how to drive was a slow process and he used to take his car out to the country where he permitted Gregory to practice driving on nearly empty roads. It took until 1993 before Gregory was able to drive again to the point where he could operate a vehicle within the city.

Counsel for the respondent agreed that the appellant’s impairment was permanent and that it was in the category of “thinking, perceiving and remembering” but submitted it was not “markedly restricted” as required by the legislation.

The relevant provision of the Income Tax Act is as follows:

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 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.

The disability tax credit is very narrow in its application. Often, there is considerable confusion as to the nature of this provision because appellants may be receiving payments from disability under the Canada Pension Plan, a private plan, an insurance policy from their previous employment or a government compensation program for disabled workers who can no longer continue their employment. However, entitlement under that type of specific program or private insurance policy does not mean that such a person will qualify automatically under the provisions governing the issuance of a disability tax credit under the Income Tax Act. In the within appeal, there is no doubt that the impairment is prolonged and is, in fact, permanent with no real hope of improvement and that it is in the category of perceiving, thinking and remembering which is included in the definition of a basic activity of daily living listed at paragraph 118.4(1)(c). It must be remembered that Parliament chose, in paragraph 118.4(1)(d), to exclude other activities, including working, housekeeping, a social or recreational activity from being considered as a basic activity of daily living. The effect of that can sometimes be a two-edged sword. Merely because an individual is able to work or to participate in social or recreational events or to do housework does not, without more, exclude that person from qualifying under the subsection. But, the ability to undertake these kinds of activities is often relevant in the overall assessment as to the degree of impairment suffered by the claimant and may, on occasion, relate to the secondary test as to whether such impairment has been present “all or substantially all of the time”. Apart from the duration requirement of the disability, the test that must be met by an appellant is to demonstrate that the basic activity of daily living is markedly restricted all or substantially all of the time even with the use of therapy, devices and medication or that it requires an inordinate amount of time thereafter to perform such activity.

I did not have the benefit of hearing testimony from the appellant. Perhaps he would not have been able to add much because it is difficult to tell others what one does not remember. Further, if one cannot perceive adequately or think logically then it is apparent it must be left to others, close to the problem on an ongoing basis, to explain it to a third party. But if an appellant chooses to attend work for the day instead of participating in his appeal, then that may affect the decision as there is always the need for an appellant to demonstrate the existence of the disability to the extent required under the Income Tax Act. The medical report of Dr. Rocheleau prepared on April 30, 1990 indicates, at page 7, under the area marked SUMMARY that:

Mr. Kralik continues to demonstrate problems related to his memory. Again, these are fairly mild. He has adopted some compensatory strategies and will make notes of things which he needs to remember in a prospective fashion. I strongly suspect that his intellectual abilities are not as good now as they were prior to the accident.

The evidence of Margaret Kralik was that, for the most part, Gregory’s condition in 1994 was substantially the same as it was in 1990. There is no doubt that he has suffered a serious head injury which has changed his life permanently. He has difficulty with his memory and will not be able to earn much money during his working life. He is restricted in his ability to carry out several tasks within the same general time frame and this causes him to be frustrated and angry, often at those closest to him.

The requirement of the legislation, in my view, has not been met as it pertains to the extent of the restriction. Taken as a whole over the course of days, weeks, months of the 1994 taxation year, Gregory’s difficulties in the area of perceiving, thinking and remembering must be examined with a view to considering the things he could do such as hold down a job, drive a car, live on his own, maintain his own bank account, participate in sports programs and generally live his life as best he could after having suffered the terrible injury. In arriving at a decision on this point I can only weigh all of the evidence, including the various medical reports, and see whether it satisfies requisites of the relevant portion of the legislation. There are many individuals who suffer from memory impairment due to causes other than head injury and still others have personality disorders which may stem from a variety of conditions or diseases. In each instance, it is necessary to look at the particular facts in a specific appeal and for that reason it is difficult to gain much assistance from other decisions in this area other than as they may relate to the statement of general principles. I have had the benefit of reading the decision of the Honourable Judge Mogan in the unreported case of Larivière v. R., (sub nom. Larivière v. Canada) [1995] 2 C.T.C. 2742 (D). The taxpayer there testified on her own behalf providing adequate response to various questions so that Judge Mogan was able to conclude on all of the evidence there was no basic activity of daily living she could not perform most of the time despite having a poor memory and periodic bouts of depression. However, in that case, the condition suffered by the taxpayer was a bi-polar disorder with some variations in effect and duration which provided the basis for dismissal on an alternative ground.

It should be pointed out that the 1991 amendment to the legislation governing disability tax credit has made it extremely difficult for persons to qualify. As a result, it is the subject of misunderstanding and confusion among persons affected directly or indirectly by a disability. There are many sad circumstances, as in the within appeal, but the cases must be decided in accordance within the jurisprudence based on the legislation as it is now - not as it was - or, in the eyes of many, on the law as it should be. A sometimes erratic assessment process does not help matters.

I cannot conclude on the evidence that the appellant is entitled to the disability tax credit and therefore the appeal is dismissed. As noted earlier, the purported appeals for the taxation years 1990-1993, inclusive, are quashed.

Appeal dismissed.