Section 118.4

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.

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.

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.

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.

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).

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.

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.

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."

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".

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".

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.

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.

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.