[OFFICIAL ENGLISH TRANSLATION]
Date: 20010824
Docket: 2000-4536(IT)I
BETWEEN:
JACQUES MAHEU,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Lamarre, J T.C.C.
[1] This is an appeal filed under the
informal procedure in which the appellant disputes an assessment
by which the Minister of National Revenue ("Minister")
denied the appellant the credit for mental or physical impairment
for the 1999 taxation year under sections 118.3 and 118.4 of
the Income Tax Act ("Act").
[2] In making the assessment, the
Minister made the following assumptions of fact:
[TRANSLATION]
(a) a T2201 F (99) form entitled "Disability
Tax Credit Certificate" was completed on January 11,
2000, by an authorized physician, Dr. Pierre Labelle,
who diagnosed his patient as suffering from depression and
chronic phobic neurosis; he believed, however, that the appellant
did not take an excessive amount of time to perform certain basic
activities of daily living such as seeing, walking, speaking,
thinking, perceiving, remembering, hearing, feeding and dressing
himself and eliminating (bowel functions);
(b) the Minister has determined that the appellant
is not markedly restricted in his ability to perform his basic
activities of daily living;
(c) during the 1999 taxation year, the
appellant's ability to perform his activities of daily living
was not clearly restricted by reason of a severe and prolonged
mental or physical impairment.
[3] Entitlement to the credit for
mental or physical impairment is subject to certain conditions
under sections 118.3 and 118.4 of the Act, which read
in part as follows:
Section 118.3: Credit for mental or physical
impairment.
(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,
(a.2) in the case of
(i) a sight impairment, a medical doctor or an
optometrist,
(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,
(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,
for the purposes of computing the tax payable under this Part
by the individual for the year, there may be deducted an amount
determined by the formula
A X $4,118
where
A is the appropriate percentage for the year.
Section 118.4: Nature of impairment.
(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.
[4] Although section 118.4
provides that no other activity, including working, housekeeping
or a social or recreational activity, shall be considered as a
basic activity of daily living, the Federal Court of Appeal
recognized in Johnston v. Canada,[1998] F.C.J.
No. 169 (Q.L.) that the fact of performing such other
activity may help to establish that an individual's ability
to perform the basic activities of daily living is not markedly
restricted. Létourneau J.A. writes as follows in
paragraphs 21 and 22:
¶ 21 Section
118.4 clearly states for greater certainty that no other
activity, including working, housekeeping or a social or
recreational activity, shall be considered as a basic activity of
daily living. This, on the one hand, means that a claimant
is not entitled to the tax credit if his impairment prevents him
from having a social life or enjoying recreational
activities. However, this also means, on the other hand,
that a claimant cannot be penalized and disallowed the credit if
he has been able to organize for himself a social life or
recreational activities.
¶ 22 However,
the social or recreational activities of a claimant may be of
such a nature as to evidence an ability to walk, dress or feed
which is not markedly restricted. In my view, it is not the
lifestyle per se of a claimant which is relevant to a
determination of his inability, but the nature, length and
frequency of any other activity that he performs since the
performance of such other activity may contribute to establish
that the performance of the basic activities of his daily living
is not markedly restricted.
Looking at it from another angle, I am of the opinion that the
fact that an individual is unable to perform another such
activity may assist, though without being a decisive factor, in
establishing that that individual's ability to perform the
basic activities of daily living may be markedly restricted.
[5] In the instant case, two
prescribed forms were completed by the appellant's attending
physician, Dr. Pierre Labelle, one on April 2,
1998, and the other on January 11, 2000. On those two forms,
Dr. Labelle acknowledged that the appellant's mental
abilities had been restricted permanently since 1993 as he had
diagnosed major depression and chronic phobic neurosis in the
appellant.
[6] Dr. Labelle recognized in
response to question 4 on the forms that the appellant was
able to think, perceive and remember with the aid of medication
or therapy. In response to question 9 on the forms, he
acknowledged that the impairment was severe enough to restrict
the appellant's basic activities of daily living all or
substantially all of the time, even with the use of medication or
therapy. It was therefore logical for the appellant to expect to
be allowed the credit for mental impairment without having to
adduce additional evidence.
