Robillard v. R., [1997] 2 CTC 2067

Bowie T.CJ.:

Section 118.3 of the Income Tax Act (the Act) provides a deduction from income tax payable for individuals who suffer from a severe and prolonged mental or physical impairment. The amount of the deduction is not great. When first introduced in 1988 it was $550; it has since been increased to about $700. The requirements to qualify for it, however, are rigorous. To secure the deduction, the taxpayer, or in the present case his dependent son, must have a severe and prolonged mental or physical impairment which has the effect of markedly restricting his ability to perform a basic activity of daily living. He must also file with the Minister Of National Revenue a medical certificate, in prescribed form, attesting to the impairment. Section 118.4 places further restrictions on the availability of this modest tax credit. Since its amendment in 1994, applicable to the 1991 and subsequent taxation years, subsection 118.4(1) has read as follows:

118.4(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 may 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

(1) 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.

It is clear from the 1994 amendment, which introduced all of that part of subsection 118.4(1) which follows paragraph (a), that Parliament intended the deduction to be available only to individuals who suffer from the most extreme disabling conditions.

The Appellant in this case claims the tax credit due to the affliction of his son Jeffery, who suffers from hyperactivity combined with mild dyslexia. When the trial began neither Jeffery nor his attending physician was present. The trial was adjourned to permit the Appellant to arrange for the doctor’s attendance. At the resumed hearing, both the Appellant and Dr. Palframan gave evidence, and a Disability Tax Credit certificate completed by Dr. Palframan was entered in evidence. The claim is based upon subparagraph 118.4(l)(c)(i) of the Act, which requires that the individual be unable to perceive, think and remember in order to qualify for the tax credit.

Jeffery does not lack intelligence, but by reason of his dyslexia he is a poor learner. His hyperactivity has manifested itself in acute frustration at his learning difficulties, and in frequent temper tantrums. His father described in great detail the difficulties involved in raising a child with these two disabilities, the disruptive effect that Jeffery had on their family for many years as he was growing up, and the extraordinary expenses associated with his problems. Among other things, his tantrums often resulted in damage which had to be repaired. Two babysitters were required rather than one when their children were small, one for Jeffery and one for the other children. Special schooling to overcome the learning problems associated with dyslexia was very costly. His parents persevered, however, and by the time of the trial Jeffery was a relatively successful student, with the prospect of finishing high school in the near future, and being able to cope with the normal incidents of life. This is a tribute to his family, to his doctor, and to the school that he has been attending.

Dr. Palframan is a well-qualified child psychiatrist, and has attended Jeffery since 1987, when he was ten years old. His evidence was that from the beginning Jeffery exhibited the symptoms of hyperactivity, including aggressive behaviour, depression, a short attention span, and highly emotional behaviour. These symptoms could be only partly controlled by medication and counselling. In addition, he suffered throughout the same period from dyslexia, a specific reading disability. Dr. Palframan described this as a disease which affects the brain associations and prevents the patient from learning to read at a normal level of understanding. Patients who work hard, as Jeffery has, learn to read at a level of about grade four to grade six, sufficient to satisfy the requirements of everyday living.

With specific reference to Jeffery’s ability to think, perceive and remember, Dr. Palframan testified on cross-examination that Jeffery thinks, but cannot focus his thoughts on the topic at hand, is not a good problem solver, and is easily interrupted in what he is doing. He perceives too many things too intensely, and is unable to filter out useless information from that which is useful. As a result he is distracted from the task at hand. He remembers almost everything, but is unable to sort it in order of importance.

I am sure that Dr. Palframan was very sincere in his evidence. Nevertheless, I believe that he was more concerned with his feelings for his patient than he was for the very strict requirements of the Act. I, on the other hand, am bound to apply the Act the way Parliament wrote it, even though that often results in denying the tax credit to deserving individuals.

On the evidence before me I cannot conclude that Jeffery is unable to think, or to perceive, or to remember. There is no doubt that he has some difficulties in these areas, but Dr. Palframan’s evidence simply does not support the conclusion that he would like me to reach. Having difficulty in some aspects of mental activity is a long way from being unable to think. Having too many perceptions and remembering too much cannot be equated with being unable to perceive or to remember.

The appeal must be dismissed.

Appeal dismissed.