John Harrison v. Her Majesty the Queen, [1996] 3 CTC 2654 (Informal Procedure)

St-Onge J.T.C.C.: — The appeal of John Harrison was heard on the 8th of July 1996 in the city of Sault Ste. Marie, Ontario, and the issue is whether the Appellant is entitled to claim the mental or physical impairment credit for his 1991 and 1992 taxation years.

In rendering his decision to the effect that he was not entitled to a non-refundable tax credit, the Respondent alleges the following:

4. By Notice of Assessment dated August 4, 1993 the Minister of National Revenue (the “Minister”) initially assessed the Appellant’s 1991 income tax return.

5. In computing tax payable and non-refundable tax credits for the 1992 taxation year the Appellant claimed an amount of $4,233.00 in respect of a credit for mental or physical impairment, with respect to alcoholism.

6. By Notice of Assessment dated October 14, 1994 the Minister assessed the Appellant’s 1992 income tax return.

7. By an amended income tax return received November 18, 1994 the Appellant requested that the Minister reassess his 1991 taxation year to allow, in computing tax payable and non-refundable tax credits an amount of $4,118.00 in respect of a credit for mental or physical impairment, with respect to alcoholism.

8. The Appellant’s 1991 income tax return was reassessed by Notice of Reassessment dated February 14, 1995 with respect to matters that are not at issue in the appeal.

9. By a letter dated May 5, 1995 the Minister informed the Appellant that He was not entitled to the credit for mental or physical impairment for the 1991 and 1992 taxation years and subsequently, on May 11, 1995, reassessed the Appellant’s 1992 income tax return to disallow the said credit claimed.

10. The Appellant’s 1992 income tax return was further reassessed by Notice of Reassessment dated July 20, 1995 with respect to matters that are not at issue in the appeal.

11. In so reassessing the Appellant, the Minister made the following assumptions of fact:

(a) the facts herein before stated and admitted;

(b) the disability tax certificate form T2201, as prepared and signed by the Appellant’s physician, does not indicate that the Appellant was suffering from a severe mental or physical impairment and that the Appellant was not markedly restricted in his ability to perform a basic activity of daily living throughout the 1991 and 1992 taxation years;

(c) the Appellant is not entitled to claim the mental or physical impairment credit for the 1991 and 1992 taxation years.

At the hearing, the Appellant admits paragraph four to paragraph ten, and denies subparagraph 11(b). He filed a medical certificate to show that he had been suffering from a severe mental impairment, and he also filed a ruling from a Review Tribunal of Canada Pension Plan. The reasons for this decision are as follows. The reasons at page three of Exhibit A-2 are an integral part of my judgment.

The Appellant appeared without counsel. Mrs. J. Blais represented the Minister.

The Appellant has been an alcoholic for years. He has two children as set out in his application. He last worked in May of 1991. He testified that he was under the influence of alcohol until July 23, 1993 when he ceased drinking and has not drank since. Since July 23, 1993 he admits that he could work and therefore is not under any disability.

We find that the Appellant was disabled for many years. Under the statute he is deemed disabled 15 months prior to the month of application, namely November of 1993. We find that he is deemed disabled in August of 1992 and benefits would begin in December of 1992 and cease on July 23, 1993.

We would allow the appeal to that extent.

He testified that he had no money to produce an expert witness with respect to his illness for the period in dispute.

Upon cross-examination, he explained that his last work was in May 1991, that his two children were living with the mother and the marriage broke down. While at home, he was able to go to the store and pay for what he purchased. Thereafter, he did live in basement of friends.

From May 11 to July 1993, he saw a physician and was admitted for treatment. When he was an hour without alcohol, he had severe seizures.

When he lost his job with Revenue Canada, he received $36,000.00 and drank it all. He fractured his back and one arm. When outside his seizure, he was able to think. At times he was on hard rocks, but he was able to think and perceive and he knew where he lives. He was always able to go to store to buy beer.

Counsel for Respondent argued that the Appellant was not entitled to the credit under subsection 118 because he was not markedly restricted all or substantially all of the time to perform a basic activity of daily living such as 1) to perceive, to think, to remember, 2) to feed and dress himself,

3) to speak or to hear so as to be understood in a quiet setting, 4) to control his bowel or bladder functions, 5) to walk. And for greater certainty, no other activity, including working, housekeeping or social or recreational activity shall be considered as a basic activity of daily living. She admits that the Appellant did suffer from alcoholism, and had seizure when he was without drinking for awhile, but at times he was able to get dressed, to sign personal cheques, to move from one place to another.

By referring to the medical certificate, she said that there was no answer by the doctor to the question, was he able to perceive, think and remember, but he was able to eat and dress without supervision.

As to manage personal affairs, the doctor wrote he could not attend properly to personal care, social and economical necessities. Under number 11 he wrote, alcoholism, he was inebriated most of the time and was commonly on a decreased level of consciousness due to the alcohol.

Counsel for the Respondent did not have the opportunity to cross- examine the doctor as to the degree of incapacity of the Appellant’s mental functions. There is no doubt that at times the Appellant was in a decreased level of consciousness, he was drunk, but this does not mean that he was drunk all the time, and consequently markedly restricted all or substantially all of the time to perform a basic activity of daily living as mentioned in section 111.4 (c) and (d).

According to the evidence adduced, the Court is inclined to decide that the Appellant was not markedly restricted substantially all of the time to perform the basic activity of daily living. From May 1991 to July 1993, some 27 months, he was able most of the time to perform the basic activity of daily living without any help. The help he received was for him to stop drinking. The decision of the Review Tribunal does not help the Court to decide the degree of the Appellant’s mental impairment. They just found that the Appellant was deemed disabled in August 1992, and benefits would begin in December of 1992, and cease in July 23, 1993.

The onus of proof was on the Appellant and there is no evidence to prove that the Appellant did need help or was markedly restricted to perform the basic activity of daily living. Consequently, the appeal is dismissed.

Appeal dismissed.