McDermid v. The Queen, 2014 DTC 1191 [at 3724], 2014 TCC 264 (Informal Procedure)
Regarding the taxpayers' claim for disability tax credits for two of their children, Woods J allowed the credits for one child and not the other.
She allowed the credits for the son, whose severely limited auditory working memory meant that he required frequent supervision in, for example, his morning routine and the classroom.
She disallowed the credits for the daughter, whose principal problems were heightened anxiety and slow learning - although she noted that the daughter's status could change as she aged and her daily activities became more complex (para. 24).
The physician's filling in a checkbox on a form indicating an "intermediate" level of disability was not fatal to the taxpayer's appeal (paras. 13-14) - see also Benoit.
Subsection 118.4(1) - Nature of impairment
Canada v. Marceau, 2008 DTC 6511, 2007 FCA 352
Substantial time was spent in preparing anallergic foods for the taxpayer's daughter, who had 38 food allergies. The taxpayer did not in light of s. 118.4(1)(e) qualify for the disability tax credit given that the significant meal preparation time related to a dietary restriction.
The Tax Court had not erred in finding that the taxpayer, whose nose was crushed in an accident leaving him with a permanent loss of the sense of smell, was not entitled to the disability tax credit. "The discretion to decide these matters resides primarily in the Minister, not this Court (p. 5418)".
Canada v. Hamilton, 2002 DTC 6836, 2002 FCA 118
The inordinate amount of time required by the taxpayer to find and procure foods that were gluten-free qualified him for the credit on the basis that this effort was part of the process of feeding himself.
Johnston v. Canada, 98 DTC 6169 (FCA)
The taxpayer, who suffered from spinal epiphyseal dysplasia was found to have a markedly restricted ability to walk given that even on his best days, he could walk only short distances of 50 feet (which took him five minutes). He also had a marked restriction in his ability to feed and dress himself that, given that he could not prepare food generally (let alone food that was medically required by his state of health) and that before dressing himself, had to exercise up to 20 minutes because his limbs were numb.
Vrantsidis v. The Queen, 2017 TCC 204 (Informal Procedure)
The taxpayer filed a Disability Tax Credit Certificate (Form T2201) respecting her son, who had been diagnosed with attention deficit hyperactivity disorder and had had a learning disability since he was six years old. In confirming the Minister’s denial of the claim (on the basis that the taxpayer’s son did not meet the criteria in s. 118.4(1)), Favreau J stated (at paras 12 and 14):
The DTC is intended for severely disabled persons who have difficulties with basic activities of daily living such as feeding or dressing themselves, eliminating (bowel or bladder functions), walking or carrying out a simple conversation. The disability can be with mental functions necessary for everyday life including memory, problem solving, goal-setting and judgement (taken together) and adaptive functioning to the extent that they are severe enough to interfere with very basic self-care activities. …[T]he person must be unable or require an inordinate amount of time to perform those mental functions all or substantially all of the time.
[The son]… graduated from Grade 12 on time. He has a part-time job, plays guitar and video games, is enrolled in a music and digital media academic program and is taking driving lessons. He has no vision, speaking, hearing, walking, eliminating (bowel or bladder functions), feeding and dressing impairment. His functioning has much improved with the prescribed medications.
He concluded (at para 16):
…[T]he effects of [the son’s] ADHD are not severe enough to meet the meaning of “markedly restricted” required to qualify for the DTC.
Gibson v. The Queen, 2014 DTC 1177 [at 3660], 2014 TCC 236 (Informal Procedure)
Woods J found that the taxpayer's chronic fatigue syndrome made her eligible for a disability tax credit. Regarding s. 118.4(1)(c.1), she stated (at paras. 23-24):
Ms. Gibson is capable of problem-solving, and this is fatal to her claim, according to the Crown.
I disagree with this view. The phrase "taken together" in clause (c.1)(iii) implies that one look at all three mental functions together [i.e. problem solving, goal-setting and judgment] and decide whether the combination results in a severe impairment.
