Leduc v. The Queen, docket 98-2444-IT-I (Informal Procedure)

Date: 19991105

Docket: 98-2444-IT-I

BETWEEN:

BERTRAND LEDUC,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

Lamarre, J.T.C.C.

[1] This is an appeal from an assessment made by the Minister of National Revenue ("Minister") for the 1997 taxation year. The point at issue is whether, in computing his federal income tax for the 1997 taxation year, the appellant may, under sections 118.3, 118.4 and 118.8 of the Income Tax Act ("Act"), claim a transfer from his spouse Ginette Michalk of an unused tax credit in the amount of $719.61 for severe and prolonged physical impairment.

[2] According to a medical diagnosis made in the fall of 1997, Ms. Michalk suffers from gluten-sensitive enteropathy (better known as celiac disease). According to Dr. Patrick Godet, an internist specializing in gastroenterology, who testified as an expert, celiac disease is a severe and permanent impairment that causes total intolerance to the gluten found in wheat, barley, oats, rye and all their derivatives including starches. There is no known therapy or medication that can cure celiac disease or attenuate its effects. Abstinence from all products containing gluten must be strictly and completely observed as a result of a physical impairment of the intestine which is considered extremely serious. If this strict diet is not followed, patients suffering from the disease cannot absorb palliative substances and increase their risk of contracting intestinal and esophageal cancer.

[3] Laure Foucault, a dietician and member of the Quebec Celiac Foundation, also testified as an expert witness. She explained that grain derivatives, in which gluten is found, are used in a great many products prepared for consumption or in the preparation of basic ingredients used to prepare foods. A person suffering from celiac disease can consume no products or foods containing any trace amounts of these derivatives whatever.

[4] The four basic grains (wheat, barley, oats and rye), the processed foods containing starch from one of those grains (e.g., yogurt) and any baked goods made with the flour of one of those grains and vegetable proteins which may contain gluten may not be consumed. Gluten is found in 75 percent of grain products.

[5] Persons with celiac disease must ensure that the natural products they may consume (such as meat, poultry, eggs and milk) do not contain gluten once they have been processed or prepared for consumption.

[6] These patients must compensate for the range of grain products they cannot eat with replacement products (such as food made with corn, rice, tapioca or potatoes). These replacement products are not found in regular supermarkets, but rather in specialty stores (there are two in Montreal), and they are far more expensive. For example, white rice bread sells for $6.50, whereas regular bread costs approximately $1.50. Ms. Foucault calculates that it costs between $25 and $30 more per week for persons suffering from this disease to buy groceries.

[7] Ms. Michalk also testified. She said that she had experienced a very significant weight loss before it was discovered that she had celiac disease. She very strictly follows the prescribed diet, which places many constraints on the quality of her food and the time she devotes to feeding herself, and results in high costs. She calculates that these replacement products cost her an average of $100 a month, excluding the expenses involved in travelling to the two stores that specialize in selling them. When she buys groceries, she must read every label, which is very time consuming. She must adapt every recipe for her own consumption needs, which are not the same as those of the other members of her family.

[8] The disability tax credit certificate completed by Dr. Louis Trudelle, which was filed in evidence, states that Ms. Michalk's illness places severe and permanent dietary restrictions on her.

Analysis

[9] To be entitled to the credit for mental or physical impairment, a taxpayer must meet the conditions set out in subsection 118.3(1), which are as follows:

(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 not referred to in subparagraph (i) or (ii), 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 . . . .

[10] A severe and prolonged impairment is defined in subsection 118.4(1) 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.

[11] It is clear from Dr. Codet's testimony that celiac disease results in a severe and prolonged physical impairment. It therefore remains for me to determine whether the effects of the impairment are such that Ms. Michalk's ability to feed herself is markedly restricted. According to the Act, this will be the case if she is incapable of feeding herself all or substantially all the time, even with therapy and the use of appropriate devices and medication, without devoting an inordinate amount of time to the activity.

[12] According to Dr. Codet, there is no appropriate medication to cure celiac disease. Patients with the disease must live with this disability all their lives and can only alleviate their symptoms through a strict special diet.

[13] In the circumstances, can it be said that Ms. Michalk's ability to feed herself is markedly restricted because she must devote an inordinate amount of time to performing this activity?

[14] Létourneau J.A. of the Federal Court of Appeal wrote as follows on the notion of an inordinate amount of time in Robert C. Johnston v. The Queen, [1998] F.C.J. No. 169, 98 DTC 6169, at para. 18:

[para18] 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.

