Date: 20020525
Docket:
2001-3428-IT-I
BETWEEN:
BLAIR
DIRK,
Appellant,
and
HER MAJESTY THE
QUEEN,
Respondent.
Reasonsfor
Judgment
Sarchuk J.
[1]
This is an appeal by Blair Dirk from a reassessment of his 1999
taxation year by virtue of which the Minister of National Revenue
(the Minister) denied the Appellant's claim for a disability
tax credit. The Minister's position is that the Appellant was
not entitled to the credit under subsections 118.3(1) and
118.4(1) of the Income Tax Act (the Act) because he
was not markedly restricted in his ability to perform a basic
activity of daily living.
Background
[2]
In 1985, when he was in his early 20s, the Appellant lost his
right arm and has been wearing a prosthesis since that time. It
was difficult for him to describe the problems encountered as a
result of his disability because he has learned to adapt and as
he observed: "sometimes it's kind of hard to picture the
things I have trouble with, just because I am so used to doing
them now". By way of example, he made reference to the
various things that had to be done in the course of preparing a
meal, the length of time it took and the problems he encountered
in performing such basic tasks as opening jars and cans, gripping
utensils and pots, cutting food and even something as simple as
spreading butter on toast. He explained that a process such as
opening a can requires him to grip an opener in his prosthesis.
However, "the grip isn't strong enough so sometimes it
doesn't ...".
Question:
It slips?
Answer:
Yeah, it slips and it makes - so you have to go around and
around it.
Question:
But you can get it off eventually?
Answer: Yeah, oh
yeah".
This is but one
example of a number of basic food preparation activities that
take the Appellant a frustratingly long time to perform. It is
understandable that he was unable to estimate how much longer it
took him to chop an onion, to prepare a chicken stir fry or to
peel a potato - all questions which seemed of great
importance to counsel for the Minister. Nonetheless, his
testimony made it quite apparent that on a comparative basis the
preparation of a simple meal took him a disproportionate amount
of time.
[3]
On the subject of dressing, counsel again asked the Appellant to
compare the length of time it takes him to dress with the time it
took him to do so 20 years ago prior to the loss of his arm. Not
surprisingly, he was unable to answer counsel's questions. On
the other hand, his testimony clearly established the simple fact
that dressing takes much more time. He described the difficult
time he has dealing with all fasteners, buttons, zippers, hooks,
tying shoelaces etc., most of which normally require the use of
both hands. With respect to zippers, he stated: "zippers are
a real pain because you have to sort of hold your ... and
pull it up, and the prosthesis can't really grab the little
zipper tab".
He tried different approaches but was unable to find one of use,
in good measure because he is not able to articulate the
prosthetic device close enough towards his body. He said: "I
can't reach my face, like sort of with the hook or close into
my body because of the type of prosthesis it is. So you know,
doing things close into my body with the prosthesis doesn't
really work. So you're basically then just
one-handed". The Appellant's problems are
compounded by one further factor which is that he had been
right-handed but is now forced to use his left hand for many
functions such as brushing his teeth. Even after 20 years he
still finds it difficult because "it's not my dominant
hand".
[4]
The problems he encounters on a daily basis are exacerbated by
the fact that he is not able to wear his prosthesis at all times.
This, he said, occurs when sores develop where the:
Stump fits in your socket,
and when that happens, then I have to take my arm off and then I
have a real problem doing all of these things. You know, it just
makes it probably, I don't know ten times harder than it does
with the prosthesis. This is not a rare occurrence happening
"more in the summertime when it's hot, because then you
perspire, and then it seems to aggravate it more.
The Appellant also
described having occasional bouts of "phantom pain"
which are "like an electrical shock that you feel. And when
that's occurring, you can't wear your prosthesis as
well".
[5]
For a number of years including the year under appeal, he was
self-employed, operating a courier/delivery service. In
this context, he made mention of the fact that to ensure that he
is able to use his prosthesis at work, he avoids using it "a
lot in order to be able to wear it all day, which makes the tasks
that I have to do harder, because you avoid using your
prosthesis". I took that to mean that to be certain that he
is able to carry out the activities associated with his
employment (which in addition to driving involves the lifting and
moving of the parcels and other material being delivered) he, of
necessity must limit the personal use of his
prosthesis.
[6]
Section 118.4 defines the nature of an impairment as
follows:
118.4(1)
For the purposes of subsection 6(16), sections 118.2 and 118.3
and this subsection,
(a)
...
(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)
...
In
Johnston v. The Queen,
the following comments were made by Letourneau J.A. with
respect to this subsection:
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.
The purpose of sections
118.3 and 118.4 is not to indemnify a person who suffers from a
severe and prolonged mental or physical impairment, but to
financially assist him or her in bearing the additional costs of
living and working generated by the impairment. As Bowman, T.C.J.
wrote in Radage v. R. at p. 2528:
The legislative intent
appears to be to provide a modest relief to persons who fall
within a relatively restricted category of markedly physically or
mentally impaired persons. The intent is neither to give the
credit to every one who suffers from a disability nor to erect a
hurdle that is impossible for virtually every disabled person to
surmount. It obviously recognizes that disabled persons need such
tax relief and it is intended to be of benefit to such
persons.
