Date: 19971104
Docket: 96-3983-IT-I
BETWEEN:
ROGER ROUSSEL,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
G. Tremblay, J.T.C.C.
Issue
[1] The issue is whether, in computing his income for the 1994
taxation year, the appellant is justified in claiming a $719.61
non-refundable tax credit for mental impairment under sections
118.3 and 118.4 of the Income Tax Act (the
²Act²).
[2] The appellant allegedly did not file a medical certificate
despite being requested to do so twice by the respondent.
According to the respondent, the file was given to physicians at
Human Resources Development Canada at the notice of objection
stage. Based on the information received, the appellant did not
have a severe and prolonged mental or physical impairment the
effects of which were such that his ability to perform a basic
activity of daily living was markedly restricted.
[3] According to the appellant, however, two psychiatrists
found that he had a total and permanent disability. He said that
this was the reason he lost his job with the Government of
Quebec.
Burden of Proof
[4] The appellant bears the burden of showing that the
respondent’s assessments are unfounded. This burden of
proof derives from a number of judicial decisions, including that
of the Supreme Court of Canada in Johnston v. Minister of
National Revenue.[1]
[5] In Johnston, the Court held that the facts assumed
by the respondent to support the assessments or reassessments are
also deemed to be true until proven otherwise. In the case at
bar, the facts assumed by the respondent are described in
subparagraphs (a) and (b) of paragraph 3 of the Reply to the
Notice of Appeal. That paragraph reads as follows:
[TRANSLATION]
3. In making this reassessment for the 1994 taxation year, the
Minister relied, inter alia,on the following facts:
(a) on November 9, 1994, and July 4, 1995, as part of a review
program for the 1994 taxation year, the Minister requested the
appellant to provide an original medical certificate (T2201) so
that his application for a non-refundable disability tax
credit could be considered;
(b) since the appellant did not respond to the
Minister’s requests, the Minister issued a notice of
reassessment dated October 2, 1995, denying the appellant the
$719.61 non-refundable disability tax credit.
Facts in Evidence
[6] The appellant was the only person who testified. He
testified calmly and expressed himself clearly.
[7] During his testimony, he filed a series of documents,
Exhibits A-1 to A-8, consisting primarily of letters
between him, his psychiatrists and his attending physician. A
29-page series of letters to the Tax Court of Canada and the
respondent was also filed as Exhibit A-9. The documentation
provided shows that the appellant was examined by four
psychiatrists. However, he filed medical reports by only two
psychiatrists, Dr. Pierre Dorion (Exhibit A-7) and
Dr. Frédéric Grunberg (Exhibit A-8).
[8] The comments and conclusion on pages 5-6 of Dr.
Grunberg’s report provide a good summary of his
position:
[TRANSLATION]
COMMENTS
Roger Roussel appears to be an intelligent person who has
managed to educate himself and become independent in spite of
adversity and deprivation in his childhood.
He has been working for the Government of Quebec for
27 years but, according to his own perceptions of himself,
has not obtained the recognition and credit he deserves. He feels
that he has been stuck for 14 years in a position as an
administrative specialist. In addition, Mr. Roussel has a
personal profile characterized by rigidity, a superiority complex
and a lack of flexibility and adaptability in an organization
such as a government bureaucracy.
In this inevitably conflictual work context, and given
Mr. Roussel’s personality traits, he has insidiously
developed a mental disorder characterized by querulousness that
leads him to become totally involved in endless litigation. This
pathology corresponds to what is called querulous
paranoia. It is a rather uncommon mental disorder
characterized simply by a highly systematized delusion of
persecution that does not affect intellectual functions or
judgment outside the sphere of the delusion. However, this
pervasive delusion influences the behaviour of the person
affected, who will spend a good part of his or her life seeking
justice by getting involved in virtually endless legal
proceedings, to his or her own detriment. Unfortunately, this is
a chronic illness that does not respond well to psychiatric
treatment.
