McMaster v. The Queen, docket 97-1402-IT-I (Informal Procedure)

Date: 19980422

Docket: 97-1402-IT-I

BETWEEN:

FERNAND McMASTER,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

Lamarre Proulx, J.T.C.C.

[1] This is an appeal from an assessment made by the Minister of National Revenue (“the Minister”) for the 1995 taxation year.

[2] The issue is whether the appellant is entitled to the physical impairment tax credit provided for in section 118.3 of the Income Tax Act (“the Act”) because of gluten-sensitive enteropathy, commonly known as celiac disease.

[3] The facts on which the Minister relied in disallowing that tax credit are stated as follows in paragraph 10 of the Reply to the Notice of Appeal (“the Reply”):

[TRANSLATION]

(a) the appellant attached a completed Form T2201, “Disability Tax Credit Certificate”, to his tax return for the 1995 taxation year;

(b) the Disability Tax Credit Certificate was signed by a licensed medical doctor, Dr. Michel Lemoyne, who diagnosed his patient as having gluten-sensitive enteropathy but who felt that the appellant was keeping the disease in remission provided that he adhered to a strict gluten-free diet;

(c) the Minister determined that the appellant’s ability to perform the basic activities of daily living is not markedly restricted;

(d) during the 1995 taxation year, the appellant’s ability to perform the activities of daily living was not clearly restricted because of a severe and prolonged mental or physical impairment.

[4] The appellant is retired. As Exhibit A-1, he filed the doctor’s certificate referred to in subparagraph 10(a) of the Reply. In response to the question in box 717 of the certificate, “Indicate which basic activity of daily living is markedly restricted”, the doctor checked “Feeding & Dressing”. In Part B, the doctor described the medical diagnosis as follows: [TRANSLATION] “Gluten-sensitive enteropathy. This disease requires close adherence to a strict gluten-free diet if it is to be kept in remission. The food is much more costly than comparable food containing gluten.” Also in Part B, in response to question 6, “Is your patient able to feed himself/herself, using an aid if necessary?”, the doctor checked “Yes” but added “but strict adherence to the diet is necessary”.

[5] The doctor answered “Yes” to question 8, “Has the impairment lasted, or is it expected to last, for a continuous period of at least 12 months?”, and added “diet must be adhered to for life”. To question 9, “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 . . . medication, or therapy?”, the doctor answered “Yes, if the patient does not adhere to his diet”.

[6] As Exhibit A-2, the appellant filed Celiac Disease: Myths versus Facts, a pamphlet published by the Canadian Celiac Association. It contains the following passages:

Celiac Disease is a LIFELONG condition.

. . .

It is more likely to be missed. The disease is a great mimicker and may present with constipation or abdominal pain or vomiting or anaemia and not with the classical text book symptoms of diarrhea, weight loss (or failure to grow) and steatorrhoea (fatty stools).

. . .

The only current reliable test for Celiac Disease is an intestinal biopsy while the patient is still taking gluten.

. . .

Effective treatment of Celiac Disease requires strict exclusion of gluten from the diet FOR LIFE. Many foods unexpectedly contain gluten and expert dietary instruction is essential, if the person with Celiac Disease is to avoid all sources of gluten and yet maintain a balanced and nutritious dietary intake.

. . .

Celiac Disease is a medical condition in which the absorptive surface of the small intestine is damaged by a substance called gluten. This results in an inability of the body to absorb nutrients: protein, fat, carbohydrates, vitamins and minerals, which are necessary for good health.

. . .

Gluten is a protein found in wheat, rye, triticale, barley, and oats. In the case of wheat, gliadin has been isolated as the toxic fraction.

It is the gluten in the flour that helps bread and other baked goods bind and prevents crumbling. This feature has made gluten widely used in the production of many processed and packaged foods.

[7] The appellant told the Court that the foods that can be eaten are rice-based, corn flour-based or potato flour-based. He has to travel a considerable distance (about 20 kilometres) to get gluten-free pasta, which is expensive, costing about four times as much as pasta containing gluten. He cannot eat frozen foods, since they almost always contain preservatives that are derivatives of gluten. He almost never goes to restaurants and if he does, he has to bring his own bread, which must be kept in the freezer since it does not contain any preservatives. The bread is made locally, while the pasta is imported. In addition, in normal grocery stores he must spend a great deal of time reading each label on the foods he wishes to buy.

Argument and conclusions

[8] The appellant argued that because of the great difficulty he has in obtaining suitable foods, he requires an inordinate amount of time to feed himself, a basic activity of daily living.

[9] The agent for the respondent argued that the activity of feeding oneself does not include looking for suitable foods. On this point, she referred to the decision by Judge Bonner of this Court in Hagen v. The Queen, particularly the following passage:

I have no doubt whatever that celiac disease has caused the appellant considerable inconvenience. However, she is able to maintain good health by carefully adhering to her diet. I cannot find that in 1993 and 1994 she was unable to feed herself. Indeed the evidence is clear that she was quite able to do so. The appellant must be vigilant when shopping and take the trouble to locate food suitable for her diet but that inconvenience neither amounts to an inability to feed herself nor supports a conclusion that the appellant requires an inordinate amount of time to feed herself. I can find nothing in the language of the legislation and nothing in the legislative purpose suggesting an intention to encompass within the words “feeding oneself” activities such as shopping for suitable foods, baking bread and rolls and calling ahead to restaurants to arrange for adherence to diet. Having to adhere to a restricted diet is a long way from being unable to feed oneself. (Emphasis added)

[10] Subsection 118.4(1) of the Act reads as follows:

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. (Emphasis added.)

