Lamarre Proulx T.C.J.:
1 This is an appeal under the informal procedure for the 1989 and 1990 taxation years. The point at issue is whether the appellant is entitled, for these taxation years, to a tax credit for persons with a severe and prolonged mental impairment within the meaning of sections 118.3 and 118.4 of the Income Tax Act (the “Act”).
2 There was another point at issue as to whether the appellant was entitled to a medical expense credit, whereas she filed no receipts for those expenses as required by section 118.2(1) of the Act. Through her counsel, the appellant discontinued this portion of her appeal since she could not prove the medical expenses for which she was claiming a credit by filing receipts therefor.
3 This appeal was heard in two stages. In the first, the appellant had filed neither the medical certificate, form T2201, nor the receipts for medical expenses. In the second, the certificate was filed, but not the receipts.
4 With respect to the first point at issue, the appellant's agent filed as Exhibit A-2 the certificate (form T2201) signed by the appellant's attending physician, a psychiatrist, on January 30, 1996. She was diagnosed as having a “serious paranoid condition” and “chronic major depression”. The psychiatrist describes the effects of the impairment as follows: “patient anxious, depressed and apathetic”. He also certifies that she was suffering from a prolonged impairment that markedly restricted her ability to perform a basic activity of daily living.
5 Exhibit A-1, a letter dated November 29, 1995 from the same attending physician, describes repeated instances of hospitalization in psychiatric facilities in 1986, 1987, 1991, 1992 and 1993.
6 Exhibit A-3 is the appellant's medical record, most of which is for the years prior to the years in issue, except for the psychiatric examination that followed the appellant's institutionalization, at her daughter's request, in 1991. The diagnosis in that case was that the patient was deemed to be competent, responsible for her actions and able to live with open door treatment. It may be seen from the medical record that the appellant's psychiatric problems date back to at least 1982.
7 The appellant's agent indicated to the Court that the appellant is not really independent, although she does live alone. The appellant still needs a support group to help her function more or less normally.
8 Counsel for the respondent informed the Court that the Department of Health had communicated with the appellant for the purpose of obtaining answers to its questionnaire, but in vain. To this, the appellant's agent answered that she did not consider it useful to ask the physician to comply with this request once more because the same questions would be asked again. I did not learn with any certainty from counsel for the respondent whether this questionnaire was different from the certificate previously completed by the physician because the correspondence was not filed.
Analysis
9 Subsection 118.3(1) of the Act, which provides for the tax credit for individuals with a severe impairment as well as the conditions for its application, reads as follows:
118.3(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,
A × $4,118
A is the appropriate percentage for the year.
10 One must refer to paragraph 118.4 of the Act to understand the meaning of a severe and prolonged impairment that markedly restricts an individual's ability to perform a basic activity of daily living as well as the meaning of basic activities of daily living:
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 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.
11 If, with the aid of appropriate medication, the appellant, who suffers from a mental illness, can carry on the basic activities of living which, in her case, are perceiving, thinking and remembering, she is not entitled to the tax credit.
12 The Minister of National Revenue (the “Minister”) is entitled, according to subsection 118.3(4) of the Act, to obtain the advice of the Department of Health and Welfare on the attending physician's certificate.
118.3(4) 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.
13 The onus is on the appellant and her agent to prove that, even with medication, the appellant cannot carry on the activities of perceiving, thinking and remembering.
14 If, through her agent, the appellant does not answer the Department of Health's questionnaire or does not ask the attending physician to answer it, the Court could conclude that the appellant did not answer the Department of Health's questions because she could not establish that she cannot perceive, think and remember even with the aid of appropriate medication.
15 I believe it would have been preferable that the appellant's agent act on the Department of Health's questionnaire. However, I accept her answer that she did not do so because the questionnaire was similar to that completed by the attending physician in January 1996 and that she hesitated to ask him to complete another questionnaire in which the same questions and answers were repeated. This answer is accepted in a context of weak evidence in which the correspondence intended to obtain the answers to the questionnaire and the questionnaire itself were not filed.
16 There are degrees of mental illness and a person suffering from such an illness may often overcome the effects of that illness with the aid of medication and lead a nearly normal life. However, care must be taken in analyzing these cases. An individual may suffer from a mental impairment that is not so severe as to require close treatment, but nevertheless sufficiently severe to require essentially the support of other persons or organizations to enable the person to live a near normal life.
17 This may explain why, in 1991, a physician was able to find that the appellant was competent and could live with open door treatment and why, otherwise, the attending physician certified that the appellant suffered a mental impairment that markedly prevented her from carrying on her activities of daily living, more particularly, perceiving, thinking and remembering.
18 The respondent adduced no evidence contrary to the attending physician's certificate. It must be kept in mind on this point that the first fact stated in the Reply to the Notice of Appeal in explaining how the assessment was made was that the appellant had not filed a T2201 form. The certificate filed was made in 1996, but a similar certificate was issued in 1993 for Revenue Quebec.
19 After seeing and hearing the appellant and reading the medical record and the attending physician's certificate and letter describing repeated hospitalization in psychiatric facilities since he had been her attending physician in the years since 1987, it is my view that nothing in the evidence can lead me to conclude that the attending physician's certificate does not reflect the actual situation.
20 The appeal is allowed with costs.
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