Ravenda v. R., [1998] 1 CTC 3007

Taylor T.C.J.:

This is an appeal heard in Halifax, Nova Scotia on July 14, 1997 against an assessment under the Income Tax Act (the “Act”) in which the Respondent disallowed the claim for the Disability Tax Credit for the year 1994 as described in subsection 118(1) of the Act.

The Respondent’s Reply to Notice of Appeal includes the following: 5. In so reassessing the Appellant for the 1994 taxation year, the Minister made the following assumptions of fact:

(a) the Appellant claimed the Disability Amount in respect an impairment to mental functions;

(b) the Disability Tax Certificate does not identify any condition which is the cause of the impairment described in subparagraph (a);

(c) the said impairment did not markedly restrict the Appellant’s ability to perform a basic activity of daily living;

(d) the T2201, Disability Tax Credit Certificate, dated June 9, 1995 and signed by the Appellant’s doctor does not indicate any condition which is the cause of the impairment and does not indicate that a basic activity of daily living is impaired;

(e) the Appellant was not entitled to claim the Disability Amount the 1994 taxation year.

The particularly critical — somewhat ambiguous — portions of the Disability Tax Credit Certificate - Form 2201 completed by Dr. Zitner were:

4. Mental functions

Is your patient able to think, perceive, and remember, using medication or therapy if necessary? (For example, can manage personal affairs or do personal care without supervision.)...YES

9. 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?... YES

The Appellant testified for herself, describing the condition from which she suffered, and indeed had suffered for many years as “manic depression”. She also described for the Court the lengthy list of medication prescribed for her and which she took daily. She had difficulty thinking, perceiving and remembering. She did live alone and generally looked after herself, albeit with difficulty. She attended church, and noticed some difficulty with her hearing on some occasions.

Dr. Zitner, called by the Respondent was trained in psychology, but now with a general family medical practice answered questions regarding the above Form 2201 information, but did not indicate any moderation in her professional view that with the prescribed medication, the Appellant was capable of thinking, perceiving, and remembering adequately to manage her own personal affairs, and personal care. In fact, it was clear to Dr. Zitner, from her own dealings with Miss Ravenda, that the Appellant did exactly that. Dr. Zitner gave no support for the somewhat different view expressed from question (9) above, but it was indicated this may have confused the Appellant and her advisor, bringing on this appeal.

Analysis

I will only note that the Appellant in Court, while admittedly with difficulty to some extent, carried on her testimony appropriately. She was helpful and forth-coming in reply to questions. Further, I would refer to the recent case of Radage v. R., a Tax Court judgment [Now reported [1996] 3 C.T.C. 2510 (T.C.C.)] (July 12, 1996), 95-1014(IT)I (T.C.C.), in which the learned Judge Bowman made an exhaustive analysis of the three critical words “perceiving, thinking and remembering” as they might be construed in the context of section 118 of the Act before allowing that appeal. I would not attempt to add further to that substantive review. I do emphasize and adopt however, the general criteria identified by Judge Bowman:

...of such a severity that it affects and permeates his or her life to a degree that it renders that person incapable of performing such mental tasks as will enable him or her to function independently and with reasonable competence in everyday life.

The condition of Miss Ravenda as I assess it to be, together with the testimony and evidence available does not meet that standard even as a guideline. Miss Ravenda is able to function independently and she does demonstrate reasonable competence in her daily living.

The appeal is dismissed.

Appeal dismissed.