Date:
20021212
Docket:
2001-4343-IT-I
BETWEEN:
REBECCA J.
NOWELL,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Reasons
for Judgment
Little,
J.
A.
FACTS
[1]
The Appellant was born in Regina, Saskatchewan on the 25th day of
June 1965.
[2]
On the 20th day of September 1996 the Appellant was admitted to
the Rockyview Hospital in Calgary. After the Appellant suffered a
grand-mal seizure she was placed on a full life support
system.
[3]
The Appellant was in a coma for approximately eight hours and she
gradually returned to a conscious state. However she suffered
from frequent seizures.
[4]
After a number of tests the Appellant was diagnosed as suffering
from viral encephalitis.
[5]
The Appellant was hospitalized in Calgary, Alberta until December
1996 and she was then moved to her parents' home in Regina,
Saskatchewan.
[6]
The Appellant has had many medical examinations and she has been
diagnosed as being unfit to work.
[7]
When the Appellant filed her income tax return for the 1999
taxation year she claimed a medical disability tax
credit.
[8]
Officials of the Canada Customs and Revenue Agency (the
"CCRA") advised the Appellant that they have determined
that the Appellant's claim for the disability tax credit does
not meet the eligibility criteria. The letter from the CCRA of
April 5, 2001 reads as follows:
Our
medical advisors have reviewed your claim for the disability
amount and it has been determined that it does not meet the
eligibility criteria as you are able to perform the basic
activities of daily living without a significant amount of
assistance. Therefore, we cannot allow the claim.
[9]
The Appellant's 1999 taxation year was reassessed to disallow
the claim for the disability tax credit.
B.
ISSUE
[10] Is the
Appellant entitled to claim the disability tax credit as provided
for in section 118.3 of the Income Tax Act (the
"Act").
C.
ANALYSIS
[11] Mr. Robert
Nowell, father of the Appellant, represented the Appellant during
the appeal. Mr. Nowell filed a number of documents to provide an
explanation of the medical problems suffered by the
Appellant.
[12] In a
Neuropsychological Evaluation dated June 18, 1997 (Exhibit
A-2) Dr. Timothy H. Landry stated at page 2 as
follows:
Ms. Nowell
reported that since her admission to hospital with a diagnosis of
Herpes Simplex Encephalitis she has experienced marked
difficulties with judgment, anger/irritability, mood swings,
mental confusion and boredom. She reported moderate problems with
depression, fatigue and nightmares. She also reported mild to
very mild problems with attention difficulties, balance
difficulties, expressing thoughts, reading/writing difficulties,
walking difficulties, seizures, sleep difficulties, physical
weakness, finding her way around, arithmetic difficulties, social
difficulties and general overall physical weakness.
[13] In a
Disability Tax Credit Certificate completed by
Dr. Luis A. Salgado on April 7, 1997 (Exhibit
A-5) Dr. Salgado was asked to describe the Appellant's
restrictions. Dr. Salgado said:
"herpes encephalitis - Sept. 26 96
complicated with seizures"
[14] In the
Certificate Dr. Salgado was asked to answer the following
questions:
4. Is your
patient able to think, perceive and remember, using medications
or therapy if necessary?
(For
example, can manage personal affairs or do personal care without
supervision.)
Dr. Salgado
answered NO.
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 appropriate aids, devices, medication or
therapy?
Dr. Salgado
answered YES.
[15] In the
Disability Tax Credit Certificate completed by
Dr. Mary Anne Lee. a Neurologist at the Foothills
Hospital in Calgary on April 20, 1998 (Exhibit A-6),
Dr. Lee was asked to answer the following
questions:
4.
Mental Functions
Is your
patient able to think, perceive, and remember, using medication
or therapy if necessary?
(For
example, can he or she manage personal affairs or do personal
care without supervision?)
Dr. Lee answered NO.
9.
Is the impairment severe enough to restrict the basic activity of
daily living identified above all, or almost all the time, even
with therapy and the use of appropriate aids and
medication?
Dr. Lee
answered YES.
[16] Dr. Lee and
Dr. Arthur of Foothills Hospital completed a similar Disability
Certificate on February 10, 1999 (Exhibit A-8).
