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Citation: 2006TCC543
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Date: 20061121
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Docket: 2005-4475(IT)I
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BETWEEN:
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SYLVAIN MARCEAU,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
[OFFICIAL
ENGLISH TRANSLATION]
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REASONS FOR AMENDED JUDGMENT
Tardif J.
[1] This
is an appeal under the Income Tax Act related to a notice of
reassessment for the 2004 taxation year.
[2] The issue is whether the Appellant was entitled, in computing his
federal income tax for the year in question, to the transfer of the unused
income tax credit of $1,643 ($10,270 x 16%) for severe and prolonged
physical impairment in respect of his daughter, who was then seven years of
age.
[3] The
Appellant is claiming the disability tax credit. The person with the physical
impairment is the Appellant's minor child. The Appellant is claiming the
disability tax credit in respect of his daughter, who suffers from a very
severe food allergy problem, which, according to the Appellant and his wife,
consists of more than 60 different allergies.
[4] The
Appellant and his spouse explained the numerous problems that their daughter's
medical condition caused them. Among other things, the Appellant explained that
meal preparations took several hours. He also stated that he and his spouse had
to devote many hours to ensuring that their child had the appropriate
supervision and to provide her with the moral and psychological support that
she needed in light of her health problems.
[5] At
the age of seven, her living conditions were so unusual that she had few or no
friends. Her health problems isolated her. The Appellant and his wife have
another child with another disability.
[6] In
my opinion, it is no exaggeration to acknowledge that, in the light of the
evidence, the parents of this child devoted most of their available time to
their children's well-being.
[7] Indeed,
the Appellant's wife said that she did not work outside the home; she was
almost entirely devoted to the upbringing and care of her children, and this
was so trying on her own health that she suffered from what she called
burnouts.
[8] The
mother described quite well the gravity of their daughter's medical problem in
Exhibit A‑1, her letter of July 11, 2005, where she stated:
[TRANSLATION]
. . .
I will try to prove to you, in
writing, that I must devote an enormous time to the preparation of my
daughter's meals.
First of all, I must be very
creative, so I take special recipe books, look at them, read them, examine the
ingredients and use them as a basis to prepare her meals. The recipes are just
a starting point because . . . is always allergic to one or more ingredients in
the recipe. Thus, I must be constantly creative, and this requires an enormous
amount of time and energy. In fact, I often have to create a recipe in my head.
Sometimes I have to throw it all out, and at other times, it works.
The next step for me is to ensure
that everything is clean: utensils, work surfaces, etc. I must use a clean
utensil for each ingredient. If one ingredient touches another one that she
can't eat, I have to start everything all over again. (For example, in the
fridge, there are several ingredients to which . . . is allergic but which we
can't remove because Alexandre eats them, or we do.) We try to be very vigilant
with respect to the fridge so that no ingredients contaminate [her] food. We
try to set aside a specific area of the fridge for her, but it is difficult to
keep things from coming into contact with each other. I must also ensure that
no one contaminate foods like mustard with a utensil. In addition, I must keep
an eye on things to make sure that there are no splashes from one pot or pan to
another, because this would force me to throw the food out due to contamination
by an ingredient to which she is allergic.
And preparing food elsewhere is out
of the question, because I must absolutely bring all the ingredients and wash
each utensil and bowl before cooking. Indeed, she cannot dine in any restaurant
whatsoever unless she brings her own lunch, and the table and other surfaces
must be very clean. She must sit somewhat back from the table or at the
very end of it. At home, she has her own seat at the table.
Lastly, for her own protection, I
must constantly ensure that . . . does not put her fingers in her mouth. I must
also check that people have washed their hands and ask them to wash their hands
when they
come into our home as well as before and after they eat or touch something
dangerous to her (e.g. an ice cream cone.) All of this is emotionally draining,
and, as you know, it takes me a great deal of time.
[Name of child
intentionally omitted.]
. . .
[9] The
child did not testify; it was unnecessary for her to do so, because it is obvious
to me that a child of that age is not mature enough to make appropriate
decisions about what she can and cannot eat.
[10] Even assuming that this young girl is more reasonable and wiser than
other children her age, the fact remains that it would be unreasonable to
believe that a seven-year-old could always make the right decisions regarding
her food intake.
[11] It is not easy, even for adults, to understand the jargon found on
food ingredient lists; in fact, ingredient labels on consumer food product
packages are often incomplete.
[12] A child who is allergic to only one or two ingredients might
conceivably be able to monitor her own diet. However, where a seven-year-old
child suffers from roughly 60 allergies, I think that it is unrealistic to
expect her to feed herself without the essential and constant assistance of an
adult — in this instance, her parents.
[13] The Respondent submits that people with severe dietary restrictions
are no longer eligible for the disability tax credit and that the act of
feeding oneself does not include activities related to the selection, research,
preparation and cooking of foods.
[14] In my view, the important aspect of this case is not so much the time
that the mother must devote to choosing and preparing the food and the meals as
the disabled person's inability to do so.
