Tremblay T.C.J.:
1 This appeal was heard under the informal procedure at Montréal, Quebec on April 29, 1997.
1. Point at issue
2 According to the Notice of Appeal and the Reply to the Notice of Appeal, the point at issue is whether the appellant is well founded to claim the amount of $719.61 (17% of $4,233) for a disability amount transferred from a dependant other than his spouse for each taxation year 1993 and 1994 respectively.
3 The appellant contends that his child's right hand has only one finger and it is non functional. Indeed, he is missing 3 fingers and a thumb. He has extreme difficulty in daily functions such as dressing, feeding, etc.
4 The respondent disallowed the appellant's claims for both years on the basis that the child is not markedly restricted in performing the basic activities of daily living.
2. Burden of proof
5 2.01 The appellant had the burden to show that the respondent's decision was ill-founded pursuant to a decision of the Supreme Court of Canada in Johnston v. Minister of National Revenue, [1948] S.C.R. 486, 3 DTC 1182,[1948] C.T.C. 195 (S.C.C.).
6 2.02 Consequently, the facts on which the respondent relied in order to make his decision are deemed to be true unless proven otherwise. The facts of the respondent described in subparagraphs (a) to (c) of paragraph 4 of the Reply to the Notice of Appeal were admitted or denied by the appellant as follows:
4. In so establishing the reassessments for the 1993 and 1994 taxation years, the Minister made the following assumptions of fact:a) the Appellant's son as per the Disability Tax Credit Certificate (T2201) can still function in a normal way, for example, he has no difficulty with vision, walking, talking, hearing, mental and bowel & bladder functions; [ admitted but no feeding, no dressing]
b) therefore the Appellant's son is not markedly restricted in performing the basic activities of daily living; [ denied]
c) consequently, the Minister refused the Appellant's claim of $719.61 (17% of $4,233) for the Appellant's son for the calculation of the non-refundable tax credits for the 1993 and 1994 taxation years. [ admitted it is the decision of the Minister but it is not a good decision]
3. Facts
7 3.01 The appellant testified that when his son Raffaele was born in May 1993, he was missing three fingers and the thumb of the right hand. The middle finger is not functional because it remains bent. As Exhibit A-1, he filed a photo of both hands taken before coming to Court.
8 3.02 He filed as Exhibit A-2 the T 2201 form filled in by Doctor Claude Lavallée. Polyclinique St. Eustache on October 19, 1995. On Part A of the form, he gave the names of Doctor Gilles Martel and of Doctor Wiltshire (Hospital Shriners for Disabled Children) as medical doctors who are aware of Raffaele's impairment.
9 3.03 Part B of the form is filled as follows:
— Part B— Continued (To be completed by a medical doctor or an optometrist)
Indicate medical diagnosis relevant to the impairment and describe aids used:
6. Feeding& dressing
a) Is your patient able to feed himself/herself, using an aid if necessary?
No
b) Is your patient able to dress himself/herself, using an aid if necessary?
No
8. Has the impairment lasted, or is it expected to last, for a continuous period of at least 12 months?
Yes, more than 12 months.
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
10 3.04 The witness explained Raffaele's difficulty to feed and dress himself. He always needs another person. Moreover he is right-handed. The child needs help for his nature's needs.
11 The appellant said he claimed the same non refundable tax credit for the years 1995 and 1996.
12 3.05 The appellant also filed as Exhibit A-3 a letter dated April 21, 1997, concerning amongst others a surgery done in 1996. It reads as follows:
Re: Corbisiero, Raffaele
To whom it may concern:
Raffaele is a 3 year and 11 month-old boy who is born with absent digits in the right hand. Only the middle finger is present. There is no thumb, index or little finger and only a minimal portion of the ring finger present.
This is a congenital anomaly which has left Raffaele with marked dysfunction of the right hand.
In September 1996, I did surgery to deepen the web space between the first metacarpal and the second metacarpal, so that hopefully he will be able to grasp objects in his right hand. This surgery has given him slightly improved function, but he still remains with very significant functional deficit in the right hand. He has no other congenital anomalies that we have detected to date.
In spite of the surgery, Raffaele will continue to have significant dysfunction of his left hand due to the missing parts for the rest of his life.
I understand that Mr. Corbisiero is appealing to the Tax Court of Canada the medical disability of Raffaele. I do not think that my appearance as an expert witness in this case would be necessary. If Raffaele is brought to the Tax Court, the judge and any other layman in the Court should be able to see by direct observation that there is a marked congenital abnormality that leaves Raffaele with significant dysfunction of the left hand.
4. Law - Analysis
4.01 Law
13 The sections of the Income Tax Act involved in the present case are sections 118.3 and 118.4. They read as follows:
118.3: Credit for mental or physical impairment.
(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.
118.4: Nature of impairment.
(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.
4.02 Analysis
14 Counsel for the respondent explained the decision not to allow the credit is based on the fact that Raffaele, born in May 1993, was only seven months old at the end of 1993. He concluded that every baby of that age has to be fed and dressed by another person. I agree with that conclusion.
15 He contended it is the same thing for the year 1994. Then I do not agree.
16 Probably even certainly when the left hand “will take its responsibility” Raffaele will become more independent. This may take some time.
5. Conclusion
17 The appeal is dismissed for the 1993 taxation year and is allowed for the 1994 taxation year.
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