Benoit v. The Queen, 2014 DTC 1141 [at 3384], 2014 TCC 95 (Informal Procedure)
The taxpayer was a professional musician who developed biopolar disorder, essential tremors (a neurotransmitter problem in which each muscle command is followed immediately by an echo), and a subarachnoid cyst that put pressure on his brain, causing further tremors as well as memory loss. Consequently, he had to judiciously avoid stressful situations, could barely drive, and had great difficulty completing simple tasks (e.g. tying his shoes).
Masse DJ found that the taxpayer's conditions meant that he was markedly restricted in his ability to perform activities of daily living, all or substantially all of the time. A T2201 certificate, an additional medical report, and a "Certificate Respecting Impairment" prepared by the taxpayer's physician appeared not to support the taxpayer's disability tax credit claim. Massed DJ noted, however (at para. 31):
These reports are only forms that contain questions the doctor must answer by checking the appropriate box, not for the purpose of providing a complete, detailed and well-formulated medical opinion for each case, but only for the purpose of providing the most appropriate answer from among two or three possible answers. These forms do not leave the doctor much freedom to express himself. By the way they are presented and worded, these forms do not seem to inspire much confidence in the medical opinions found therein.
Arciresi v. The Queen, 2014 DTC 1037 [at 2714], 2013 TCC 331 (Informal Procedure)
The taxpayer's wife had fainting spells, and a related fall caused her to break two vertibrae. She was subsequently diagnosed with asthma, sleep apnea, nocturnal hyperventilation, and exercise-induced hypoxemia, and later with obesity. Favreau found that the taxpayer's claim for mental or physical impairment tax credits should be denied for lack of a medical certificate. He also noted that "the effects of the disability are limitations on exercise tolerance" (para 10) and that his wife "could still dress herself, feed herself, and walk by herself," and the impairment was of limited duration (para. 13), so she did not have a prolonged mental or physical impairment under s. 118.4(1) in any event.
Wiley v. The Queen, 2013 DTC 1198 [at 1056], 2013 TCC 237 (Informal Procedure)
The taxpayer suffered from fibromyalgia. After it worsened in 2011, she applied for the disability tax credit, but her physician's letter stated that her impairment did not markedly restrict her ability to perform basic activities. VA Miller J confirmed that the taxpayer's credit should be denied - the Tax Court cannot use its own medical opinion in place of a qualified practitioner's (para. 16).
Islam v. The Queen, 2013 DTC 1143 [at 762], 2013 TCC 175 (Informal Procedure)
Lamarre J found that the taxpayer was unable to demonstrate that permanent blindness in one eye markedly restricted any basic activities of daily living. On the contrary, the taxpayer had 20/20 vision in his left eye, a normal field of vision, an unrestricted driver's licence, and could read without difficulty.
Pakarinen v. The Queen, 2010 DTC 1319 [at 4212], 2010 TCC 456 (Informal Procedure)
The taxpayer suffered from seizures, but this was found not to markedly restrict any basic daily activities. The taxpayer's physician opined that he could live without supervision, and without spending an inordinate amount of time on basic daily activities.
Droin v. The Queen, 2008 DTC 2636, 2005 TCC 793 (Informal Procedure)
In finding that the taxpayer, who could not use his upper left limb, was entitled to the credit, Lamarre Proulx, J. stated (at para. 2638):
"The Appellant could perhaps choose clothes without zippers, shoes without laces, eat food that is already cut up, or buy frozen vegetables. This would, however, imply a very marked divergence from what is considered normal."
McNaughton v. The Queen, 2005 DTC 1681, 2005 TCC 714 (Informal Procedure)
The taxpayer was entitled to the disability tax credit under ss.118.3 and 118.4 in respect of her son whose attention deficit hyperactivity disorder was characterized by Bowman C.J. as "severe".
Radage v. The Queen, 96 DTC 1615,  3 CTC 2510 (TCC) (Informal Procedure)
Before concluding that the severe intellectual limitations of the taxpayer's son rendered him incapable of performing such mental tasks as would enable him to function independently and with reasonable competence in everyday life, Bowman TCJ. found that the "and" in s. 118.4(1)(c)(ii) should be treated as disjunctive, and engaged in an extensive discussion of the meaning of the terms "thinking", "perceiving" and "remembering".