[11] Since Judge Bonner’s decision referred to above, the Federal Court of Appeal has rendered judgment in Johnston v. The Queen, [1998] F.C.J. No. 169 (Q.L.) (F.C.A.), in which it considered what may constitute an inordinate amount of time, particularly as regards feeding oneself, a basic activity of daily living. I will quote paragraphs 16 to 18 and 31 to 35:

[16] In order to benefit from the tax credit under s. 118.3, a taxpayer suffering from a severe and prolonged physical impairment has to establish that his ability to perform a basic activity of daily living is markedly restricted.

[17] The expression “markedly restricted” has been defined to refer to an individual’s inability, at all or substantially all of the time, even with therapy and the use of appropriate device [sic] and medication, to perform a basic activity of daily living. An individual’s ability is also deemed to be markedly restricted if he requires an inordinate amount of time to perform such activity.

[18] No definition has been given of what constitutes an inordinate amount of time in the performance of the basic activities of daily living. In my view, the expression “inordinate amount of time” refers to an excessive amount of time, that is to say one much longer than what is usually required by normal people. It requires a marked departure from normality.

. . .

[31] Counsel for the Respondent argued before us, and it was accepted by the learned Judge, that the notion of “feeding” refers to a person’s capacity to take food from a plate and bring it to his mouth. I strongly disagree. There is no doubt that a two-year-old child can take food from a plate and put it in his mouth, but there is also no doubt that nobody would assert that that child is able to feed himself. I agree with this statement of Bonner T.C.J. in M.R. Hodgin v. The Queen ([1995] E.T.C. 515):

I turn next to feeding oneself. That involves, in my view, something more than eating a meal prepared by another person. One cannot feed oneself unless one is capable of taking basic food stuffs in the form commonly available in a grocery store and cooking or otherwise preparing and setting out a meal. The test is feeding oneself, not simply eating a meal. The language of the legislation is clear in that respect. The requisite ability to feed oneself involves the ability to prepare a reasonable range of food and not just to prepare and set out snacks, junk foods or frozen dinners. Here the limitations on the movement of the Appellant’s hands required the assistance of her husband in meal preparation to a degree that supports a conclusion that the Appellant was incapable of feeding herself. [Emphasis added.]

[32] The notion of feeding, in my view, also involves the ability to prepare a meal which conforms to a medically prescribed diet and medication which maintains one’s state of health or prevents its deterioration.

[33] To limit the notion of feeding to the ability to eat a meal is to overlook the objective of the statute which, it bears repeating, is to financially assist those who, because of their disability, require assistance in fulfilling such a basic activity of daily living. To include the preparation of a reasonable meal in the notion of feeding is, on the contrary, fully consistent with such objective and the spirit of the disability credit. [Emphasis added.]

[34] In the present instance, the evidence is overwhelming that, except for operating a microwave to cook a potato, boiling tea and occasionally making a sandwich, the Applicant cannot prepare food generally, let alone food that is medically required by his state of health and medication, that he needs daily assistance for his meals and that on some days, up to 10 or 12 a month, he cannot even get up from his bed and go downstairs.

[35] In my view, the Applicant cannot feed himself within the meaning of the statute or at best requires an inordinate amount of time to perform that activity.

[12] In Hagen v. The Queen, referred to above, Judge Bonner expressed the view that difficulty in obtaining suitable foods is separate from the activity of feeding oneself. In Hodgin v. The Queen, to which the Federal Court of Appeal referred with approval in Johnston v. The Queen, supra, Judge Bonner expressed the view that the activity of feeding oneself involves not only putting food in one’s mouth but also the physical ability to prepare meals. Although Judge Bonner stated in Hagen that the activity of looking for food is separate from the activity of feeding oneself, I believe that he made that statement in a context in which adhering to a restricted diet was the key factor, not the difficulty of finding suitable foods. Moreover, he concluded the passage cited above by saying that having to adhere to a restricted diet is a long way from being unable to feed oneself.

[13] By referring to the Federal Court of Appeal’s decision in Johnston v. The Queen, I can see that the objective test that must be used to decide such cases is whether the problem the individual has is such that he or she normally requires assistance from another person to perform the basic activity or requires an inordinate amount of time to perform the activity in comparison with someone who does not have the same disability.

[14] Based on this reasoning, it seems to me that if the foods that a person could eat were so rare that the person had to spend an inordinate amount of time looking for them, it would have to be concluded that looking for food was not separate from the activity of feeding oneself. That is not the case here, however. The suitable foods are not so rare that the appellant can hardly find anything to eat. To a very large degree, he can find his food in supermarkets like other people do, although he must be careful to check the ingredients in prepared foods. He has to go farther away to obtain some foods, such as pasta. Because of that, and because of the care he must take in purchasing prepared products, he argued that he is different from other people. But to what extent? To an extent that strikes me as minimal. It seems to me that many individuals are concerned about the ingredients in prepared products and travel a few kilometres to obtain products they like, whether because of their freshness, taste or price. While it is true that going to restaurants is difficult, that is the case for anyone with a food allergy. As regards the actual activity of feeding oneself, the appellant did not claim that he takes longer to eat than anyone else. I therefore conclude that the appellant does not have a physical impairment the effects of which are such that he requires an inordinate amount of time to perform the activity of feeding himself.

[15]Accordingly, the appeal is dismissed.

Signed at Ottawa, Canada, this 22nd day of April 1998.

“Louise Lamarre Proulx”

J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 14th day of December 1998.

Kathryn Barnard, Revisor