[17] Dr. Lee
signed a further Disability Tax Credit Certificate on
March 30, 2000 (Exhibit A-9). In this Certificate Dr. Lee
answered NO to the question regarding Mental Functions and she
added the following comment with respect to the
Appellant:
Has severe short term memory impairment.
[18] By letter
dated June 27, 2000 (Exhibit A-10) D. Murash of the CCRA wrote to
Dr. Lee. The letter from Mr. Murash was a form letter and
Dr. Lee was asked to complete a number of questions. (I have
selected several of the questions and answers).
10.
Was your patient's condition or impairment controlled with
medication or therapy?
Answer - Yes.
Please explain.
(Dr. Lee) Seizures controlled but medications don't
help her memory and, if anything, may worsen it.
11.
For the year 1999, what percentage of time was your patient
unable to think, perceive and remember, even with the use of
medication or therapy?
(Dr. Lee) 100% of the time she has a severe memory
disturbance.
13.
Do you expect the severity of your patient's functional
limitations will change?
(Dr. Lee) NO.
Please
explain.
(Dr. Lee)
Her memory will never recover.
14.
Please provide all pertinent medical information, if possible,
other comments.
(Dr. Lee) This woman's neurological disorder is permanent and
I would be very surprised to see any significant change in the
future.
[19] In a
further Disability Tax Credit Certificate dated January 26,
2001 (Exhibit A-15) Dr. Lee was asked whether the Appellant
can perceive, think and remember. Dr. Lee answered NO. In
the Certificate Dr. Lee made the following comment concerning the
Appellant:
This woman
suffered from herpes encephalitis and has been left with a
permanent amnesic syndrome and a seizure disorder. She is not
capable of gainful employment.
[20] During the
hearing of the appeal I was advised that Dr. Lee, the
Appellant's Neurologist, died in March 2001. After
Dr. Lee died the Appellant consulted
Dr. Alexander Hanson, a Neurologist at Foothills
Hospital. In a Disability Tax Credit Certificate dated April 16,
2002 (Exhibit A-25) Dr. Hanson made statements similar to
the statements made by Dr. Lee. In particular Dr. Hanson was
asked the following question:
4.
Mental Functions
Is your
patient able to think, perceive and remember, using medication or
therapy if necessary? (For example, can she manage personal
affairs or do personal care without supervision?)
Dr. Hanson
answered NO.
[21] In this
situation I recognize the difficulties that the Appellant will
have for the rest of her life. I also recognize the severe
emotional and financial problems that her condition causes her
parents and her family. Based on the evidence presented to me
and, in particular the Disability Tax Credit Certificates signed
by Dr. Salgado, Dr. Mary Anne Lee and Dr.
Hanson, I have concluded that the Appellant's intellectual
limitations are severe enough to justify the disability tax
credit.
[22] The appeal
from the assessment issued for the 1999 taxation year is allowed,
without costs, and the assessment is referred back to the
Minister of National Revenue for reconsideration and reassessment
to allow the Appellant the disability tax credit under section
118.3 of the Act.
Signed at
Vancouver, British Columbia, this 12th day of December
2002.
J.T.C.C.
COURT FILE
NO.:
2001-4343(IT)I
STYLE OF
CAUSE:
Rebecca J. Nowell and
Her Majesty the Queen
PLACE OF
HEARING:
Regina, Saskatchewan
DATE OF
HEARING:
November 18, 2002
REASONS FOR
JUDGMENT BY: The Honourable Judge L.M.
Little
DATE OF
JUDGMENT:
December 12, 2002
APPEARANCES:
Agent for
the
Appellant:
Barrie Nowell
Counsel for
the
Respondent:
Anne Jinnouchi
COUNSEL OF
RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-4343(IT)I
BETWEEN:
REBECCA J.
NOWELL,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Appeal heard
on November 18, 2002, at Regina, Saskatchewan, by
the
Honourable Judge L.M. Little
Appearances
Agent for
the
Appellant:
Barrie Nowell
Counsel for
the
Respondent:
Anne Jinnouchi
JUDGMENT
The appeal
from the assessment made under the Income Tax Act for the
1999 taxation year is allowed, without costs, and the assessment
is referred back to the Minister of National Revenue for
reconsideration and reassessment to allow the Appellant the
disability tax credit under section 118.3 of the
Act.
Signed at
Vancouver, British Columbia, this 12th day of December
2002.
J.T.C.C.
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