96-2288(IT)I
BETWEEN:
GERALD JAMES CARMEN,
Appellant,
and
HER MAJESTY THE QUEEN,
Appeal heard on January 13, 1998, at Sudbury,
Ontario, by
the Honourable Judge D.G.H. Bowman
Appearances
For the
Appellant:
The Appellant himself
Counsel for the Respondent: Natalie
Goulard
JUDGMENT
The
appeal from the assessment made under the Income Tax Act
for the 1994 taxation year is allowed and the assessment is
referred back to the Minister of National Revenue for
reconsideration and reassessment to allow the appellant the
disability tax credit provided by section 118.3.
The
appellant is entitled to his costs, if any.
Signed at Ottawa, Canada, this 30th day of January 1998
J.T.C.C.
Date: 19980130
Docket: 96-2288(IT)I
BETWEEN:
GERALD JAMES CARMEN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Bowman, J.T.C.C.
[1] This is an appeal from an
assessment for 1994 whereby the Minister of National Revenue
refused to allow the appellant the disability tax credit provided
by section 118.3 of the Income Tax Act.
[2] The issue is whether in that year
Mr. Carmen had a severe and prolonged physical disability, the
effects of which were to markedly restrict his ability to perform
a basic activity of daily living.
[3] Mr. Carmen was involved in an
automobile accident in 1983. His left hand was amputated at the
wrist. It was surgically reattached. Complications developed and
further surgery was required. He still has his left hand, but for
all practical purposes it is useless. I suspect he might, with
the benefit of hindsight, have been better off with a prosthetic
device. The left hand can hold or grip nothing of any
significance and the mobility in the hand, wrist and fingers is
minimal.
[4] Mr. Carmen put in evidence a
letter from the surgeon who reattached his hand and with whom he
has continued to consult. I allowed the letter to be adduced
since the case was being heard under the informal procedure. (see
Ainsley v. The Queen, A-610-96 (May 26, 1997)). Following
the decision of the Federal Court of Appeal in Calwell v.
R., [1996] 1 C.T.C. 1 it is an error in law to inform a
taxpayer that the court will accord less weight to unsworn
testimony without explaining that a doctor may be subpoenaed.
Since that decision, the explanation of a taxpayer's rights with
respect to subpoenas accompanies the notice of hearing. As a
practical matter, in a disability tax credit case, it is a little
unrealistic to expect an appellant to subpoena a doctor in
Toronto to appear in Sudbury, and pay him or her up to $300 per
day plus travelling expenses.
[5] Dr. Manktelow's letter reads as
follows:
June 4, 1996
TO WHOM IT MAY CONCERN:
Re: Mr. Gerald Carmen
This letter is written to further clarify this patient's
medical condition and his subsequent disability. He sustained an
amputation of his left hand at the wrist in 1983 and this was
re-attached. There were some difficulties following the
re-attachment with infection and wound breakdown and he required
further surgery including some muscle and skin that was
transferred from his leg. Subsequently he has developed a range
of some motion of the fingers and he can use this for some
activities. Sensation is not good enough to make use of the hand
for activities which require knowing what you are touching.
Functionally this hand is virtually of no value to him and
should be recognized as being totally disabled with respect to
the left hand. In addition he is having increasing problems with
his right hand because of over use with weakening and discomfort
of the hand that effects him when he is trying to do the normal
functions of eating, dressing and other self-care.
Therefore I would rate his impairment as being severe with
respect to the basic activities of daily living and to be
permanent. I trust this is helpful to you.
[6] Physicians' opinions are useful
and may be an important factor in cases of this type, but they
are not determinative. Ultimately, the decision must be based
upon the court's appreciation of all of the evidence and, most
importantly in the majority of cases, on the court's observation
of the appellant and upon the viva voce testimony.
[7] In Lana Cornect Brennan v. The
Queen, 95-3174(IT)I, September 22, 1997, I held that the
parents of a four month old infant with only one hand were not
entitled in the child's first year of life to claim the credit
because at that age any child is incapable of performing any
activity of daily living, irrespective of any disability she
might have. I went on to say that as the child grew older the
entitlement to the credit would probably increase. The
observation was obiter dictum, but it happens to express
my view.
[8] Mr. Carmen submitted a long list
of things that he could not do or had difficulty doing with only
one hand. Many of them have nothing to do with the basic
activities of daily living listed in section 118.4 of the
Income Tax Act. So far as that section is concerned, the
real problem is with feeding and dressing himself. He testified
that he has difficulty feeding himself unless his wife cuts his
food up. He also has trouble dressing himself and needs to enlist
the aid of his wife. He cannot pull up zippers, do up buttons or
tie his shoes.
[9] One aspect of Mr. Carmen's
testimony caused me some difficulty. He stated that the effect of
having a virtually useless left hand has increased strain on his
right hand, which thereby became weaker. I find this very hard to
believe. I should have thought that the right hand would become
stronger to compensate for the loss of the left hand.
Nonetheless, I accept Mr. Carmen's testimony. It is supported by
the letter of Dr. Manktelow quoted above.
[10] I find that Mr. Carmen qualifies for
the disability tax credit on the basis either that he cannot
dress and feed himself or that he requires an inordinate amount
of time to do so.
[11] The appeal is therefore allowed and the
assessment is referred back to the Minister of National Revenue
for reconsideration and reassessment to allow the appellant the
disability tax credit provided by section 118.3.
[12] The appellant is entitled to his costs,
if any.
Signed at Ottawa, Canada, on this 30th day of January
1998.
J.T.C.C.
COURT FILE
NO.:
96-2288(IT)I
STYLE OF
CAUSE:
Gerald James Carmen and
Her Majesty The Queen
PLACE OF
HEARING:
Sudbury, Ontario
DATE OF
HEARING:
January 13, 1998
REASONS FOR JUDGMENT BY: D.G.H. Bowman
DATE OF
JUDGMENT:
January 30, 1998
APPEARANCES:
For the
Appellant:
The Appellant himself
Counsel for the Respondent: Natalie
Goulard
COUNSEL OF RECORD:
For the Appellant:
Name:
--
Firm:
--
For the
Respondent:
George Thomson
Deputy Attorney General of Canada
Ottawa, Canada
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