The learned Judge went on
to add, at p. 2529, and I agree with him:
If
the object of Parliament, which is to give to disabled persons a
measure of relief that will to some degree alleviate the
increased difficulties under which their impairment forces them
to live, is to be achieved the provisions must be given a humane
and compassionate construction.
Indeed, although the scope
of these provisions is limited in their application to severely
impaired persons, they must not be interpreted so restrictively
as to negate or compromise the legislative intent.
I am
satisfied that the evidence adduced in these appeals meets the
test set out in Johnston, supra. There is no question that
the Appellant's ability to perform the essential task of
dressing and the personal hygiene associated with it takes him an
inordinate amount of time on any reasonable comparison with
"normality". I reach the same conclusion with respect
to the amount of time required by the Appellant to prepare his
meals and feed himself. I also note that on those occasions when
he is not able to wear his prosthesis because of the
discomfort/pain, he would be severely restricted in his ability
to attend to these otherwise fairly simple tasks.
[7]
However, that is not the end of the matter since in order to
qualify a properly completed Disability Tax Credit Certificate
must be provided. In this case, the Appellant filed as an exhibit
the Certificate partly completed by Dr. M. Gordon which
had been submitted to the Minister.
With respect to paragraph 6, Feeding and Dressing, the
certificate poses two questions: "Is you patient able to
feed himself, using an aid if necessary"? and "Is you
patient able to dress himself, using an aid if necessary"?
to which Dr. Gordon responded "yes" and "see
below". With respect to question 9: "Is the impairment
severe enough to restrict the basic activity(ies) of daily living
identified above all, or almost all of the time, even with
therapy and the use of appropriate aids and medication"? Dr.
Gordon responded:
does experience
restriction, takes longer than average for grooming and dressing
? bad enough to qualify - need you to decide,
but failed to place
any checkmarks in the appropriate box.
[8]
According to the Appellant, the doctor:
"Told me that as he
was filling this out he really didn't want to, because, he
said, as he understands it, you have to be blind, in a
wheelchair, or confined to bed in order to qualify. ... So
he fills out this form for me and leaves, you know, a box blank
for Revenue Canada to decide, which ends up being a negative
against me, because he didn't fill it out, whether he knows
I'm markedly restricted or not".
I appreciate that
Dr. Gordon may have found it difficult to complete the necessary
form. However, his refusal to answer the question in the form
required precluded the Appellant from having his claim decided on
its merits. No one will dispute that there are problems inherent
in the language used by the legislators in these questions but,
in my view, that is no excuse for the doctor's conduct. It
was his responsibility to ask sufficient questions of the patient
to determine whether or not the questions were to be answered yes
or no. If at the conclusion of his examination he was unwilling
to do so, he should have advised the patient to that effect and
permitted him to seek another opinion.
[9]
In two recent cases, The Attorney General of Canada v. Joan
MacIsaac and The Attorney General of Canada v. Kenneth G.
Morrison,
the Federal Court of Appeal had occasion to consider what is
required in the context of the T2201 forms which are to be
completed by the claimant's physicians and made the following
comments:
... Section
118.3(1)(a.2) of the Income Tax Act is not merely
directory. It is mandatory. Simply put, there must be a
certificate by the doctor that the individual suffers impairments
in the language of these subsections. This Court held to the same
effect in Partanen v. Canada, [1999] F.C.J. 751 and we
feel bound by this decision.
It
is not obvious that putting the questions as they are in this
form results in a thorough consideration by the doctor of the
questions confronting him. Putting checks in boxes is perhaps not
the best way of eliciting a just result. Nevertheless, the
Act requires such certificates as a prerequisite to
obtaining disability tax credits.
[10]
In view of the failure of Dr. Gordon to properly complete the
Disability Tax Credit Certificate, I have no alternative but to
disallow the Appellant's appeal.
Signed at Ottawa, Canada, this 24th day of
May, 2002.
"A.A. Sarchuk"
J.T.C.C.
COURT FILE
NO.:
2001-3428(IT)I
STYLE OF
CAUSE:
Blair Dirk and Her Majesty the Queen
PLACE OF
HEARING:
Vancouver, British Columbia
DATE OF
HEARING:
March 8, 2002
REASONS FOR JUDGMENT
BY: The Honourable Judge A.A.
Sarchuk
DATE OF
JUDGMENT:
May 24, 2002
APPEARANCES:
For the
Appellant:
The Appellant himself
Counsel for the
Respondent:
Nadine Taylor
COUNSEL OF RECORD:
For the
Appellant:
Name:
N/A
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-3428(IT)I
BETWEEN:
BLAIR DIRK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on March 8, 2002, at Vancouver,
British Columbia, by
the Honourable Judge A.A. Sarchuk
Appearances
For the
Appellant:
The Appellant himself
Counsel for the Respondent:
Nadine Taylor
JUDGMENT
The appeal from the assessment of tax made under the Income
Tax Act for the 1999 taxation year is dismissed.
Signed at Ottawa, Canada,
this 24th day of May, 2002.
J.T.C.C.
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