[7] The respondent contends that the
appellant does not meet the tests for eligibility for the credit
set out in the Act. The respondent thus does not consider
valid Dr. Labelle's answer to question 9 on the
prescribed forms, which question, to a certain degree, restates
the tests established by the Act. The respondent did not
see fit, however, to have Dr. Labelle testify so that she
could challenge his answer to question 9. The respondent
merely filed, with the consent of the appellant (who was not
represented by counsel), a questionnaire completed by
Dr. Labelle at the respondent's request on
September 14, 1998. In that questionnaire, Dr. Labelle
answered that the appellant was unable to perceive, think and
remember all or substantially all of the time, even with
medication, therapy or assistance. However, he stated a little
further on that there was no severe restriction, but added that
the appellant suffers from chronic obsessive-compulsive
neurosis.
[8] In view of the apparent
contradiction in the answers given on the questionnaire, I see no
point, given Dr. Labelle's absence from the hearing, in
attaching any great importance to that questionnaire. I find that
the appellant was unable to assess the scope of that document,
which was completed at the Minister's request without advance
notice to the appellant.
[9] I also heard the testimony of the
appellant and his wife, Micheline Pinsonneault. The
appellant explained that he had suffered a severe depression and
that his nervous system had been affected to the point where he
could no longer function normally as he had previously done. He
had become very slow in performing any task at work and had had
to leave his employment on his physician's recommendation
after losing control of himself in a violent outburst. Since
then, he has been unfit to work, has had to sleep several hours
during the day, and has been unable to handle his personal
affairs or to read. The Régie des rentes du Québec
and various insurance companies have recognized him as being
disabled. He is now living on his disability benefits.
[10] His wife explained that, although
medication was prescribed to combat severe depression, it has had
as a side effect a considerable reduction of the appellant's
ability to perform his daily activities. Thus, driving the car
has become dangerous, in that he confuses red lights and stop
signs. He also becomes confused when he is required to travel
from one place to another. He no longer has either the
concentration needed to attend to his personal affairs or the
ability to do so. In short, he can no longer function normally
without his wife.
[11] Counsel for the respondent referred
inter alia to the decision rendered in Radage v.
Canada, [1996] T.C.J. No. 730 (Q.L.), in which
Judge Bowman of this Court conducted a detailed analysis of
the basic activities of daily living described in the Act
as including "perceiving, thinking and
remembering".
[12] In that analysis, Judge Bowman
established that the Court must interpret sections 118.3 and
118.4 of the Act in a liberal, humane and compassionate,
not narrow and technical, manner. That comment was cited with
approval by the Federal Court of Appeal in Johnston,
supra.
[13] With respect to mental impairment,
Judge Bowman writes as follows in paragraph 45 of the
decision in Radage:
Finally, there must be considered - and this is the most
difficult principle to formulate - the criteria to be employed in
forming the judgement whether the mental impairment is of such
severity that the person is entitled to the credit, i.e. that
that person's ability to perceive, think and remember is
markedly restricted within the meaning of the Act. It does
not necessarily involve a state of complete automatism or
anoesis, but it should be of such a severity that it affects and
permeates his or her life to a degree that it renders that person
incapable of performing such mental tasks as will enable him or
her to function independently and with reasonable competence in
everyday life.
[14] In Radage, the taxpayer claimed
a credit for his son, who was described as having a borderline
range of intelligence. This child was slower than and different
from others. At the age of 24, he could not work without
supervision, was unable to do simple mental calculations, had
limited spatial perception, was incapable of managing his own
affairs, could not make friends and had trouble understanding
certain written documents. He was ill-suited to the job market
and to society in general. Although he could feed and dress
himself alone, his behaviour as a whole in fact created serious
barriers to an independent life, to employment and to his
functioning in society. Indeed, he could not function without the
aid of members of his family.
[15] Having considered all this,
Judge Bowman came to the conclusion that the intellectual
limits of the taxpayer's son were severe enough to render him
incapable of performing such mental tasks as would enable him to
function independently and with reasonable competence in everyday
life.
[16] I find that, although the
appellant's case is not identical to that in Radage,
there are enough similarities to allow the same conclusion to be
drawn. It is clear from the medical certificates filed in
evidence that the appellant suffers from a severe and prolonged
mental impairment. Those certificates establish that the
impairment is severe enough to restrict the appellant's
ability to perform his basic activities of daily living all or
substantially all of the time. I therefore find, in light of the
analysis in Radage, that the appellant has shown that his
ability to perform the basic activities of daily living in the
areas of perceiving, thinking and remembering is markedly
restricted.
[17] For these reasons, I would allow the
appeal on the basis that the appellant is entitled to the credit
for mental or physical impairment under sections 118.3 and
118.4 of the Act.
Signed at Ottawa, Canada, this 24th day of August 2001.
J.T.C.C.
Translation certified true
on this 17th day of February 2003.
Erich Klein, Revisor
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