|
Citation: 2003TCC609
|
|
Date: 20030902
|
Docket: 2003-572(IT)I
|
|
BETWEEN:
|
|
WILLIAM GOSSIFIDOU,
|
|
Appellant,
|
|
and
|
|
|
|
HER MAJESTY THE QUEEN,
|
|
Respondent.
|
REASONS FOR JUDGMENT
Bowie J.
[1] Mr. Gossifidou brings this appeal
from his income tax assessment for 2001. It was heard at
Hamilton, Ontario under the Court's informal procedure. The
issue is whether he is entitled to the disability tax credit that
is provided for in sections 118.3 and 118.4 of the Income Tax
Act (the Act).
[2] The Appellant has been involved in
two separate motor vehicle accidents, and they have left him
considerably limited in his daily living activities. He has
degenerative disc disease affecting three vertebrae in his neck;
he has nerve damage affecting his spine; he has arthritis in his
arms and legs. He can walk more than six blocks, but he
does so slowly, and certainly not for long distances without
taking frequent rests. After he walks any great distance, he
suffers from muscle spasms and pain in his legs. His bowel and
bladder functions are affected in that it takes him a
considerable time to evacuate; he said that he may spend as much
as two or three hours in the bathroom. He does housework, but it
can take him as long as five and one-half hours to vacuum his
apartment and do the dishes. He said that he does not sleep well
because of the pain.
[3] The Appellant has received the
disability tax credit annually since 1984. Having once qualified
to receive it, he was not asked to file a medical certificate, or
any other evidence of his medical condition until 2001. Although
the Minister of National Revenue is entitled to require taxpayers
who claim the credit to provide the prescribed medical
certificate each year, in practice he seldom does so. That was
the case with Mr. Gossifidou for the years between 1984 and 2000.
He made it clear in his evidence that he felt that it was unfair
to require him to requalify in 2001, but that is a matter for the
Minister's discretion, not mine. My jurisdiction is limited
to deciding, on the basis of the evidence before me, whether the
Appellant has met the requirements of the Act so as to be
entitled to the credit that he claims.
[4] Unfortunately for Mr. Gossifidou, the medical certificate
that his doctor provided for him to file with his return for 2001
does not establish the minimum requirements to qualify him to
receive the credit under section 118.3. The relevant part of that
subsection reads:
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 and 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 (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 ...
[irrelevant]
The certificate signed by Mr. Gossifidou's doctor states
that he has "severe cervical and lumbar disc disease",
but in answer to each of the specific questions:
"Can your patient see?"
"Can your patient walk?"
"Can your patient speak?"
"Can your patient perceive, think and remember?"
"Can your patient hear?"
"Can your patient feed or dress himself or
herself?"
"Can your patient personally manage bowel and bladder
functions?"
the doctor answered "yes". As a result the Minister
denied the Appellant the tax
credit.
[5] Having heard Mr. Gossifidou's
evidence as to his disability, and the degree to which it affects
his activities, I cannot say that it is inconsistent with the
answers given by the doctor in completing the prescribed
form.
[6] The Federal Court of Appeal dealt
with a very similar situation in McIsaac v. The Queen.[1] In that case
Sexton J.A., speaking for the Court, said:
5 While
we sympathize with both Respondents and with the position taken
by the Tax Court Judge we cannot agree with him on this
question. 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.
6 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.
[7] Mr. Oliphant very fairly brought
to my attention the decision of Rip J. in Watkin v.
Canada.[2] The
Appellant in that case was not prevented by her medical condition
from carrying out any one activity of daily living, but Rip J.
held that the cumulative effect of her condition on a number of
activities of daily living was such that she nevertheless
qualified for the tax credit. However, the medical certificate in
that case did certify that the taxpayer's activities of daily
living were markedly restricted, although apparently no one
activity alone was sufficiently restricted to meet the statutory
test. In the present case, there is no such certification at all.
Moreover, in this case much of the Appellant's evidence as to
the demands that were made on his time by activities other than
walking related specifically to housework, which Parliament has
specifically excluded from the definition of "a basic
activity of daily living" found in paragraph
118.4(1)(c) of the Act. This is not a case to which
the principle of Watkin can be extended.
[8] In the absence of any certificate
satisfying the requirements of section 118.3, I have no
alternative but to dismiss this appeal. I appreciate that it is
difficult for Mr. Gossifidou, and others in the same position, to
understand why they were eligible to receive this tax credit a
decade ago but are now found to be ineligible, even though their
symptoms often have become more severe with the passage of time.
One reason for this is that Parliament amended the Act in
1994, and in doing so made it more difficult for a taxpayer to
qualify.
[9] The appeal is dismissed. In view
of the history of this matter the Minister may consider it an
appropriate case in which to apply his power under
subsection 220(3.1) of the Act to waive any interest
that would otherwise be payable by the Appellant.
Signed at Ottawa, Canada, this 2nd day of September, 2003.
J.T.C.C.
Email this Content