Date: 20010907
Docket: 95-3818-IT-I
BETWEEN:
JULIUS P. ANDRASIK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
__________________________________________________________________
For the
Appellant:
The Appellant himself
Counsel for the
Respondent:
Lisa Macdonell
____________________________________________________________________
Reasons for Judgment
(Delivered orally from the Bench at Vancouver,
British Columbia,
on Tuesday, March 5, 1996 and reduced to
writing at
Ottawa, Ontario on September 7, 2001)
Margeson, J.T.C.C.
[1]
The question before the Court for decision is whether or not the
Appellant, Julius P. Andrasik and Her Majesty The
Queen, 95-3818(IT)I, is entitled to claim the disability tax
credit for the 1993 taxation year in computing his income for
that year. The appropriate provisions of the Income Tax
Act ("Act") are sections 118.3 and 118.4,
and subsections 117.1(1) and 248(1), to a lesser extent.
[2]
The sole question is whether or not the Appellant in the year in
question was suffering from a disability referred to in this
section. For him to be entitled to the credit, it must be a
disability, which meets all of the requirements of the sections.
The Appellant gave testimony and said that he was involved in an
accident in 1973, his nose was crushed, he lost his sense of
smell and he has been suffering from this ever since. It is
completely gone, from what he says, and he considers it to be a
severe impairment.
[3]
He pointed out some of the difficulties that he has in daily
living as a result of this impairment. On occasions he has found
himself in danger because he cannot smell. On one occasion he
went into a cooler where there was a leaking of ammonia gas and
he was unable to detect it. Because of the assistance of somebody
else who could smell it, he was able to get out without any
apparent injury.
[4]
There is no device available for him to alleviate this situation.
There is nothing that will help him bring back his sense of
smell.
[5]
On another occasion that he referred to, he saw a person applying
a gas mask and was told that there was a leaking of chlorine gas
in the area and he was told to vacate the area. Again he was only
able to extricate himself from this situation by the assistance
of other people.
[6]
On one occasion he consumed spoiled milk, because he was unable
to detect that it was bad. This was caused by his lack of the
sense of smell. He was not warned by the smell. He pointed out
that the sense of smell and taste sometimes go hand in hand and
one enhances the other. One without the other is not necessarily
that acute.
[7]
Up until 1994, he had an accountant who did his tax work and the
Court assumes from what he said that the accountant did not claim
the disability tax credit. He came across line 316 in the
information guide provided to him by Revenue Canada in his 1993
return and he noted the words "disability tax credit
availability" and noted the word "perceive".
That led him to conclude that he should be entitled to receive
the disability tax credit because of the loss of the sense of
smell.
[8]
He filed a certificate for the disability tax credit in the year
in question. It is before the Court as Exhibit R-1. He confirmed
that in the certificate itself, in paragraph 12, the answer was
"no" to the question as to whether or not the doctor
believed that he had a prolonged impairment such as would qualify
him for the disability tax credit under the appropriate sections.
His evidence was that he has no certificate, which would indicate
that he has a disability in keeping with the requirements of the
sections referred to. However, that was his doctor's
opinion and he does not agree with it. He says that he does
qualify.
[9]
The Respondent tendered the exhibit and called no evidence.
[10] In
argument, the Respondent took the position that the Appellant is
not entitled to the disability tax credit. She referred to
paragraph 118.3(1)(a.2) of the Act. That paragraph
says that where an individual has a severe and prolonged mental
or physical impairment, which is later defined in
paragraph 118.4(1)(a) as:
(a) an impairment is prolonged where it has lasted, or
may 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;
Paragraph 118.3(1)(a.2) read as follows:
(a.2) a medical doctor, . . . has certified in
prescribed form that the individual has 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),
...
Those are the appropriate provisions.
[11] Counsel
for the Respondent says that the Appellant is not entitled to the
tax credit, first of all, because he has not complied with
paragraphs 118.3(1)(a.2) or 118.3(1)(b) of the
Act.