CONCLUSION
I therefore conclude that because of his mental disorder,
Roger Roussel is unable to resume his work as an administrative
specialist with the MEQ [Ministère de
l’Éducation of Quebec].
Having regard as well to the chronic nature of his illness and
his guarded prognosis, I am of the opinion that
Roger Roussel should be considered totally and permanently
disabled.
[9] Dr. Dorion reached the same conclusion in his four-page
report.
[10] However, neither Dr. Dorion (Exhibit A-6) nor Dr.
Grunberg (Exhibits A-1 and A-2) wanted to complete
form T2201, “Disability Tax Credit Certificate”,
which must be completed by the attending physician. The two
psychiatrists argued that they were not attending physicians or
acted only as experts.
[11] According to the appellant, his attending physician did
not want to complete the form either, since he knew nothing about
psychiatry.
[12] As Exhibit I-1, the respondent filed a form T2201 dated
April 20, 1995, but the form was completed by the appellant
himself, who answered “yes” to the following
questions: (1) whether the patient has a prolonged impairment;
(2) ... a severe impairment; and (3) ... markedly.
[13] However, when he testified the appellant admitted, with
reference to the form, that he does not have a disability
relating to vision (although he wears corrective lenses),
speaking, hearing or walking. Moreover, his bowel and bladder
functions are not impaired and he can feed and dress himself
easily without anyone’s help.
[14] As Exhibit I-2, the respondent filed a form T749,
“Transmittal Sheet - Disability Tax Credit”,
from Dr. J. Harris of Human Resources Development Canada. It is
dated October 19, 1995, and was received by the respondent on
October 24, 1995. On the basis of the questionnaire
received, the physician recommended that the tax credit be
denied.
Act
[15] The issue in this case arises under subsections 118.3(1)
and 118.4(2) of the Act. They read as follows:
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) a medical doctor, or where the impairment is an
impairment of sight, a medical doctor or an optometrist, 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), 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.
118.3(4) Department of National Health and Welfare. The
Minister may obtain the advice of the Department of National
Health and Welfare as to whether an individual in respect of whom
an amount has been claimed under subsection (1) or (2) has a
severe and prolonged impairment, the effects of which are such
that the individual’s ability to perform a basic activity
of daily living is markedly restricted, and any person referred
to in subsection (1) or (2) shall, on request in writing by that
Department for information with respect to an individual’s
impairment and its effects on the individual, provide the
information so requested.
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.
Analysis
[16] One of the arguments made by the appellant was as
follows:
[TRANSLATION]
Judge Tremblay, what qualifications do you have to contradict
the conclusions in psychiatrists’ reports stating that I
have a total and permanent disability?
The Court notes that this question is a very sensible one that
shows the appellant is thinking clearly.
[17] The issue that the psychiatrists had to resolve was
whether the appellant was able to continue doing his work as an
administrative specialist with the Ministère de
l’Éducation of Quebec (MEQ).
The psychiatrists’ conclusions are clear: Mr. Roussel
cannot continue working.
[18] The issue that this Court must resolve is whether the
effects of the appellant’s impairment are such that his
ability to perform a basic activity of daily living is markedly
restricted within the meaning of
paragraphs 118.3(1)(a.1) and 118.4(1)(c) of
the Act.
[19] In his testimony, the appellant was very honest and in
substance admitted that the effects of his impairment are not
such that his ability to perform a basic activity of daily living
is markedly restricted [para. 13].
Moreover, no attending physician wanted to file a report
stating that this was the case, as required by paragraph
118.3(1)(a.2) of the Act [para. 11].
[20] His impairment actually relates to the performance of his
work as an administrative specialist with the MEQ.
However, work-related activities are excluded, as are
housekeeping and social and recreational activities
(118.4(1)(d)).
Conclusion
[21] For the above reasons, the appeal is dismissed.
“Guy Tremblay”
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true this 12th day of May 1998.
Benoît Charron, Revisor
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