Date: 19980805
Docket: 95-3666(IT)I
BETWEEN:
BRUCE A. LEVER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Somers, D.J.T.C.C.
[1] This appeal was heard in Renfrew,
Ontario, on July 13, 1998, pursuant to the Informal Procedure of
this Court, concerning the Appellant's 1994 taxation
year.
[2] The issue in this case is whether
the Appellant is entitled to an amount for mental or physical
impairment pursuant to section 118.3 of the Income Tax Act
(the "Act") in the computation of his
non-refundable tax credits and tax payable for the 1994 taxation
year.
[3] In assessing the Appellant, the
Minister of National Revenue (the "Minister") made the
following assumptions of fact:
"(a) the Appellant
claimed the Disability Amount in respect of chronic severe Panic
Disorder and Agoraphobia from which he suffers;
(b) the
above-described impairments of the Appellant did not markedly
restrict his ability to perform a basic activity of daily living
during 1994; and
(c) the Appellant
was not entitled to include the Disability Amount in the
computation of his non-refundable tax credits and tax payable for
the 1994 taxation year."
[4] In assessing the Appellant, the
Minister relied on section 118.3 and subsection 118.4(1) of the
Act which read in part as follows:
"Section 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 because of
paragraph 118.2(2)(b.1)) 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.
...
Section 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.
..."
[5] The Appellant, born in 1957,
retired from the Armed Forces in 1984 due to illness which became
apparent in 1982. Subsequently, he worked as a commissionaire for
five years. He relinquished that position in April 1992 realizing
his disability and was unable to work. He has not worked since.
He consequently obtained a pension under the Canada Pension
Plan.
[6] The Appellant suffers a disability
derived from Agoraphobia and Panic Disorder. Since 1992, the
Appellant constantly stays at home, 85% of the time he locks the
doors of his house because he is afraid of visitors, even family
friends or neighbours. When somebody drives into his laneway, he
gets panic attacks, becomes shaky and sweaty. He takes refuge in
the recreation room in order to avoid encounters with other
people except his wife and his son. Once a week he phones his
mother who lives in British Columbia. These are the only people
he can come in contact or communicate with. He therefore avoids
situations which create these panic attacks.
[7] He stated that he has poor memory
due to medication. His memory, according to him, is getting
progressively worse. The Appellant admits that he can do light
work around the house such as cooking. He does his banking and
other outings only when accompanied by his wife.
[8] The disability tax credit
certificate, dated January 25, 1995, signed by the Appellant and
his medical doctor states that the Appellant is able to perceive,
think and remember, do personal care (eating/dressing) without
supervision and manage his personal affairs. At this hearing, he
disagreed with the answers given on the certificate as to his
mental functions. His own testimony does not allow me to
contradict the answers stated on the certificate.
[9] Dr. Y.D. Lapierre, M.D.,
Department of Psychiatry at the University of Ottawa was a
witness for the Respondent. He explained the Appellant's
mental and physical state. The witness based his opinion on the
Appellant's medical history by examining paper evidence,
medical reports from his doctor and the Appellant's testimony
in Court. Although Dr. Lapierre did not personally examine the
Appellant, he could give his learned opinion on his health
problems. According to this expert witness, the Appellant's
mental and physical disorders can be treated with medication
although not with the same level of success in all cases, but
usually the disorders can be controlled at 70%.
[10] In his medical report, the witness
explained the meaning of a panic attack:
"A panic attack is a discrete period of intense anxiety,
fear and discomfort that is accompanied by a series of physical
and intellectual or cognitive symptoms. The attacks may occur in
a totally unexpected manner. They may be triggered by certain
situations and indeed specific situations predispose certain
patients to attacks. These situations are quite individualized to
each sufferer. The anxiety attacks have a sudden onset, build to
a peak rapidly, usually within ten minutes, and are accompanied
by a sense of imminent danger or doom, with the natural response
being an urge to escape from the location where the attack is
occurring. Panic disorder is considered to be present when these
panic attacks occur repeatedly and lead to a persistent concern
over a period of time (at least one month) that they may
reoccur.
