Date: 20010907
Docket: 2000-3406-IT-I
BETWEEN:
GEORGES NOAILLE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor
Judgment
Bowman, A.C.J.
[1]
This is an appeal from an assessment for the year 1998.
[2]
The appellant's spouse has a severe and permanent disease,
celiac disease, which results in extreme intolerance to all foods
containing gluten. She is doubly afflicted because she also
suffers from lactose intolerance. This disease has an impact on
all aspects of her life. She must avoid consuming all foods and
beverages containing gluten — in general, grains — or
lactose — in general, foods and beverages containing
substances derived from milk.
[3]
She cannot travel or eat at restaurants. Purchasing and preparing
food are difficult tasks which take an excessive amount of time.
If she accidentally eats food containing gluten or lactose, or if
she uses a dish or utensil, such as a knife or spoon, that has
touched those substances, she experiences severe abdominal pain,
nausea and diarrhea and could suffer serious intestinal
damage.
[4]
The disease is accurately described in a publication produced by
the Canadian Celiac Association.
Celiac Disease is a medical condition in which the absorptive
surface of the small intestine is damaged by a substance called
gluten. This results in an inability of the body to absorb
nutrients: protein, fat, carbohydrates, vitamins and minerals,
which are necessary for good health.
Although statistics are not readily available, it is estimated
that 1:200 persons in Canada are affected by Celiac Disease.
A wide range of symptoms may be present. Symptoms may appear
together or singularly in children or adults. In general, the
symptoms of untreated Celiac Disease indicate the presence of
malabsorption due to the damaged small intestine.
Gluten is a protein found in wheat, rye, tritical, barley, and
oats. In the case of wheat, gliadin has been isolated as the
toxic fraction. It is the gluten in the flour that helps bread
and other baked goods bind and prevents crumbling. This feature
has made gluten widely used in the production of many processed
and packaged foods.
. . .
What is Celiac?
COMMON SYMPTOMS
Anemia - Chronic Diarrhea - Weight Loss - Fatigue - Cramps and
Bloating - Irritability
Although some or all of these symptoms occur in Celiac
Disease, some can also occur in many other diseases more common
than Celiac Disease.
In other cases, sufferers from gluten-intolerance develop an
intense burning and itching rash called Dermatitis
Herpetiformis. The intestinal symptoms of Celiac Disease
may or may not appear in Dermatitis Herpetiformis
DIAGNOSIS
. . .
A definitive diagnosis can only be made by a small bowel
biopsy . . . .
TREATMENT
Celiac Disease as yet has no known cure, but can usually be
effectively treated and controlled. The treatment of Celiac
Disease is strict adherence to a GLUTEN FREE DIET FOR
LIFE. This requires knowledgeable dietetic
counseling . . . . Celiacs must be alert to
hidden sources of gluten such as HVP/HPP (hydrolyzed
vegetable/plant protein); malt; . . . and certain drug
products.
Today's processed and packaged foods have many hidden
sources of gluten . . . . Particular care
should be taken in the selection of soups, luncheon meats and
sausages.
The person with Celiac Disease MUST READ THE LIST OF
INGREDIENTS ON ALL LABELS, EVERY TIME.
There is a great variation in sensitivity to gluten among
those with Celiac Disease, and although one may have no obvious
symptoms, damage to the intestinal lining may still occur.
WHO ARE CELIACS?
Celiac Disease can surface at any age. Until recently, it was
recognized mainly in children. The rate at which adults are being
diagnosed is increasing, particularly those in the 40-50 year old
range, due to great awareness and improved diagnosis
skills. . . .
IS IT HEREDITARY?
While it is still unknown whether Celiac Disease is passed on
by a dominant or recessive gene it has been established that
genetic factors are involved. About 10% of the relatives of
persons with Celiac Disease may also have the condition.
IS THERE A CURE?
Not yet. However, research efforts continue. But Celiac
Disease can be controlled. Strict adherence to the GLUTEN-FREE
DIET is essential for good health.
[5]
The expert report of Nicole Doucet, dietitian, contains the
following observations:
[TRANSLATION]
Celiac Disease and Diet
What is Celiac Disease?