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|Tax Topics - Statutory Interpretation - Interpretation Act - Section 12||49|
Murphy v. The Queen, 95 DTC 415 (TCC)
The taxpayer, who suffered from chronic fatigue syndrome and myalgia was required to spend an inordinate amount of time in performing a basic activity of daily living, i.e., walking. In particular, she could not walk at a normal pace, had to stop periodically and rest, had to monitor her fatigue level so that she did not injure herself physically and undergo considerable pain and, at best, she could not walk further that a block.
Girard c. La Reine, 2006 DTC 2394, 2005 TCC 104 (Informal Procedure), briefly aff'd 2006 DTC 6129, 2006 FCA 65
The taxpayer, who suffered from sleep apnea and who used nightly a continuous positive airway pressure device, was not entitled to the credit.
Watkin v. The Queen, 2002 DTC 2132 (TCC)
In finding that the taxpayer, who suffered from chronic fatigue syndrome, was eligible for the credit under s. 118.3(1), Rip T.C.J. referred to s. 33(2) of the Interpretation Act ("words in singular include the plural") and accepted a submission that the cumulative effect of restrictions imposed on the taxpayer's ability to perform more than one basic activity of daily living could be taken into account.
Qualifying for a CPP disability benefit does not necessarily mean qualifying for a disability tax credit, because they use different standards of disability (CPP depends on ability to pursue any substantially gainful occupation, while DTC depends on ability to perform basic activities of daily living).
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|Tax Topics - Income Tax Act - Section 118.3 - Subsection 118.3(1)||67|
|Tax Topics - Income Tax Act - Section 118.3 - Subsection 118.3(2)||103|
An individual who had received training in the use of the massager, but was not a health professional licensed to practise under the applicable provincial legislation, wished to set up a “Vertebrotherapy Centre” that would use the massager to relax the user while improving blood circulation, clearing QI energy channels and relieving muscle tension. After indicating that fees to clients would not qualify under s. 118.2(2)(a) because the individual was not a health practitioner, CRA reviewed the requirements of ss. 118.2(2)(l.9) (including its interpretation in Herzig) and 118.4(1)(c) noted inter alia that “no other activity, including work, housework, and social or recreational activities, is considered a basic activity of daily living.”
Green v. The Queen, 2019 TCC 74 (Informal Procedure)
Ms. Green was in her early thirties and suffered from severe social anxiety disorder, severe panic disorder with agoraphobia, chronic and generalized moderate to severe generalized anxiety disorder, and a persistent depressive disorder, all as diagnosed by psychiatrists. Ms. Green was living in an apartment on her own, but she relied heavily on her mother, who did her banking and tax filings, made her medical and other appointments and accompanied her to them, and took care of all third-party communications. Ms. Green had failed university, been unable to last very long in retail jobs, and been unsuccessful working full-time doing bookkeeping and data entry for the family auto repair shop as she could not interact with customers, cope with problem solving, or be there if her mother were absent. She missed a lot of work. Her mother regretfully terminated Ms. Green’s employment in early 2015. Ms. Green received provincial income support because of her impairment. She began working in the family business again, but only about 10 hours a month.
Monaghan J found that Ms. Green’s appeal should be allowed for her 2015 and subsequent taxation years (but not for her 2010 to 2014 years for which her daily activities were less adversely affected). The particular focus was on whether she satisfied this test respecting mental functioning be reference to the definitions of that function in s. 118.4(1)(c.1)(iii) (“adaptive functioning”) OR s. 118.4(1)(c.1)(ii) (“problem-solving, goal-setting and judgment (taken together)”).
Respecting s. 118.4(1)(c.1)(iii), she stated (at para. 54):
In my view, assessing Ms. Green’s adaptive functioning … is an exercise in assessing whether her mental illness markedly impacts her adaptive functioning as an overall matter. Does her mental illness impair her abilities related to self-care, health, safety, social skills, and common simple transactions in life (i.e., the mental function necessary for daily living) and her independence to do so? … I am satisfied … that it does and that, at least since 2015, it has done so all, or substantially all, of the time.