Agoraphobia is anxiety about being in places or situations
from which escape might be difficult or in which help may not be
available in the event of a panic attack. It is rare for an
individual to have agoraphobia as an isolated symptom. It is,
however, a common outcome of panic disorder as a number of people
tend to associate their panic attacks with specific situations
which they then avoid in the hope of preventing the occurrence of
further attacks.
A pure and uncomplicated panic attack does not lead to serious
impairment of function, however, agoraphobia impairs the
individual by the avoidance of situations such as travel to work,
carrying out responsibilities and activities away from home,
being in crowds, automobile travel, etc. These individuals can
then become housebound and occasionally search for a companion
for added security.
The treatment of these disorders is usually a combination of
medication, cognitive psychotherapy and, at times, behavioural
therapy for modification of the agoraphobic behaviour.
The limitations of functioning are derived from two sources.
One is the anxiety accompanying the panic attacks. This is
short-lived and as such does not produce a prolonged period of
disablement. However, the behavioural changes associated with
agoraphobia are more incapacitating in that the individual cannot
leave his location of security without severe discomfort and
apprehension. Within the "safe zone", there usually are
no serious limitations."
[11] Based on general medical principles
applicable, Dr. Lapierre gave his opinion as to the
Appellant's mental and physical disorders. In his report he
writes as follows:
"Based on the description, it is clear that Mr. Lever is
able to function within the home and that his social interaction
is severely limited away from the security of the home. In
essential matters, he can extend his radius of movement away from
home beyond and attend "essential business matters".
Otherwise, these affairs have to be taken care of by his
wife."
He concludes as follows:
"In the case at hand of Lever, it appears that this
gentleman is able to function within the home. He is even able to
attend essential business matters outside the home. He appears to
communicate effectively and when accompanied can - albeit with
difficulty - overcome agoraphobic limitations and attend
important appointments, etc."
[12] By listening to the Appellant explain
his problems in Court, Dr. Lapierre was able at first hand
to arrive at the same conclusion as stated in his written report
dated June 27, 1997.
[13] An explanation is given of the
interpretation of subsection 118.4(1) in a decision from this
Court in Brookshaw and Her Majesty the Queen [1994]
2 C.T.C. 2360 which reads in part as follows:
"In order to claim a credit for physical impairment under
subsection 118.3(1) of the Act, an individual must have an
impairment such that the effect of it would markedly restrict the
individual's ability to perform a basic activity of daily
living. Section 118.4 confines "markedly restricted" to
situations where all or substantially all of the time, even with
therapy and the use of appropriate devices and medication, the
individual is unable (or requires an inordinate amount of time)
to perform a basic activity of daily living."
[14] In the case of Wanda A. Campbell v.
the Queen (95-2003(IT)I), Judge Rowe stated:
"There is no doubt the legislation is designed to bar the
claim for all but the most severely handicapped."
[15] The disability tax credit certificate
signed by the Appellant's personal physician Dr. S.E. Simson,
Psychiatrist, stated that the Appellant is able to perceive,
think and remember, can do personal care (eating/dressing)
without supervision and manage his personal affairs. Dr. Y.D.
Lapierre, Psychiatrist, arrived at the same conclusion. During
the hearing, I was able to observe the Appellant's capability
of testifying in a clear, articulate and logical fashion. There
did not appear to be a great loss of memory suffered by the
Appellant.
[16] Although the Appellant suffers a
prolonged illness, he can perform his basic activities of daily
living. The Appellant cannot work due to his impairment but work
is not considered a basic activity of daily living pursuant to
section 118.4 of the Income Tax Act.
[17] The evidence has shown that the
Appellant has a serious prolonged mental and physical impairment
but the Court cannot conclude that the Appellant is markedly
restricted all or substantially all of the time.
[18] The appeal for the 1994 taxation year
is hereby dismissed.
Signed at Ottawa, Canada, this 5th day of August 1998.
D.J.T.C.C.
Email this Content