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Citation: 2003TCC942
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Date: 20031230
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Docket: 2003-863(IT)I
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BETWEEN:
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DENISE RAE NESBITT,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
Sheridan, J.
ISSUE
[1] The question is whether the
medical condition afflicting the Appellant, Denise Nesbitt,
impairs her ability to perceive, think and remember to the extent
that she is entitled to claim a disability tax credit under
s.118.4 of the Income Tax Act (the
"Act").
FACTS
[2] Denise Nesbitt is a wife and the
mother of two little girls. In 1992, a motor vehicle accident
left her in a state of chronic pain for which she has yet to find
any effective medical treatment. Briefly put, Ms. Nesbitt has a
constant headache. It is through the filter of that headache that
her life is lived.
[3] Ms. Nesbitt has been under the
care of her family doctor, Dr. Vassos, since September 1994.
After exhausting all modes of treatment without success, Dr.
Vassos sent her to the Rothbart Pain Clinic, a medical facility
in Toronto specializing in chronic pain. The specialist's report
confirmed Dr. Vassos' diagnosis that the pain Ms. Nesbitt was
experiencing in her head, neck and lower back impaired her
ability to concentrate and focus and that it had a negative
effect on her short-term memory. Rothbart offered little hope of
relief other than the possibility of specialized surgery to kill
the nerves in her neck and lower back.
[4] As required by the Act[1], Ms. Nesbitt filed
a disability tax credit certificate with Canada Customs and
Revenue Agency (CCRA). The certificate is CCRA's Form T2201. It
contains a list of standard questions to be answered by the
taxpayer's doctor by checking "yes" or "no"
in the space provided. In response to whether his patient could
"perceive, think and remember", Dr. Vassos checked the
"no" box. Not satisfied with Dr. Vassos' replies in the
certificate, CCRA sent Dr. Vassos another standard form CCRA
document, a questionnaire requesting additional information about
Ms. Nesbitt's condition. In the opening paragraph of the
questionnaire, the following instructions appear:
... On the attached Form T2201, "Disability Tax Credit
Certificate", you stated that since 1999 your patient's
ability to " think, perceive and remember" has been
markedly restricted. Please answer the following questions based
on your professional opinion and knowledge of your patient's
medical condition.
[5] Dr. Vassos identified her medical
condition as "chronic headache/pain" and stated that
Ms. Nesbitt's "[activities of daily living] are restricted
due to chronic headaches, she has her child in daycare due to
this problem, the headache pain causes emotional lability and
impairment of short-term memory".
[6] After receiving this additional
material, the Minister denied Ms. Nesbitt's claim for a
disability tax credit.
ANALYSIS
[7] To succeed, Ms. Nesbitt has the
onus of bringing her situation within ss.118.3 and 118.4. These
are very complicated provisions with many statutorily defined
words and phrases:
118.3. (1) Where
(a) an
individual has a severe and prolonged ... 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...
...
(b) the
individual has filed for a taxation year with the Minister the
certificate described in paragraph (a.2), and
...
118.4. (1) For the purposes of subsection ...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 ... the individual 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,
...
(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.
[8] Paraphrasing the above and
applying it to the facts at hand, Ms. Nesbitt must prove on a
balance of probabilities that she has had a severe impairment for
a continuous period of at least 12 months which renders her
unable to perceive, think and remember all or substantially all
of the time. The Minister's position is that Ms. Nesbitt has not
met this onus. Although he admits that her chronic pain has
persisted for at least 12 months, he states that she has not
established that the effect of the chronic pain is to markedly
restrict her ability to perceive, think and remember all or
substantially all of the time.
[9] In support of this contention, the
Minister points to Dr. Vassos' testimony on cross-examination
regarding the supplementary questionnaire information he had
provided to CCRA. To each of the following questions, Dr. Vassos
had checked the "yes" box:
- Was your patient oriented to the three spheres (person,
place and time)?
- Did your patient understand the concept of danger?
- Could your patient go out in the community alone?
- Could your patient remember instructions or information
given to her during appointments at your office?
- Could your patient perform her personal hygiene (without
help or supervision)?
- Could your patient make a simple purchase
independently?