Respecting s. 118.4(1)(c.1)(ii), she stated (para. 56):
…Ms. Green’s behaviour is not illogical, but her choices are affected by her anxiety. …Her anxiety causes a lot of avoidance, procrastination and withdrawal, which assists Ms. Green in coping with her anxieties, but has led to other problems, such as failing school, loss of employment, self-harm activities, reluctance to pursue therapy, and taking on too many projects. …
Jungen v. The Queen, 2021 TCC 16 (Informal Procedure)
The taxpayer’s son, JA, born in 2003, had extreme behaviour issues, unable to maintain good relationships with anyone due to his unpredictable and aggressive behaviour. JA was diagnosed in 2013 by a doctor, as having attention deficit hyperactivity disorder (ADHD), and subsequently additionally diagnosed by the doctor with learning disabilities and unspecified disruptive, impulse-control and conduct disorder. Medication for ADHD did not solve the behavioural issues.
After referencing the tests in ss. 118.3(1)(a.2) and 118.4(1)(a), and before finding that the taxpayer was entitled to the disability tax credit, Russell J stated (at paras. 43-44):
The “adaptive functioning” statutory reference to ability re social interactions is particularly relevant. The evidence has established that JA is seriously lacking in ability to engage in social interactions … substantially all of the time. The same is so re his continuing inability to accept regular showering. That difficulty is an element of “self-care” and “health”, also identified as indicative of “adaptive functioning”. Thus, and construing the statutory term “adaptive functioning” on an humane and compassionate basis as directed by jurisprudence, I ultimately accept that JA is markedly restricted in respect of the adaptive functioning aspect of mental functions necessary for everyday life.
To a lesser extent but still significantly the same evidence established issues JA had with “memory” and “problem solving, goal-setting and judgment (taken together)” as specified in the Act.
Subsection 118.4(2) - Reference to medical practitioners, etc.
Murphy v. The Queen, 2010 TCC 434, 2010 DTC 1293 at 4034 (Informal Procedure)
McArthur J. held that the passing of the Traditional Chinese Medicine Act, 2006 (S.O. 2006 c. 27) meant that acupuncturists became "authorized" medical practitioners in Ontario, for the purposes of s. 118.4(2).
Canada v. Couture, 2009 DTC 5675, 2008 FCA 412
The Trial Judge erred in finding that, because the practice of acupuncture was no longer prohibited under the Controlled Acts Regulations (Ontario), an acupuncturist was an authorized person under s. 118.4(2). To "authorize" meant to give formal approval to or to formally approve, and the mere fact that an action is no longer prohibited does not lead to the conclusion that such action has been formally approved.
Power v. The Queen, 2012 DTC 1137 [at 3211], 2012 TCC 113 (Informal Procedure)
Webb J. denied the taxpayer's claimed medical expense tax credit on acupuncture expenses. He stated (at para. 12):
The reason that Ermin Zhu could perform acupuncture was because Ermin Zhu was not prohibited from performing acupuncture. Since the provisions of the [Ontario] Traditional Chinese Medicine Act that would provide specific authority for a person to perform acupuncture were not proclaimed, they are of no legal effect and in 2009 there was still no formal approval for a person to perform acupuncture. Therefore Ermin Zhu was not authorized to perform the acupuncture treatments in 2009.
Davar v. The Queen, 2005 DTC 1671, 2005 TCC 715 (Informal Procedure)
The taxpayer spend approximately $1,200 on the services of two naturopaths who had certificates under the Drugless Practitioners Act (Ontario) as naturopathic doctors. Miller J. noted that although Ontario had legislation dealing with professionals in alternative treatment, here the services had been received in New Brunswick and did not qualify.