[12] During
his argument, the Court asked the Appellant if he could point it
to any provision of the Act which would allow the Court to
get around that section or if he could refer to any other part of
the Act or any other argument that could convince the
Court that it has any jurisdiction to disregard what would appear
to be a prerequisite to the availability of the tax credit. He
was unable to do so. Counsel takes the position that there is a
prerequisite. One cannot obtain the disability tax credit until
one has filed the requisite certificate. It has not been filed,
therefore the appeal should be dismissed.
[13] Secondly,
her position was, regardless of that, when you look at the
definition of the requisite impairment in paragraph
118.4(1)(c) of the Act:
(c) a basic activity of daily living in relation to an
individual means
(i) perceiving, thinking and remembering,
. . .
The Appellant does not meet the requirements.
[14] There is
no doubt that it is the perceiving, thinking and remembering that
is in issue here. The Respondent's position is that
perceiving, thinking and remembering must be taken together in
order for you to qualify for the disability under heading
(c). As a basic activity of daily living, it must be
perceiving, thinking and remembering. One must be unable, for all
or basically all of the time, to perform that basic activity of
daily living or that one takes an inordinate amount of time to
perform that basic activity of daily living because one's
perceiving, thinking and remembering has been disabled.
[15] She says
that when you consider the term "smell" and look at
what has to be the interpretation of subparagraph
118.4(c)(i), one must consider perceiving, thinking and
remembering together. Even if she were prepared to admit that
smelling is to some extent, some form of perceiving, it is not
perceiving in this sense under subparagraph 118.4(c)(i) of
the Act. Perceiving there means in the mental sense of
being aware of or being able to understand things. It must be
taken in conjunction with thinking and remembering, not just in
conjunction with what perceiving means in the definitional
sense.
[16] The
Appellant referred to the definition in the dictionary of the
word "perceiving". Certainly if you take the term
"perceiving" in its broadest sense, the Court would
conclude that sensing or smelling might have something to do with
perceiving in certain situations. But if one considers it in the
more restrictive sense, and if counsel is right, then perceiving
as used in section 118.4 of the Act has to do with the
mental side and not the physical aspect as in the sense of smell,
smelling is a physical attribute. Even if it is conceivable that
even when one is attempting to understand something in certain
situations, smelling may remotely be a part of trying to
perceive, her proposition is that it is not, and even if it were,
all three aspects, (perceiving, thinking and remembering), must
be considered jointly and all three of them must be affected.
That is her position, so she says the Appellant does not
qualify.
[17] The
Appellant says that as far as he is concerned, there is an
impairment of the neural system according to the definition in
the dictionary and according to Income Tax Bulletin 519R, which
he referred to on page 3. His understanding from that bulletin is
that smelling is a function of the neural system. Consequently,
it is a part of perceiving, thinking and remembering and,
therefore, he qualifies for the disability tax credit.
[18] He takes
the position that his disability poses a real danger to him. His
thinking is affected. He used the example of him having to test
very frequently the fire alarm system because he is frightened
that it is not working because he cannot smell smoke.
Consequently, it has affected his daily living. He cannot smell
flowers, he suffers a disability in that sense, that is part of
his daily living. He believes that the previous two decisions
with respect to his claim being rejected were merely
rubber-stamping and he has not had a fair hearing as far as he is
concerned. Those are the arguments.
[19] It is the
Court's duty to decide in this case whether the Appellant
has met the requirements of the Act. It is immaterial what
an income tax bulletin might say. The Court is not bound by an
income tax bulletin. Obviously the statement that was referred to
in the income tax bulletin does not seem to conform even with the
attitude that Revenue Canada appears to have taken with respect
to these cases. This is the first case that this Court has ever
heard on the sense of smell, and the Minister's attitude up
to this point in time in rejecting the position of the Appellant
would appear to be contrary to that stated position in the
bulletin.
[20] The Court
has to interpret the Act as it sees it. The bulletins are
merely for the guidance of individuals. All they can be relied
upon for, if they can be relied upon for anything, is that they
indicate that at any point in time when the bulletin was written,
the draftsmen believed that this would be the way that the
section would be interpreted. It cannot be anything more than
that.