[15] Sections 118.3 and 118.4 of the Income Tax Act read as follows:
118.3. (1) Where
(a) an
individual has a severe and prolonged mental or physical impairment,
(a.1)
the effects of the impairment are such that the individual's ability to perform
a basic activity of daily living is markedly restricted or would be markedly
restricted but for therapy that
(i) is essential to sustain a vital function of the individual,
(ii) is required to be administered at least three times each week for a
total duration averaging not less than 14 hours a week, and
(iii) cannot reasonably be expected to be of significant benefit to
persons who are not so impaired,
(a.2) in the case of
(i) a sight impairment, a medical doctor or an optometrist,
(i.1) a speech impairment, a medical doctor or a speech-language
pathologist,
(ii) a hearing impairment, a medical doctor or an audiologist,
(iii) an impairment with respect to an individual's ability in feeding or
dressing themself, or in walking, a medical doctor or an occupational
therapist,
(iv) an impairment with respect to an individual's ability in perceiving,
thinking and remembering, a medical doctor or a psychologist, and
(v) an impairment not referred to in any of subparagraphs (i) to (iv), a
medical doctor
has
certified in prescribed form that the impairment is a severe and prolonged
mental or physical impairment the effects of which are such that the
individual's ability to perform a basic activity of daily living is markedly
restricted or would be markedly restricted but for therapy referred to in
paragraph (a.1),
(b)
the individual has filed for a taxation year with the Minister the certificate
described in paragraph 118.3(1)(a.2), and
(c)
no amount in respect of remuneration for an attendant or care in a nursing
home, in respect of the individual, is included in calculating a deduction
under section 118.2 (otherwise than because of paragraph 118.2(2)(b.1))
for the year by the individual or by any other person,
there
may be deducted in computing the individual's tax payable under this Part for
the year the amount determined by the formula
. . .
118.4. (1) 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 oneself or 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;
(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; and
(e) feeding oneself does not include
(i) any of the activities of identifying, finding, shopping for or
otherwise procuring food, or
(ii) the activity of preparing food to the extent that the time associated
with the activity would not have been necessary in the absence of a dietary
restriction or regime; and
(f) dressing oneself does not include any of the activities of
identifying, finding, shopping for or otherwise procuring clothing.
[16] This subject has generated a wealth of case law. I have paid special
attention to the decision of
the Honourable Justice Lamarre Proulx in Nantel v. R.,
[2000] T.C.J. No. 345, where she referred to a portion from the
decision of the Federal Court of Appeal in Johnston v. R., [1998]
2 C.T.C. 262 (F.C.A.), at paragraphs 17, 18, 21, 32 and 33, where this
concept was in issue:
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[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 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.
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[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.
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. . .
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[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):
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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 not in
original.]
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[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.
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[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.
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[17] The Honourable Justice Lamarre Proulx, for her
part, wrote the following at paragraphs 16, 17 and 18 of her decision:
16
According to this decision, a person's ability is markedly restricted if the
person requires an inordinate amount of time to perform a basic activity of
living. The phrase "inordinate amount of time" refers to a much
longer time than is normal. The notion of feeding oneself involves the ability
to prepare a meal that conforms to the diet required by the person's condition.
The activity of feeding oneself includes meal preparation.
17
When it comes to the activity of feeding oneself, it is not just the act of putting
food in one's mouth that must be considered. Looking for and preparing food
must be as well. If these latter two activities have to be performed by someone
other than the person with the impairment, that person's time must be taken
into account in assessing whether it takes an inordinate amount of time to
perform a basic activity of living. As regards celiac disease, I have not found
that a person suffering therefrom requires very much more time for feeding
himself or herself than is required by normal people. In the instant case,
however, I feel that the time spent looking for and preparing food greatly
exceeds the time usually spent by normal people on those activities.
18 It
is impossible not to consider the rare food allergies of the appellant's
daughters to be a severe and prolonged impairment and not to find that much
more time than usual is required to overcome that impairment and remain
autonomous. The description given by Ms. Gareau shows that she currently
requires an inordinate amount of time--in comparison with what is normal--to
prepare the food required by her daughters, as do her daughters themselves. If
these problems diminish in the future as a result of medical discoveries that
are to be desired, so much the better. However, given what these individuals
currently have to do when it comes to eating, there is no doubt that they
require more time than is normal to look for and prepare their food.
[18] While the conditions of the Act are unambiguous, and, above all, very
strict, I find that the physical disability of the child in this case was
severe, and that it limited her daily activities markedly, continuously and on
a prolonged basis in 2004.
[19] Once the child reaches a sufficient stage of maturity and wisdom, and,
above all, becomes reasonably able to say no and to discipline herself and to
feed herself in keeping with her countless dietary restrictions, the situation
with respect to the credit in issue will eventually change.
[20] For all these reasons, I allow the appeal.
Signed at Ottawa, Canada, this 21st
day of November 2006.
Tardif
J.
Certified true
translation
François Brunet,
LLB, BCL
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