CRA indicated that it “will shortly be adding” the words “psychotherapist legally authorized" to its list of Authorized medical practitioners for the purposes of the medical expense tax credit, so that “expenses incurred for psychotherapy services rendered by psychotherapists who hold a psychotherapy permit issued by the Ordre des psychologues du Québec will now be considered medical expenses … for purposes of the medical expense tax credit.” Its summary stated:
Quebec's competent psychotherapists, who are not members of an order, but who hold a psychotherapy permit issued by the Ordre des psychologues du Québec, are legally supervised by the latter.
Are osteopaths and naturopaths are authorized medical practitioners in the province of Quebec for purposes of the federal medical expense tax credit (METC)? The Directorate responded:
[T]here does not appear to be specific legislation in Quebec which authorizes the practice of osteopathy or naturopathy and which provides for a regulatory body for osteopaths or naturopaths. Therefore… osteopaths and naturopaths in the province of Quebec are not medical practitioners within the meaning of subsection 118.4(2)… .
The Income Tax Act does not have a provision that is similar to paragraph 752.0.18.(b) of the Quebec Taxation Act… .
25 November 2014 Ministerial Correspondence 2014-0551781M4 - 118.2(4)-Pulse electromagnetic technician
Ontario "certified pulse electromagnetic technicians… are not currently considered to be medical practitioners for the purposes of the medical expense tax credit."
"it appears that doulas are not currently authorized to practise as medical practitioners in the province of Alberta and therefore, the amounts paid for services provided by such doulas in Alberta do not qualify as eligible medical expenses for the purposes of the medical expense tax credit.
In accordance with the decision of the Federal Court of Appeal in Canada v Couture, ... it is the CRA's view that an individual is authorized by the laws of the jurisdiction to act as a medical practitioner if there is specific legislation that enables, permits or empowers that individual to perform medical services. Generally, such specific legislation would provide for the licensing or certification of the practitioner as well as for the establishment of a governing body (for example, a college or board) with the authority to determine competency, enforce discipline and set basic standards of conduct.
Medical practitioners authorized to practice in accordance with the above laws can include the following (depending on the applicable province or jurisdiction, as the case may be): chiropractors, dental hygienists, dieticians, midwives, optometrists and naturopaths. A current list of Authorized medical practitioners by province or territory for the purposes of claiming medical expenses is available on the CRA Web site.
In response to a question as to whether products purchased from a naturopath would be eligible for the medical expense tax credit, CRA stated:
The Canada Revenue Agency Web site provides a summary chart identifying those health care professionals authorized to practice as medical practitioners by province or territory for the purposes of claiming medical expenses. It appears that naturopaths are authorized as medical practitioners in the province of Ontario and the cost of services they provide would qualify for the METC if they are medical services.
However, CRA went on to note that:
Natural health products that are available for self-selection as over-the-counter products would not generally meet the requirements of [s. 118.2(2)(n)].
In indicating that expenses paid to Quebec massage therapists were ineligible for the credit, CRA stated:
It is therefore necessary to determine whether the applicable provincial legislation … includes massage therapists with medical practitioners which, according to our understanding of that legislation, would not appear to be the case. For the same reason … Chevalier … 2008 TCC 11 … concluded that the fees paid for the services of a naturopathic doctor and an osteopathic practitioner did not qualify for the medical expense tax credit.
Regarding guidance counsellors certified as psychotherapists, CRA stated:
The Canada Health Act defines the term "medical practitioner" as "a person lawfully entitled to practise medicine in the place in which the practice is carried on by that person". …
The Canada Health Act defines the term "medical practitioner" as "a person lawfully entitled to practise medicine in the place in which the practice is carried on by that person". …
[W]e are not aware of any federal or provincial legislation that would allow guidance counsellors certified as psychotherapists or psychotherapists to practise medicine in Quebec. Thus, fees paid to a guidance counsellor who acts as a psychotherapist do not qualify as medical expenses pursuant to paragraph 118.2(2)(a).
A dietician who is qualified under s. 7 of the Dietetics Act (Ontario) will be considered to be a medical practitioner. However, a nutritionist will not be considered to be a medical practitioner except to the extent that she qualifies as a dietician.