[15] Létourneau J.A. added the following at paras. 31–33 on what is meant by the ability to feed oneself:

[para31] . . . I agree with this statement of Bonner, T.C.J. in M.R. Hodgin v. The Queen [[1995] E.T.C. 515]:

I turn next to feeding oneself. That involves, in my view, something more than eating a meal prepared by another person. One cannot feed oneself unless one is capable of taking basic food stuffs in the form commonly available in a grocery store and cooking or otherwise preparing and setting out a meal. The test is feeding oneself, not simply eating a meal. The language of the legislation is clear in that respect. The requisite ability to feed oneself involves the ability to prepare a reasonable range of food and not just to prepare and set out snacks, junk foods or frozen dinners. Here the limitations on the movement of the Appellant's hands required the assistance of her husband in meal preparation to a degree that supports a conclusion that the Appellant was incapable of feeding herself. [Emphasis added.]

[para32] The notion of feeding, in my view, also involves the ability to prepare a meal which conforms to a medically prescribed diet and medication which maintains one's state of health or prevents its deterioration.

[para33] To limit the notion of feeding to the ability to eat a meal is to overlook the objective of the statute which, it bears repeating, is to financially assist those who, because of their disability, require assistance in fulfilling such a basic activity of daily living. To include the preparation of a reasonable meal in the notion of feeding is, on the contrary, fully consistent with such objective and the spirit of the disability credit.

[16] In the instant case, I find the evidence shows that, in order to feed herself (that is to say to take all the necessary steps to prepare meals suitable to her diet), Ms. Michalk must take much more time than healthy persons are normally required to devote to this activity. In my view, it requires a marked departure from normality.

[17] I am aware that this conclusion runs counter to two decisions of this Court (Hagen v. The Queen, [1997] CarswellNat 1305, [1997] T.C.J. No. 827, and Fernand McMaster v. The Queen, [1998] T.C.J. No. 301, [1999] 1 C.T.C. 2658). However, those two decisions were rendered under the informal procedure and are accordingly not to be treated as precedents (see section 18.28 of the Tax Court of Canada Act). I also feel that I can reach a different conclusion based on the evidence brought before me.

[18] As Létourneau J.A. wrote in Johnston, supra, at paras. 10-11:

[para10] The purpose of sections 118.3 and 118.4 is not to indemnify a person who suffers from a severe and prolonged mental or physical impairment, but to financially assist him or her in bearing the additional costs of living and working generated by the impairment. As Bowman, T.C.J. wrote in Radage v. R. [[1996] 3 C.T.C. 2510] at p. 2528:

The legislative intent appears to be to provide a modest relief to persons who fall within a relatively restricted category of markedly physically or mentally impaired persons. The intent is neither to give the credit to every one who suffers from a disability nor to erect a hurdle that is impossible for virtually every disabled person to surmount. It obviously recognizes that disabled persons need such tax relief and it is intended to be of benefit to such persons.

The learned Judge went on to add, at p. 2529, and I agree with him:

If the object of Parliament, which is to give to disabled persons a measure of relief that will to some degree alleviate the increased difficulties under which their impairment forces them to live, is to be achieved the provisions must be given a humane and compassionate construction.

[para11] Indeed, although the scope of these provisions is limited in their application to severely impaired persons, they must not be interpreted so restrictively as to negate or compromise the legislative intent.

[19] The evidence clearly shows that the appellant's spouse must bear additional costs of living and working generated by the impairment. The evidence also shows that Ms. Michalk's ability to feed herself every day is markedly restricted. Lastly, I agree with Judge Bowman's opinion in Radage v. The Queen, 96 DTC 1615, that, if there is doubt on which side of the line a claimant falls, the doubt should be resolved in favour of the claimant.

[20] For all these reasons, the appeal is allowed and the assessment is referred back to the Minister for reconsideration and reassessment on the basis that, in computing his federal income tax for the 1997 taxation year, the appellant is entitled, under sections 118.3, 118.4 and 118.8 of the Act, to claim a transfer from his spouse Ginette Michalk of an unused tax credit in the amount of $719.61 for severe and prolonged physical impairment.

Signed at Ottawa, Canada, this 5th day of November 1999.

"Lucie Lamarre"

J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 1st day of May 2000.

Stephen Balogh, Revisor