97-1141(IT)I
BETWEEN:
VAL DAWSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on March 13, 1998 at Saskatoon,
Saskatchewan, by
the Honourable Judge R.D. Bell
Appearances
Agent for the
Appellant:
Douglas Dawson
Counsel for the
Respondent:
Marvin Luther
JUDGMENT
The
purported appeal for the 1994 taxation year is quashed.
The
appeal from the assessment made under the Income Tax Act
for the 1995 taxation year is allowed and the assessment is
referred back to the Minister of National Revenue for
reconsideration and reassessment in accordance with the attached
Reasons for Judgment.
Signed at Ottawa, Canada this 6th day of May, 1998.
J.T.C.C.
Date: 19980506
Docket: 97-1141(IT)I
BETWEEN:
VAL DAWSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Bell, J.T.C.C.
ISSUE:
[1] The issue is whether the Appellant
is entitled to a disability tax credit within the meaning of
sections 118.3 and 118.4 of the Income Tax Act
("Act").
FACTS:
[2] The Appellant suffers from
multiple sclerosis ("MS"). She was not well enough to
be in Court and was represented by her husband, Douglas Dawson
("Dawson"), who lived with and took care of her during
the 1994 and 1995 taxation years in respect of which appeal
documents were filed.
[3] Dawson testified that his wife,
the Appellant, was diagnosed in March, 1989 with multiple
sclerosis after suffering numbness in her legs, loss of feeling
in her hands, vision problems and lumbar puncture. He said that
her type is remitting and relapsing and that the bouts of
severity range in degrees. He stated that the disease affects
different parts of the body. He said during an
"exacerbation" she had more than normal problems
including optic difficulties, no hand feeling, leg numbness and
continuous fatigue. He said that in 1994 she had five major
exacerbations and did not regain all toe feeling and feeling in
her finger ends. He described a number of different treatments
that had been tried and stated that MS is an incurable
disease.
[4] He said that in 1992 her doctor
convinced her to quit work because of the progression of the
disease.
[5] DISABILITY TAX CREDIT CERTIFICATE
dated February 27, 1996 signed by her medical doctor stated that
her impairment lasted or was expected to last for a continuous
period of at least 12 months. It also stated that her impairment
was severe enough to restrict "the basic activity of daily
living identified above" all or almost all the time.
[6] Her husband stated that she did
not file an income tax return for 1994 but that he and his wife
had filed "joint returns". He seemed uncertain as to
exactly what was filed but stated that they took their documents
to H & R Block.
[7] Dawson said that his wife was
hospitalized in March, 1995 and given pulse therapy. He stated
that she had problems remembering when fatigued and when
experiencing exacerbations. He stated that walking was impossible
for the Appellant during an exacerbation, it being difficult at
the best of times. He stated that elimination was a constant
problem for the Appellant and that she had to take precautions
every day. Her bowel and bladder functions were, to some
appreciable degree, uncontrollable. He said that his wife could
only do up large buttons and had no feeling or ability to deal
with smaller ones. He stated that over 90 percent of the time the
Appellant had difficulties with one or more of the activities
described in section 118.4. These included ability to walk,
ability to remember, elimination difficulties, et cetera. Section
118.3 of the Act provides that where an individual has a
severe and prolonged mental or physical impairment resulting in a
marked restriction in the ability to perform a basic activity of
daily living, a tax credit is available. Section 118.4 states,
for the purposes of section 118.3, an impairment is prolonged
where it has lasted at least 12 months. It also provides that an
individual's ability to perform a basic activity of daily
living is markedly restricted only where all or substantially all
of the time the individual is unable
... to perform a basic activity of daily living.
It further provides that a basic activity of daily living
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;
ANALYSIS AND CONCLUSION:
[8] The evidence, which I wholly
accept, given by the Appellant's husband, persuades me that
the Appellant was, during the 1995 taxation year, unable to
perform "a basic activity of daily living". The
Appellant was and is a very sick person. Her caring husband
testified that she had difficulties remembering, difficulties
dressing herself, constant difficulties with eliminating
functions and difficulties with walking. He stated that these
conditions were present more than 90 percent of the
time.
[9] Section 118.4 does not require
that an individual be unable to perform one of the basic
activities of daily living. It uses the term,
unable ... to perform a basic activity of daily
living.
(emphasis added)
[10] As required by section 118.3 a medical
doctor certified in prescribed form that the Appellant had a
severe and prolonged mental or physical impairment the effects of
which markedly restricted her ability to perform
the basic activity of daily living identified above.
[11] The Appellant's appeal for 1995 is
allowed. With respect to 1994, no return was filed by the
Appellant and no notice of assessment was issued. Accordingly,
the Appellant's purported appeal for that year is
quashed.
Signed at Ottawa, Canada this 6th day of May, 1998.
J.T.C.C.
COURT FILE
NO.:
97-1141(IT)I
STYLE OF
CAUSE:
Val Dawson v. The Queen
PLACE OF
HEARING:
Saskatoon, Saskatchewan
DATE OF
HEARING:
March 13, 1998
REASONS FOR JUDGMENT BY: The Honourable R.D.
Bell
DATE OF
JUDGMENT:
May 6, 1998
APPEARANCES:
Agent for the
Appellant:
Douglas Dawson
Counsel for the Respondent: Marvin
Luther
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent:
George Thomson
Deputy Attorney General of Canada
Ottawa, Canada
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