Date: 20021212
Docket: 2001-4343-IT-I
BETWEEN:
REBECCA J. NOWELL,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Little, J.
A. FACTS
[1] The Appellant was born in Regina, Saskatchewan on the 25th day of June 1965.
[2] On the 20th day of September 1996 the Appellant was admitted to the Rockyview Hospital in Calgary. After the Appellant suffered a grand-mal seizure she was placed on a full life support system.
[3] The Appellant was in a coma for approximately eight hours and she gradually returned to a conscious state. However she suffered from frequent seizures.
[4] After a number of tests the Appellant was diagnosed as suffering from viral encephalitis.
[5] The Appellant was hospitalized in Calgary, Alberta until December 1996 and she was then moved to her parents' home in Regina, Saskatchewan.
[6] The Appellant has had many medical examinations and she has been diagnosed as being unfit to work.
[7] When the Appellant filed her income tax return for the 1999 taxation year she claimed a medical disability tax credit.
[8] Officials of the Canada Customs and Revenue Agency (the "CCRA") advised the Appellant that they have determined that the Appellant's claim for the disability tax credit does not meet the eligibility criteria. The letter from the CCRA of April 5, 2001 reads as follows:
Our medical advisors have reviewed your claim for the disability amount and it has been determined that it does not meet the eligibility criteria as you are able to perform the basic activities of daily living without a significant amount of assistance. Therefore, we cannot allow the claim.
[9] The Appellant's 1999 taxation year was reassessed to disallow the claim for the disability tax credit.
B. ISSUE
[10] Is the Appellant entitled to claim the disability tax credit as provided for in section 118.3 of the Income Tax Act (the "Act").
C. ANALYSIS
[11] Mr. Robert Nowell, father of the Appellant, represented the Appellant during the appeal. Mr. Nowell filed a number of documents to provide an explanation of the medical problems suffered by the Appellant.
[12] In a Neuropsychological Evaluation dated June 18, 1997 (Exhibit A-2) Dr. Timothy H. Landry stated at page 2 as follows:
Ms. Nowell reported that since her admission to hospital with a diagnosis of Herpes Simplex Encephalitis she has experienced marked difficulties with judgment, anger/irritability, mood swings, mental confusion and boredom. She reported moderate problems with depression, fatigue and nightmares. She also reported mild to very mild problems with attention difficulties, balance difficulties, expressing thoughts, reading/writing difficulties, walking difficulties, seizures, sleep difficulties, physical weakness, finding her way around, arithmetic difficulties, social difficulties and general overall physical weakness.
[13] In a Disability Tax Credit Certificate completed by Dr. Luis A. Salgado on April 7, 1997 (Exhibit A-5) Dr. Salgado was asked to describe the Appellant's restrictions. Dr. Salgado said:
"herpes encephalitis - Sept. 26 96
complicated with seizures"
[14] In the Certificate Dr. Salgado was asked to answer the following questions:
4. Is your patient able to think, perceive and remember, using medications or therapy if necessary?
(For example, can manage personal affairs or do personal care without supervision.)
Dr. Salgado answered NO.
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?
Dr. Salgado answered YES.
[15] In the Disability Tax Credit Certificate completed by Dr. Mary Anne Lee. a Neurologist at the Foothills Hospital in Calgary on April 20, 1998 (Exhibit A-6), Dr. Lee was asked to answer the following questions:
4. Mental Functions
Is your patient able to think, perceive, and remember, using medication or therapy if necessary?
(For example, can he or she manage personal affairs or do personal care without supervision?)
Dr. Lee answered NO.
9. Is the impairment severe enough to restrict the basic activity of daily living identified above all, or almost all the time, even with therapy and the use of appropriate aids and medication?
Dr. Lee answered YES.
[16] Dr. Lee and Dr. Arthur of Foothills Hospital completed a similar Disability Certificate on February 10, 1999 (Exhibit A-8).