Celiac disease, also called enteropathy or gluten
hypersensitivity, is a medical condition in which the absorptive
surface of the small intestine is damaged by a substance called
"gluten". Gliadin is the protein fraction of gluten
that destroys the tissues of the small intestine, causing a
cytotoxic reaction in the mucus membrane and results in atrophy
of the intestinal villi and micro-villi. This results in an
inability of the body to absorb nutrients such as protein, fat,
carbohydrates, vitamins and minerals, which are necessary for
good health. Eliminating foods containing gluten (wheat, rye,
barley, oats and tritical) enables the intestinal mucosa to
return to normal and restores absorption of nutrients in the
small intestine.
The risk of developing celiac disease appears to be the result
of a complex combination of genetic predispositions and
environmental factors (for example, foods containing gluten). The
disease is present around the world and recent epidemiological
studies suggest it is very likely under-diagnosed. The frequency
of typical and atypical cases is just beginning to be known. The
frequency of celiac disease in North America was originally
considered quite low, although it is now compared to the
frequency of the disease in Europe.
Symptoms of Celiac Disease
The clinical signs of celiac disease vary with the age of the
patient and the duration and severity of the disease. In some
persons, symptoms are severe, even debilitating, whereas, in
others, they may be few and not very severe. The nature of the
symptoms appears to reflect the presence and degree of
malabsorption through the damaged intestinal mucosa.
The classic symptoms of celiac disease generally appear in
infancy, the first observed symptoms being a stunting of growth
when cereals are introduced into the diet. The most common
symptoms an anorexia, irritability, a pale complexion and a
weakened appearance together with abdominal bloating, diminished
muscle tone and a gradual decline in weight gain. In addition,
soft, foul-smelling and clay-coloured stools are commonly
observed in this age group. Severe abdominal cramps may signal
the onset of celiac disease in pre-school-age children, while
anemia and slow growth may be observed in older children.
The onset of celiac disease may occur at any time in life.
Symptoms are usually less severe in adults, in whom the
precursors of the disease are slight iron deficiency, fatigue and
minor weight loss. Other, more frequently observed, symptoms are
alternating diarrhea and constipation, abdominal pain, abdominal
bloating and flatulence.
In Canada, the most common symptoms, as reported in the
national survey of the Canadian Celiac Association are diarrhea,
abundant and floating stools, weight loss, stunted growth in
children, abdominal bloating, abdominal pain, irritability or
apathy and nausea or vomiting. Other relatively common symptoms
include constipation, easy bruising, swelling or edema, and
anemia. These symptoms are alleviated by appropriate dietary
changes.
[6]
According to the evidence of the appellant and his spouse,
Mrs. Noaille has all the aforementioned symptoms to an
extreme degree.
[7]
Mrs. Noaille's dual affliction is clearly so severe that
it makes all aspects of her life virtually intolerable. I am
satisfied that her celiac disease and lactose intolerance are a
severe and prolonged physical impairment and that the effects of
her impairment are such that Mrs. Noaille's ability to
perform an activity of daily living is markedly restricted.
Section 118.4 of the Income Tax Act reads as
follows:
(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 and 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; and
(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]
The activities relevant to Mrs. Noaille's case are:
(1)
feeding oneself; and
(2)
eliminating (bowel or bladder functions).
[9] I
agree with the physician who signed the disability tax credit
certificate. The relevant parts of his certificate are as
follows:
[TRANSLATION]
. . .
Date your patient became markedly restricted:
Year
Month
1985
02
. . .
Indicate medical diagnosis relevant to the impairment and
describe the restriction and aids used. Failure to complete this
area might result in the claim being disallowed or the assessment
of the income tax return being delayed.
Patient can only eat gluten-free products because of an
intolerance causing: diarrhea, malabsorption and risk of
neoplasia and thus severe physical impairment.
. . .
6.
Feeding and dressing
Yes No
(a)
Is your patient able to feed
himself or herself, using an
aid if
necessary?
___
X
. . .
7.
Elimination
Is your patient able to control and personally
manage bowel and bladder functions, using
an aid if necessary?
(For example, has uncomplicated ostomy or
uses a
catheter.)
___
X
. . .
9.
Is the impairment severe enough to
restrict the basic activity of daily living
identified above all, or almost all, the
time, even with therapy and the use of
appropriate aids and medication?
X
___
[10] According
to the Federal Court of Appeal in A.G. of Canada v. MacIsaac
et al., 2000 DTC 6020, the box the physician checks
is of absolute importance and his finding may not be questioned
by the Court, even if the conclusion indicated by the physician
is absurd and contrary to the evidence adduced in court. The
strange result to which the Federal Court of Appeal's
decision leads may be seen from what happened when these two
cases were reheard by this Court (Morrison v. R., [2000]
3 C.T.C. 2291). In one of those cases, the physician
admitted that he had intended to check "yes".