[21] The Court
then asks the question: Has Mr. Andrasik satisfied the Court
on the balance of probabilities that he has qualified for the
disability tax credit that he seeks? The Court's answer to
that is no, he has not for two reasons. One, the Court is
satisfied that in order for the Appellant to meet the
requirement, he would have had to file under paragraph
118.3(1)(a.2) the certificate referred to. The only
certificate before the Court is Exhibit R-1, which
definitely is a negative certificate. It says the very opposite
of what he seeks to prove. It is signed by
Dr. D.A.C. Johnston and it says that he did not suffer
from the disability or the impairment that he has to prove here.
The certificate does not help him and as a matter of fact, is
contrary to the position that he takes.
[22] There is
no other certificate that he has that would meet the requirements
of paragraph 118.3(a.2), so he fails in that aspect of it
first of all. The Court cannot disregard a provision of the
Act. The Act says that you have to have a
certificate, if you do not have it, you are not entitled to the
disability tax credit.
[23] On the
other hand, it is possible that one might not be eligible for the
disability even if one has a doctor's certificate saying
that you have such a qualifying impairment. That depends upon the
evidence. The certificate is certainly a prerequisite to the
entitlement but it is not necessarily an absolute certainty that
one is entitled to the disability credit even if one has the
certificate.
[24] Secondly,
when the Court looks at section 118.4, in spite of the very able
argument put forward by this Appellant, which is very novel and
the first time that the Court has heard it, the Court is
satisfied that when section 118.4 talks about perceiving,
thinking and remembering in subparagraph 118.4(c)(i), it
is looking at them together. It is perceiving, thinking and
remembering in the mental sense. It is not perceiving, thinking
and remembering in respect of one of the physical senses, like
touching, smelling and hearing.
[25] Some of
the senses are referred to independently. Sight, hearing and
speaking are referred to. Walking and elimination are referred to
in different parts of this section. The only place it refers to
perceiving is in the context of subparagraph 118.4(c)(i),
and the Court believes that all three factors must be considered
together. It does not believe that these factors refer to the
sense of smell.
[26] If the
Court is wrong in the first argument, that the Appellant has not
met the prerequisite of the Act, the Court is satisfied
that the loss of smell, or a problem with smell or a disability
with respect to smell does not meet the requirements of the
section when the Court looks at and considers the whole of
section 118.4 and applies the evidence that it has before
it, to that section.
[27] The
appeal is dismissed and the Minister's assessment is
confirmed.
Signed at Ottawa, Canada, this 7th day of September 2001.
"T.E. Margeson"
J.T.C.C.
COURT FILE
NO.:
2000-4092(IT)I
STYLE OF
CAUSE:
Alwyn Gill and Her Majesty The Queen
PLACE OF
HEARING:
Edmonton, Alberta
DATE OF
HEARING:
February 27, 2001
REASONS FOR JUDGMENT BY: The
Honourable T.E. Margeson
DATE OF
JUDGMENT:
March 6, 2001
DATE OF WRITTEN REASONS: September 7,
2001
APPEARANCES:
For the
Appellant:
The Appellant himself
Counsel for the
Respondent:
John O'Callaghan
COUNSEL OF RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-591(GST)I
BETWEEN:
ROBERT D. PARTRIDGE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeals heard on August 8, 2001, at Kingston,
Ontario, by
the Honourable Judge Gerald J. Rip
Appearances
For the
Appellant:
The Appellant himself
Counsel for the Respondent: Rosemary
Fincham
JUDGMENT
The
appeal from the assessment made under Part IX of the Excise
Tax Act for the period from January 1, 1997 to December 31,
1999, is allowed, without costs, and the assessment is referred
back to the Minister of National Revenue for reconsideration and
reassessment in order to delete the penalty assessed pursuant to
section 275 of that statute.
The
appellant is entitled to no further relief.
Signed at Ottawa, Canada, this 24th day of August 2001.
J.T.C.C.
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