Whalen v. The Queen, docket 1999-3660(IT)I (Informal Procedure)

1999-3660(IT)I

BETWEEN:

LEO WHALEN,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeals heard on May 25, 2000 at St. John's, Newfoundland, by

the Honourable Judge Terrence P. O'Connor

Appearances

Agent for the Appellant:                                 Randy Squires

Counsel for the Respondent:                         Christa MacKinnon

                                                                   Scott McCrossin

JUDGMENT

          The appeal from the assessment made under the Income Tax Act for the 1996 taxation year is dismissed and the appeal from the assessment made under the Income Tax Act for the 1997 taxation year is allowed and the matter is referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.

Signed at Ottawa, Canada this 2nd day of June 2000.

J.T.C.C.

Date: 20000602

Docket: 1999-3660(IT)I

BETWEEN:

LEO WHALEN,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

O'Connor, J.T.C.C.

[1]      These appeals were heard at St. John's, Newfoundland on May 25, 2000.

Issue

[2]      The issue is whether. in the years 1996 and 1997, the Appellant is entitled to the disability tax credit contemplated in subsections 118.3(1) and 118.4(1) of the Income Tax Act ("Act"). Testimony was given by the Appellant's wife, by the Appellant's agent and friend, Randy Squires, and by Dr. Michael Nurse, a psychiatrist. Several exhibits were filed.

Facts

[3]      It appears from the evidence that the Appellant, in the 1996 and 1997 taxation years, suffered from a severe case of asthma and, further, commencing in March of 1997, he suffered from psychiatric problems identified by Dr. Nurse as generalized anxiety disorder and depression, causing him a considerable level of incapacity.

[4]      With respect to the asthma condition, the various disability tax credit certificates provided by Dr. H.W. Edstrom in the 1996, 1997 and 1998 years (Exhibits R-1, R-2 and R-3) indicate that the disability resulting from the asthma related to the function of walking. In all of these certificates, Dr. Edstrom indicates in the box dealing with walking that the Appellant was able to walk, using an aid if necessary, at least 50 metres on level ground. In each certificate, his answer to that question is "yes". In the 1996 certificate, Dr. Edstrom adds the words "when he is at his best"; in the 1997 certificate he indicates that the Appellant must walk slowly when his asthma exacerbates and in the 1998 certificate he indicates that the Appellant is short of breath with wheezing and cough which periodically gets worse. However, it remains that Dr. Edstrom, in each of the three certificates, indicates that the Appellant was able to walk at least 50 metres on level ground and he answers "No" to the question "Is the impairment severe enough to restrict the basic activity of daily living identified above, all or almost all the time, even with the use of appropriate aids, devices, medication, or therapy?"

[5]      Dr. Nurse testified that the Appellant's mental problems started as early as March 21, 1997 when he was admitted to hospital. Further, in Exhibit A-1, Dr. Nurse sets forth the dates of various hospital admissions for the Appellant to the Health Science Centre. These admissions commenced on March 21, 1997 and continued to at least February 11, 2000. Exhibit A-1 also indicates that, in addition to being hospitalized, the Appellant was followed in the community by a mental health nurse who visited him at home. Dr. Nurse essentially indicated that starting at least in March of 1997 the Appellant was not able to look after himself and required the assistance of his wife in many aspects of every day living. This testimony was supported by the testimony of the Appellant's wife and that of Randy Squires.

Analysis and Decision

[6]      In my opinion in the 1996 year the Appellant's ability to perform a basic activity of daily living was not markedly restricted as defined in subsection 118.4(1) of the Act. For certain he had asthma and had difficulties walking but the basic conclusion from all of the three certificates signed by Dr. Edstrom, is that his walking was not so severe as to qualify for the purposes of the Act. Moreover, Dr. Edstrom answered "No" to the question cited above.

[7]      With respect to the 1997 year, relying mostly on the testimony of Dr. Nurse, I find that, due to the continuing asthma condition and the mental condition which commenced early in 1997, the Appellant's ability to perform a basic activity of daily living was markedly restricted as defined in subsection 118.4(1) of the Act.

[8]      Consequently the appeal for the 1996 taxation year is dismissed and the appeal for the 1997 taxation year is allowed.

Signed at Ottawa, Canada this 2nd day of June 2000.

J.T.C.C.

COURT FILE NO.:                             1999-3660(IT)I

STYLE OF CAUSE:                           Leo Whalen and The Queen

PLACE OF HEARING:                      St. John's, Newfoundland

DATE OF HEARING:                        May 25, 2000

REASONS FOR JUDGMENT BY:     The Honourable Judge T.P. O'Connor

DATE OF JUDGMENT:                     June 2, 2000

APPEARANCES:

Agent for the Appellant:             Randy Squires

Counsel for the Respondent:      Christa MacKinnon

                                                Scott McCrossin

COUNSEL OF RECORD:

For the Appellant:

Name:                

Firm:                 

For the Respondent:                  Morris Rosenberg

                                                Deputy Attorney General of Canada

                                                          Ottawa, Canada