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Citation: 2004TCC422
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Date: 20040614
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Docket: 2004-235(IT)I
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BETWEEN:
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KEITH JORGENSON,
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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
Beaubier, J.
[1] This appeal pursuant to the
Informal Procedure was heard at Saskatoon, Saskatchewan, on June
4, 2004. The Appellant testified and called his father, Murray
Jorgenson, and Sally Greenough, B.A., B. Ed., M. Ed. The
Respondent called Yvonne Provost, an Appeals Officer.
[2] Paragraphs 6 to 11 of the Reply to
the Notice of Appeal set out the matters in dispute. They
read:
6. By letter
received December 23, 2002, the Appellant requested an adjustment
to his 2001 income tax return to allow the Disability Amount.
7. The
Appellant was denied his request in a letter dated March 3, 2003
issued by N. Rawluk in T1Client Services of the Canada Customs
and Revenue Agency.
8. By letter
dated July 11, 2003 the time period in which to file a Notice of
Objection was extended to the date of the letter.
9. In response
to the Notice of Objection, the Minister confirmed the assessment
for the 2001 taxation year by means of a Notification of
Confirmation dated October 10, 2003 as the Appellant was not
markedly restricted in his ability to perform an activity of
daily living.
10. In so assessing the
Appellant and in so confirming that assessment, the Minister
relied on the same facts as follows:
(a) the Appellant
sought to claim the credit for the Disability Amount for himself
in respect of his ability to perceive, think and remember;
(b) the above
described impairment did not markedly restrict the
Appellant's ability to perform a basic activity of daily
living in the 2001 taxation year;
(c) in a report
issued April 17, 1992 by Pauline Greenough, M.ED., N.F.F.
(London), an Associate Professor at the University of
Saskatchewan with the Department for the Education of Exceptional
Children, College of Education:
(i) test
results/comments indicate that:
(a) the results of
the Raven's Progressive Matrices Test, a test of
non-verbal logical reasoning and thus presumably not affected by
a language learning disability, showed that the Appellant did
exceptionally well scoring above the 95%ile, in the tip 5% of the
population which is described as the "intellectually
superior" group;
(b) the results of
the Peabody Picture Vocabulary Test, which has a high
correlation with tests of verbal intelligence, the Appellant
scored at the 81st percentile, a high score even compared with
university students and this test measures understanding of words
heard;
(c) the
Appellant's written language vocabulary assessed using the
Test of Adolescent Language was at the 84th percentile,
again a superior score;
(d) his performance
reading silently, using the Gapadol Reading Comprehension
(Cloze) Test, though adequate (65%) is not the level expected
from a student with the Appellant's intellectual calibre;
and
(e) in the
Advanced Reading Inventory (Johns) the Appellant was able
to read and understand the College level paragraphs; and
(ii) the conclusion
was that the Appellant was a "very intelligent eighteen year
old who has a neurologically based learning disability,
dysgraphia/dyslexia";
(d) the Disability
Tax Credit Certificate signed on December 6, 2002 by Sally
Greenough, a registered psychologist indicating:
(i) the Appellant
was born on June 8, 1973;
(ii) the Appellant
could not perceive, think and remember all or almost all of the
time;
(iii) the Appellant was
diagnosed with a severe and prolonged lifelong learning
disability; and
(e) the Appellant is
not entitled to include the Disability Amount in the computation
of his non-refundable tax credits and tax payable for the 2001
taxation year.
B.
ISSUES TO BE DECIDED
11. The issue is whether
the Appellant was entitled to a Disability Amount under section
118.3 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp)
(the "Act").
[3] None of the assumptions were
refuted by the evidence.
[4] Ms. Greenough signed the required
Certificate without examining the Appellant. She did so based on
her mother (a psychologist who is now 77) having treated
the Appellant as a school-boy and again when he was in university
some years ago. Ms. Greenough's mother filled in the
form without any current examinations of the Appellant. For these
reasons, the Certificate is valueless.
[5] The Certificate states that the
Appellant, who was born in 1973 and has a B.A. (English) and a B.
Ed. cannot "perceive, think and remember". The form
further states "...answer no if he or she cannot
manage or initiate personal care without constant
supervision". "No" was checked. On the evidence,
the Certificate is false.
[6] In 2001 the Appellant was a
professional, employed teacher in Saskatchewan. He is a bachelor.
For the first five months of the year he lived on his own in a
house in Punnichy, Saskatchewan and for the year he provided for
himself, handled his own investments, bills and banking. He
initiated and participated in a team which attempted to get a
research grant. Later in 2001 he moved to Saskatoon to assist in
caring for his dying grandmother who had raised him. In 2002 he
purchased a house.
[7] Based upon Ms. Greenough's
evidence, the Appellant may have succeeded in compensating for
his disability over the years.
[8] But in any event, the evidence is
patently clear that the Appellant does not have a disability
within the meaning and terms of the Income Tax Act, and
did not have one in 2001.
[9] The Appeal is dismissed.
Signed at Calgary, Alberta, this 14th day of June 2004.
Beaubier, J.
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