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Citation: 2005TCC543
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Date: 20050818
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Docket: 2004-3191(IT)I
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BETWEEN:
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DANY IMBEAULT,
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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 JUDGMENT
(Decision rendered orally from the bench
at Montréal, Quebec on March 18, 2005)
Lamarre J.
[1] This is an appeal from an assessment concerning the 2002 taxation year. In that assessment, the Minister of National Revenue ("the Minister") denied the Appellant a tax credit for severe and prolonged mental or physical impairment under sections 118.3 and 118.4 of the Income Tax Act ("the Act").
[2] It should be noted that the Appellant has also claimed this credit for several years prior to 2002, but since no notice of objection had been filed with respect to those years, I am unable to reopen them today. Consequently, the credit cannot be claimed for those prior years.
[3] The Minister denied the credit for the year 2002 because Dr. Johanne Morel, who completed Form T2201, the certificate required by the Act in order to be entitled to the disability tax credit, explained that the Appellant has suffered from blindness in his left eye and loss of hearing in his left ear since birth. These conditions are the sequelae of a traumatic birth. Based on such certificates completed by Dr. Morel, the Minister determined that the Appellant's ability to perform basic activities of daily living, namely seeing, walking, hearing, feeding oneself, dressing oneself, perceiving, thinking, remembering and eliminating (bladder or bowel functions) were not markedly restricted.
[4] I saw Mr. Imbeault testify before me. He explained the disabilities that affect his left eye and ear, as well as his left leg and arm, which are shorter. His disability is permanent and irreversible. He says that he has always had trouble concentrating, that this required him to devote more time to school work when he was young, and that he must take notes at work to prevent him from forgetting what he must do during the day. He cannot read large books, but he reads newspapers. He cannot remember certain milestones in his life, such as the birth of his children. Because he is half deaf, he has trouble communicating in noisy surroundings and says that he must ask people to repeat themselves several times. When he is in a group, he must either face his conversation partners directly, or have them talk into his good ear so that he can understand what is being said.
[5] The blindness in his left eye causes him problems with perception. For example, he must assess distances with greater care when driving. However, the vision in his right eye is very good, subject to a slight myopia. Since he does not see out of both eyes, he cannot see in three dimensions. He cannot touch anything that is moving, and this limits his physical exercise to golf.
[6] The Appellant is employed as a production supervisor in the food industry. Although he functions well in his working environment, there are some incidents that occur which are attributable to the fact that he is half deaf. For example, he does not hear the communications system when he is wearing a hard hat at work. He says that he never got a job for which he was asked to undergo medical exams. His current job required no medical exam and his boss was only recently told about his disability.
[7] Dr. Morel, who completed the medical certificate (Form T2201), was the Appellant's general practitioner for seven years. She did not assess his blindness or deafness. She completed the certificate based on his medical record. The Appellant never spoke with Dr. Morel about his memory and perception problems, and there is nothing on the subject in the medical certificate. The Appellant was not careful on this point. His greatest concerns appear to have been vision and hearing.
[8] The Appellant's spouse also testified. She has been with him for four years. She says that he has trouble judging distances and depth and that he has perception, concentration and memory problems. She says that he can forget day-to-day matters or emotional matters. He can also have trouble picking up items, assessing distances while driving, and putting a key in a lock if he is not concentrating.
[9] Pursuant to sections 118.3 and 118.4 of the Act, the Appellant will be entitled to the credit for mental or physical impairment if he has a severe and prolonged mental or physical impairment and the effects of the impairment are such that the his ability to perform a basic activity of daily living is markedly restricted. This must be certified in prescribed form (Form 2201) by a competent person (such as a medical doctor).
[10] Under the Act, an individual's ability to perform a basic activity of daily living is markedly restricted only where all or substantially all of the time, he is blind or unable (or requires an inordinate amount of time) to perform a basic activity of daily living. In the Act, basic activities of daily living include, among other things:
(1) perceiving, thinking and remembering; and
(2) hearing so as to understand, in a quiet setting, another person familiar with the individual.
[11] The Appellant's representatives noted that the Act previously referred to persons who are "totally blind" and that the wording was changed in 1986 to read "all or substantially all of the time . . . the individual is blind . . . ." They submit that Parliament intended total blindness to mean the complete absence of eyesight, whereas the amended wording of the Act, which employs the word "blind", can include blindness in just one eye.
[12] In my opinion, the word "blind" has the same meaning as "totally blind". A person who is blind is someone who has lost his vision. If the person sees out of one eye, the person cannot be said to have lost his sense of vision. Thus, it cannot be said that such a person is blind. The term "blindness" also means having no vision. The fact that the wording of the Act once referred to total blindness is not, in my view, a factor that calls for a different interpretation of the word "blind" in the new wording of the Act. If Parliament had intended to cover blindness in one eye, it would have specified this clearly, which it has not done. It is therefore my opinion that in order to be entitled to the credit, a person must be blind in both eyes in the sense that the person has no vision. This is certainly not the Appellant's case because he sees very well out of his right eye.
[13] As for the Appellant's ability to hear, the Act clearly stipulates that the credit is only granted if the disabled individual shows that he or she cannot hear so as to understand in a quiet setting, another person familiar with the individual. The Appellant's agents submitted that he gives answers that are out of context and make no sense, that he has trouble understanding sentences that are too long, that he has people repeat themselves, and that he must concentrate in order to be able to answer in a group setting.
[14] I wish to emphasize at this point that the Act contemplates the ability (without requiring an inordinate amount of time all or substantially all of the time) to hear so as to understand, in a quiet setting, another person familiar with the individual. The Act does not refer to the ability to hear in a group setting or a noisy place. The Appellant appeared very lively to me in Court and he answered all the questions very well, whether they were asked by his agent, by counsel for the Respondent, or even by me. He heard me well enough from his relatively distant seat in the courtroom to answer that he could be reached on his cell phone. I found his diction very good and I found that his disability did not appear to require him to devote an inordinate amount of time to understanding and answering questions. It is true that the atmosphere in the courtroom is conducive to calm and concentration, but that is exactly the test required by the Act. In my opinion, the Appellant showed that he can hear very well in a quiet place without requiring an inordinate amount of time and without having people repeat themselves.
[15] With regard to his ability to perceive, think and remember, I agree with counsel for the Respondent that it has not been assessed by a medical practitioner or by a professional in this particular field, and that this is a condition imposed by the Act. Indeed, to be entitled to the credit, the Appellant must produce a certificate attesting to such an impairment, which we do not have. It may be appropriate for the Appellant to have himself assessed in this regard for future years. Right now, I cannot answer this question without a professional opinion. I must say that I found the Appellant rather alert and thoughtful considering his disabilities, which is entirely to his credit, and I congratulate him for this. However, I myself am not a specialist in the field, and perhaps the Appellant could qualify for the credit based on the perceiving, thinking and remembering aspect by obtaining an assessment from a person who is competent, according to the Act.
[16] In light of the foregoing, I must confirm the Minister's decision to deny the tax credit for mental or physical impairment because the Appellant does not, in my view, fulfil the criteria required by the Act to qualify for such a credit for the year 2002.
[17] The appeal from the assessment made in respect of the 2002 taxation year is therefore dismissed.
[18] The appeals concerning the prior years are dismissed on the ground of nullity because no notice of objection was filed in respect of those years.
Signed at Ottawa, Canada, this 18th day of August 2005.
Lamarre J.
Translation certified true
on this 23rd day of March, 2006.
Garth McLeod, Translator
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