[17] Dr. Lee signed a further Disability Tax Credit Certificate on March 30, 2000 (Exhibit A-9). In this Certificate Dr. Lee answered NO to the question regarding Mental Functions and she added the following comment with respect to the Appellant:
Has severe short term memory impairment.
[18] By letter dated June 27, 2000 (Exhibit A-10) D. Murash of the CCRA wrote to Dr. Lee. The letter from Mr. Murash was a form letter and Dr. Lee was asked to complete a number of questions. (I have selected several of the questions and answers).
10. Was your patient's condition or impairment controlled with medication or therapy?
Answer - Yes.
Please explain.
(Dr. Lee) Seizures controlled but medications don't help her memory and, if anything, may worsen it.
11. For the year 1999, what percentage of time was your patient unable to think, perceive and remember, even with the use of medication or therapy?
(Dr. Lee) 100% of the time she has a severe memory disturbance.
13. Do you expect the severity of your patient's functional limitations will change?
(Dr. Lee) NO.
Please explain.
(Dr. Lee) Her memory will never recover.
14. Please provide all pertinent medical information, if possible, other comments.
(Dr. Lee) This woman's neurological disorder is permanent and I would be very surprised to see any significant change in the future.
[19] In a further Disability Tax Credit Certificate dated January 26, 2001 (Exhibit A-15) Dr. Lee was asked whether the Appellant can perceive, think and remember. Dr. Lee answered NO. In the Certificate Dr. Lee made the following comment concerning the Appellant:
This woman suffered from herpes encephalitis and has been left with a permanent amnesic syndrome and a seizure disorder. She is not capable of gainful employment.
[20] During the hearing of the appeal I was advised that Dr. Lee, the Appellant's Neurologist, died in March 2001. After Dr. Lee died the Appellant consulted Dr. Alexander Hanson, a Neurologist at Foothills Hospital. In a Disability Tax Credit Certificate dated April 16, 2002 (Exhibit A-25) Dr. Hanson made statements similar to the statements made by Dr. Lee. In particular Dr. Hanson was asked the following question:
4. Mental Functions
Is your patient able to think, perceive and remember, using medication or therapy if necessary? (For example, can she manage personal affairs or do personal care without supervision?)
Dr. Hanson answered NO.
[21] In this situation I recognize the difficulties that the Appellant will have for the rest of her life. I also recognize the severe emotional and financial problems that her condition causes her parents and her family. Based on the evidence presented to me and, in particular the Disability Tax Credit Certificates signed by Dr. Salgado, Dr. Mary Anne Lee and Dr. Hanson, I have concluded that the Appellant's intellectual limitations are severe enough to justify the disability tax credit.
[22] The appeal from the assessment issued for the 1999 taxation year is allowed, without costs, and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment to allow the Appellant the disability tax credit under section 118.3 of the Act.
Signed at Vancouver, British Columbia, this 12th day of December 2002.
|
"L.M. Little" |
J.T.C.C.
COURT FILE NO.: 2001-4343(IT)I
STYLE OF CAUSE: Rebecca J. Nowell and
Her Majesty the Queen
PLACE OF HEARING: Regina, Saskatchewan
DATE OF HEARING: November 18, 2002
REASONS FOR JUDGMENT BY: The Honourable Judge L.M. Little
DATE OF JUDGMENT: December 12, 2002
APPEARANCES:
Agent for the Appellant: Barrie Nowell
Counsel for the Respondent: Anne Jinnouchi
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-4343(IT)I
BETWEEN:
REBECCA J. NOWELL,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on November 18, 2002, at Regina, Saskatchewan, by
the Honourable Judge L.M. Little
Appearances
Agent for the Appellant: Barrie Nowell
Counsel for the Respondent: Anne Jinnouchi
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1999 taxation year is allowed, without costs, and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment to allow the Appellant the disability tax credit under section 118.3 of the Act.
Signed at Vancouver, British Columbia, this 12th day of December 2002.
|
"L.M. Little" |
J.T.C.C.