Brennan v. R., [1998] 1 CTC 2143

Bowman T.C.J.:

At the opening of trial, the appellant informed me that her married name was now Lana Brennan and I ordered that the name of the appellant in the style of cause be changed from Lana Cornect to Lana Brennan.

This appeal is from an assessment for 1993 and concerns the Minister of National Revenue’s refusal to allow the appellant a disability tax credit under section 118.3 of the Income Tax Act in respect of her daughter, Vanessa.

Vanessa was born on October 3, 1993. She was missing all the digits and the thumb of her right hand and virtually all of the rest of her hand. For all practical purposes she has no right hand. She is right-handed. According to her mother she is otherwise a normal child and her development appears, apart from the fact that she has no right hand, to have been normal.

She is now almost four years old. She has extreme difficulty in feeding herself and in dressing herself. Indeed from her mother’s description it appears to be impossible for her to do many of the things that one would naturally expect of a child of her age. She has a prosthetic. device on her right hand that is activated by muscular action in her lower forearm. This device, which is a kind of clamp, permits her to grasp things but she has no control over the degree of force exerted. Her mother gave an example of her attempting to pick up an egg. She stated that she would crush it. She can not write with her right hand, tie her shoes or do up buttons. She can eat with her left hand if her parents cut up the food for her. My brief description of the difficulties Vanessa has may appear to minimize or trivialize them. That is not my intent. I think her problems are enormous.

Her parents have taken her to specialists in Newfoundland as well as in Montreal and Toronto.

If Vanessa were an adult claiming the disability tax credit, I would have no difficulty in concluding that she was entitled to it. Mrs. Brennan mentioned a number of instances of which she was aware in which adults with only one hand have routinely been granted the tax credit under section 118.3. I do not regard such anecdotal material as having any particular evidentiary weight, but, assuming it to be accurate, it at least is illustrative of an administrative practice with which I agree. It has no influence on the decision that I have to make here.

By the age of four, it is clear that her impairment (which is obviously severe and prolonged) markedly restricts her ability to perform a basic activity of daily living. I would have no hesitation in concluding that her mother would be entitled to the credit if she claimed it for 1997. This conclusion is amply supported by the medical evidence, in the form of medical reports by specialists. Although these persons were not called as witnesses I permitted their reports to be put in evidence. Their admission is supported by the decision of the Federal Court of Appeal in Ainsley v. R. (May 26, 1997), Doc. A-610-96 (Fed. C.A.) in which Stone J.A. said:

In our view, given that the proceedings below were conducted in an informal way, it was not necessary in order for the letter to be admitted into evidence that its author be called Moreover, in the exceptional circumstances described above, the applicant should be given an opportunity before closing his case to call David Munro, who he claims will support his case and who would have been called had he known in good time that the outside bookkeeper was going to be called by the respondent.

The Federal Court of Appeal decision in Ainsley was followed and analyzed by Christie A.C.J.T.C. in Yakubu v. R. (September 5, 1997), Doc. 96- 4445(IT)I (T.C.C.) . In his reasons for judgment, the learned Associate Chief Judge observed at p. 6:

It does not follow that the fact that documents are entered in evidence as exhibits in the course of a trial that what is said therein by way of statements of fact must necessarily be taken by the Court as being true. Presumably this was the intent of the Court of Appeal in Ainsley.

He then referred to the decision of the British Columbia Court of Appeal in Bottrell v. Bottrell, (1996), 26 B.C.L.R. (3d) 364 (B.C. C.A.). I might observe that quite apart from subsection 18.15(4) of the Tax Court of Canada Act, which the Federal Court of Appeal in Ainsley interpreted to justify the admission of hearsay evidence without the necessity of calling the maker of the statement, the decisions of the Supreme Court of Canada in R. v. Smith [1992] 2 S.C.R. 915 (S.C.C.) and R. v. Khan [1990] 2 S.C.R. 531 (S.C.C.) have broadened the exceptions to the hearsay rule to cases in which necessity and reliability can be established. I think these two conditions have been met here. I do not of course regard the Ainsley decision as depriving a trial judge of an overriding discretion to assign little or no weight to hearsay evidence where such evidence would be of little probative value or where its admission would be unduly prejudicial to the opposing party, or where the nature of the evidence is such that it should be tested by cross-examination. Neither the judgment in Ainsley nor subsection 18.15(4) should be seen as requiring that so essential a bulwark of our legal system as the right of cross-examination be discarded in every case under the informal rules.

With respect to another evidentiary point, the appellant asked the family doctor, who signed the requisite certificate, to appear and testify. He undertook to do so, and she relied on him. He let her down and telephoned the court and, without apology or explanation, left a message that he would not be coming. I regard this medical person’s conduct as falling below the standards that one is entitled to expect from persons who hold themselves out as professionals. Had he been a member of the legal profession I would have reported him to the provincial law society. Since he was not under subpoena I could not, of course, not issue a bench warrant to compel his attendance. In light, however, of the Federal Court of Appeal decision in Calwell v. R. (1995), [1996] 1 C.T.C. 1 (Fed. C.A.), I offered to adjourn the case to permit Ms. Brennan to obtain a subpoena, but she chose to proceed without him. In light of the impressive documentary evidence from other medical persons as well as Ms. Brennan’s own testimony, I doubt that his evidence would have added significantly to the case.

As stated above, I would have no hesitation in concluding that Vanessa, as an adult or, indeed, at the age of four, would meet the criteria set out in sections 118.3 and 118.4. The problem, however, is this: the claim before me is for 1993, the year of Vanessa’s birth. By the end of 1993 she was only four months old. A four month old baby can perform none of the basic activities of daily living alone. Her powers of perception, thought and memory are rudimentary at best. She cannot feed herself or dress herself. She cannot speak. She communicates her feelings by crying. Her understanding of what adults say to her is almost non-existent even though she presumably can hear if she has normal hearing. She has no control over her bowel and bladder function. She cannot walk.

The inability of Vanessa to perform any of the activities enumerated in paragraph 118.4(1)(c) is attributable not to any impairment that she may have but to her age. Yet no one would seriously suggest that the parents of all children under the age of, say, one year, would be entitled to the tax credit under section 118.3.

There can be no doubt that this child has a severe and prolonged physical impairment which markedly restricted her ability to perform a basic activity of daily living by the time she is four years old. I have, however, concluded that the claim is premature. The child’s inability to perform an activity of daily living in the first four months of her life has nothing to do with her serious impairment.

In conclusion, therefore, although I have every sympathy for Vanessa and her parents, I do not think that the criteria in sections 118.3 and 118.4 have been met in 1993, although they have been met in 1997.

The appeal is dismissed.

Appeal dismissed.