[10] The Minister argues that Dr. Vassos'
answers to these questions are at odds with his initial
conclusion in Form T2201 that Ms. Nesbitt is impaired in her
ability to "perceive, think and remember". Accordingly,
his original diagnosis cannot stand and Ms. Nesbitt's claim must
fail. It is further argued that a "yes" answer to these
questions proves that Ms. Nesbitt's ability to "perceive,
think and remember" is not markedly restricted all or
substantially all of the time.
[11] Dealing with the latter point first,
whether Ms. Nesbitt is impaired within the meaning of the
Act is a question of fact based on all the circumstances
of the case. Dr. Vassos' answers in the questionnaire form part
of the fact-finding but are not in themselves determinative of
whether Ms. Nesbitt can "perceive, think and remember".
The questions that appear in the questionnaire are merely the
Department's attempt to provide some guidance in assessing the
degree of impairment; they are not conditions set out in the
Act. They certainly do not operate to the exclusion of any
other evidence of the patient's medical condition.
[12] The questionnaire asks the responding
physician to provide additional information "based on [his]
professional opinion and knowledge of [his] patient's medical
condition". It was on this basis, not as an exercise in
statutory interpretation, that Dr. Vassos furnished details, to
the extent permitted by the confines of a standard form document,
regarding Ms. Nesbitt's condition.
[13] Are his answers inconsistent with his
responses in the T2201 certificate? In the questionnaire, Dr.
Vassos named chronic headaches/pain as the impairment restricting
Ms. Nesbitt's ability to perceive, think and remember: this is
consistent with his answer on T2201. He went on to explain that
"multiple analgesics" and other medication failed to
improve Ms. Nesbitt's condition and that the severity of her
functional limitations would not change without surgical
intervention: this is consistent with his T2201 answer that her
impairment was not likely to improve. Finally, his opinion that
her "cognition is impaired (focus, concentration and short
term memory)" is consistent with his original diagnosis that
"chronic disability pain severe headaches that impair
cognitive function". On cross-examination, he confirmed that
his opinion had not changed regarding his responses to these
questions. It is not for the Court to second guess the doctor's
professional medical opinion; the task is to see whether his
diagnosis falls within the ambit of the statute.
[14] The Minister takes the position that it
does not. He points to s. 118.4(1)(d) which expressly
excludes working, housekeeping and social activities from the
definition of "basic activities of daily living". For
this reason, he argues that even if Ms. Nesbitt suffers an
impairment, it does not markedly restrict a "basic activity
of daily" living as defined by the Act.
[15] That the Court ought to take a
"humane and compassionate approach" in the
interpretation of sections 118.3 and 118.4 as first suggested by
Bowman, ACJ[2] has
received the approval of the Federal Court of Canada[3]. This does not mean,
however, that the Court can ignore the exclusionary language in
s. 118.4(d) which states that "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."[Emphasis added.]
[16] Ms. Nesbitt's evidence is that she's
had to give up her job at the bank, she is now unable to look
after the house and she and her husband no longer have any social
life. S. 118.4(1)(d) is written disjunctively. If Ms.
Nesbitt had based her claim for a disability tax credit just on
her inability to work or to keep house or to
socialize, the exclusionary provision would clearly operate to
deny each of these claims. But that is not the basis of her case.
It is her inability to "perceive, think and remember"
as set out in s. 118.4(1)(c)(i) that has turned her life
on its ear. Her evidence is that because of its over-arching
effect, the pain she experiences impairs all aspects of her life.
By necessity, this must include her ability to work, housekeep
and socialize. But it also denies her the opportunity to be a
mother. It prevents her from enjoying the solitary pleasure of
reading a book or going for a walk. It deprives her of the
innumerable cognitive skills that, while healthy, we take for
granted but without which, we lose any meaningful connection to
the world.
[17] In Ms. Nesbitt's words: "It's not
clear... it's foggy. I can't think to remember to do things.
It's all the time - I have my headaches all the
time". The Court is satisfied that there is sufficient
evidence to conclude that Ms. Nesbitt's ability to perceive,
think and remember has been impaired within the meaning of
s. 118.4 so as to entitle her to claim a disability tax
credit.
[18] The appeal is therefore allowed.
Signed at Ottawa, Canada, this 30th day of December 2003.
Sheridan, J.
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