Date:
20010509
Docket:
2000-1502-IT-I
BETWEEN:
NADIRA
MARHRAOUI,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Reasons
for Judgment
Lamarre
Proulx, J.T.C.C.
[1]
This is an appeal under the informal procedure for the 1998
taxation year. The issue is whether the appellant is entitled to
a tax credit for a severe and prolonged physical
impairment.
[2]
In making the assessment for the 1998 taxation year, the Minister
of National Revenue ("the Minister") made the following
assumptions of fact set out in paragraph 6 of the Reply to
the Notice of Appeal ("the Reply"):
[TRANSLATION]
(a)
when she filed her tax return for the 1998 taxation year, the
appellant attached a T2201 F(98) form, the disability tax credit
certificate, which had been completed on February 22, 1999, by
Dr. Yves Chatelois, a licensed medical doctor, who stated
that the appellant was suffering from the after-effects of
poliomyelitis, which restricted her ability to walk;
(b)
however, based on the doctor's answers on the
T2201 F(98) form, it was not possible to conclude that the
appellant's ability to perform the basic activities of daily
living was markedly restricted.
[3]
In confirming the assessment for the taxation year at issue, the
Minister made the following assumptions of fact set out in
paragraph 7:
[TRANSLATION]
(a)
on September 20, 1999, the Minister sent Dr. Yves Chatelois a
questionnaire to fill out;
(b)
Dr. Chatelois filled out the questionnaire on October 8, 1999,
and stated that the appellant was able to travel 50 metres with
an orthosis if she rested a few times but that she was not unable
to walk;
(c)
the Minister determined that the appellant's ability to
perform the basic activities of daily living was not markedly
restricted during the year at issue.
[4]
The appellant works full-time as an accounting clerk and has a
seven-year-old son. In 1998, she was living with her brother, and
now she lives with a boyfriend.
[5]
Because the appellant contracted poliomyelitis at the age of 18
months, her right leg is paralysed from the hip to the foot. That
leg is undeveloped, and she needs an orthosis to help her walk.
(Based on what was said at the hearing, an orthosis is not an
artificial limb, which is known as a prosthesis.) The orthosis
bends, but this must be done manually.
[6]
The disability tax credit certificate was filed as Exhibit
A-1. It was signed by Yves Chatelois, a medical doctor. In
the medical diagnosis box, he stated the following:
[TRANSLATION]
Sequela of
poliomyelitis in the right leg. Must wear orthosis to get around.
Must limit movements. Has great difficulty going up or down
stairs.
[7]
The question with regard to walking is as follows: "Is your
patient able to walk, using an aid if necessary? (For example, at
least 50 metres on level ground.)" The doctor answered:
[translation] "Yes, but moves
slowly and cautiously to avoid falling".
[8]
Exhibit A-2 is a questionnaire that the Department of
National Revenue sent to the doctor who signed the certificate.
It is dated September 20, 1999. This time, his answers were as
follows:
[TRANSLATION]
Q.
Was your patient able to walk 50 metres using a special aid (e.g.
cane, crutch, prosthesis, orthosis or walker)?
A.
No.
Q.
Please explain and indicate the type of aid used and how often it
was used.
A.
Orthosis right lower limb. Cannot walk 50 metres at a time
without stopping, even with orthosis.
[9]
The doctor also stated in the questionnaire that the patient was
able to walk 50 metres with rest periods.
[TRANSLATION]
Q.
Did your patient take an inordinate amount of time to walk 50
metres even with the use of therapy, medication or
aids?
A.
Because of the weight of the prosthesis, which extends from the
bottom of the foot to the hip, muscle weakness and pain, it
sometimes takes a long time to cover the distance in
question.
Q.
Indicate the percentage of time in 1998 during which your patient
was UNABLE to walk 50 metres even with the use of aids, devices,
medication or therapy.
A.
Is not unable to walk, but sometimes, in certain conditions
(slippery, wet, frozen or uneven pavement), the time needed may
vary.
[10] The
appellant said that the prosthesis is not an aid with which she
feels at ease. She finds it heavy and uncomfortable but
indispensable. At work, she is not far from the photocopier and
the fax machine, but her co-workers often help her out. During
fire drills, she is the last one to come down. She is not
involved in any sports and takes a car wherever she goes. She
always wears pants and boots. She is a rather frail person.
Although 1.67 metres tall, she weighs 45 kilograms. She is
someone who needs assistance in her everyday life. She rarely
goes to the grocery store and never goes by herself. As for
housework, her boyfriend or someone else does the vacuuming. When
she gave birth to her son, her mother came over from Morocco and
helped her for a year and a half. When her spouse was in Spain,
she was unable to keep her son. She cannot use public
transportation. In the wintertime, because it is more difficult,
she gets around very little.
Analysis
[11] Both
parties referred to the decision by the Federal Court of Appeal
in Johnston v. Canada, [1998] F.C.J. No. 169, in
particular paragraphs 18, 22 and 23:
No definition has
been given of what constitutes an inordinate amount of time in
the performance of the basic activities of daily living. In my
view, the expression "inordinate amount of time" refers
to an excessive amount of time, that is to say one much longer
than what is usually required by normal people. It requires a
marked departure from normality.
...
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.
I am satisfied that
it was proper for the learned Tax Court Judge to take into
account other activities of the Applicant such as his driving and
his frequent visits to play bridge or attend therapy for the
purpose of determining his ability to walk and the amount of
walking done by him.
[12] This is
not an easy case to decide since there are examples of people who
have lost a leg, and who not only walk, but go jogging. At the
hearing, the appellant moved around slowly, leaning on furniture,
and asked to testify sitting down. She said that a cane would not
help her walk. It is possible that her undeveloped limb, which
has no muscle strength, causes her more trouble than in the case
of an amputation. Given the orthosis she must wear on her leg,
walking requires an inordinate amount of effort. It extends from
the bottom of her right foot to her hip.
[13] As
counsel for the respondent noted, a number of disability tax
credit cases turn on their own facts. One person may walk fairly
well with an artificial leg, while others may have a great deal
of difficulty. It may depend on the person's own muscle
strength and the type of prosthesis or orthosis
required.
[14] In the
present case, in view of the type of orthosis required because of
the existing but undeveloped limb, the evidence adduced by the
appellant concerning the problems she has getting around, and the
doctor's written answers, I believe it can be accepted that,
for this appellant, walking is possible only with an inordinate
amount of effort.
[15] The
appeal is allowed without costs.
Signed at
Ottawa, Canada, this 9th day of May 2001.
J.T.C.C.
[OFFICIAL
ENGLISH TRANSLATION]
2000-1502(IT)I
BETWEEN:
NADIRA
MARHRAOUI,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Appeal heard
on March 8, 2001, at Montréal, Quebec, by
the
Honourable Judge Louise Lamarre Proulx
Appearances
Agents for
the
Appellant:
Marie-Claude Lambert
Rachelle Pitre
Counsel
for the
Respondent:
Pascale O'Bomsawin
JUDGMENT
The appeal from the assessment made under the Income Tax
Act for the 1998 taxation year is allowed, without costs, in
accordance with the attached Reasons for Judgment.
Signed at
Ottawa, Canada, this 9th day of May 2001.
J.T.C.C.
[OFFICIAL
ENGLISH TRANSLATION]
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