Unfortunately, he gave the form to his secretary, who mistakenly
checked "no". In the other case, the physician had
filed three certificates. He had checked "yes" on the
first, "no" on the second and between the two boxes on
the third. The Court of Appeal nevertheless held that the Court
must not question the infallibility of physicians. I therefore
allowed the appellant the credit since one of the boxes the
physician had checked was the right one.
[11] In the
instant case, I am far from disputing the physician's
conclusion. I accept it, assuming that he managed to express it
and knowing that I am not free to question it, and I support it
fully. The physician checked the right box, and, according to the
Federal Court of Appeal, that settles the matter.
[12] I
acknowledge that there appears to be a difference of opinion
within this Court concerning celiac disease. In Hagen v.
Canada, 1997 CarswellNat 1305, [1997] T.C.J. No. 827,
and McMaster v. Canada, [1998] T.C.J. No. 301, [1999]
1 C.T.C. 2658, two judges of this Court held that
persons with celiac disease were not entitled to the tax credit
for severe and prolonged physical impairment.
[13] In
Hamilton v. Canada, [2001] T.C.J. No. 300, and
Leduc v. Canada, [1999] T.C.J. No. 765, two other
judges of this Court found that persons with the disease are
entitled to the credit.
[14] The
decision in Hamilton was appealed to the Federal Court of
Appeal. The Crown discontinued an appeal to the Federal Court of
Appeal from this Court's decision in Leduc.
[15] It would
be pointless to try to reconcile these two lines of decisions.
Each case turns on its own facts and, particularly in the case of
celiac disease, differences in the severity of the disease are
extreme and striking. Mrs. Noaille's case is clear and
extreme.
[16] I agree
with and adopt Judge Lamarre's reasoning in Leduc
and that of Judge Campbell in Hamilton. In their
decisions, both judges followed the reasoning of the Federal
Court of Appeal in a previous decision in Johnston v. The
Queen, 98 DTC 6169.
[17] Celiac
disease is a severe and debilitating impairment and it is high
time that the courts and tax authorities recognized it as
such.
[18] There is
another point at issue in this case. The appellant is seeking a
credit for the cost of special gluten-free bread. I regret that I
cannot help Mr. Noaille on this point. The medical expenses
that enter into the calculation of the tax credits under
section 118.2 are (according to
paragraph 118.2(2)(n)) the following:
(n)
for drugs, medicaments or other preparations or substances (other
than those described in paragraph (k)) manufactured, sold
or represented for use in the diagnosis, treatment or prevention
of a disease, disorder, abnormal physical state, or the symptoms
thereof or in restoring, correcting or modifying an organic
function, purchased for use by the patient as prescribed by a
medical practitioner or dentist and as recorded by a
pharmacist . . . .
[19]
Gluten-free bread meets all the conditions of this paragraph
except the last one — it is not recorded by a pharmacist.
It can be obtained in natural food stores.
[20] The
appeal is allowed and the assessment is referred back to the
Minister of National Revenue for reconsideration and reassessment
on the basis that the appellant is entitled to a tax credit under
sections 118.3, 118.4 and 118.8 because his spouse had a
severe and prolonged physical impairment.
Signed at Ottawa, Canada, this 7th day of September
2001.
"D. G. H. Bowman"
A.C.J.
Translation certified true on this 30th day of October
2001.
[OFFICIAL ENGLISH TRANSLATION]
Stephen Balogh, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-3406(IT)I
BETWEEN:
GEORGES NOAILLE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on June 21, 2001, at
Montréal, Quebec, by
the Honourable Associate Chief Judge D. G. H.
Bowman
Appearances
For the
Appellant:
The Appellant himself
Counsel for the Respondent:
Michel Lamarre
JUDGMENT
It is
ordered that the appeal from the assessment made under the
Income Tax Act for the 1998 taxation year be allowed and
that the assessment be referred back to the Minister of National
Revenue for reconsideration and reassessment on the basis that
the appellant is entitled to a tax credit under sections
118.3, 118.4 and 118.8 because his spouse had a severe and
prolonged physical impairment.
Signed at Ottawa, Canada, this 7th day of September
2001.
A.C.J.
Translation certified true
on this 30th day of October 2001.
Stephen Balogh, Revisor
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