Tax Court of Canada Judgments

Date: 20010907

Docket: 2000-452-IT-I

BETWEEN:

ÉDITH BOUCHARD,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasonsfor Judgment

P. R. Dussault, J.T.C.C.

[1]            These are appeals from assessments made under the Income Tax Act (the "Act") for the 1997 and 1998 taxation years, whereby the Minister of National Revenue (the "Minister") disallowed the appellant the credit for severe and prolonged mental or physical impairment for each of those years.

[2]            In filing her income tax return, the appellant did not claim the credit in question. She claimed it for 1997 by written request dated January 8, 1999, with which was enclosed the prescribed form T2201 completed by Dr. Byron Hyde on November 23, 1998 (respondent's documents, tab 3). As to 1998, the assessment, notice of which is dated June 21, 1999, was made as per the return filed by the appellant. On July 12, 1999, the Minister, at the appellant's request, sent Dr. Georges Mailloux a T2201 form and questionnaire to complete. Dr. Mailloux did not complete the form. The questionnaire was completed and signed on July 28, 1999 (respondent's documents, tab 5). On August 12, 1999, the appellant served notice of her objection to the assessment of June 21, 1999, as a result of the Minister's refusal to allow her the credit for severe and prolonged mental or physical impairment for 1998.

[3]            For both of the years concerned, the appellant claimed the credit for severe and prolonged mental or physical impairment because of the chronic fatigue syndrome from which she suffers. The Minister disallowed the credit claimed, finding, on the basis of the information at his disposal (in particular, the medical certificates provided by the appellant), that the appellant did not have a severe and prolonged mental or physical impairment the effects of which were such that her ability to perform a basic activity of daily living was markedly restricted during the years in issue.

[4]            Counsel for the appellant called no experts. However, he attempted to file in evidence a medical report by Dr. Micheline Guay, of which the respondent had no knowledge, and he did so without giving advance notice contrary to subsection 7(1) of the Tax Court of Canada Rules (Informal Procedure). Counsel for the respondent objected because he had not received the required notice and also because he was unable to cross-examine the report's author. As the objection was justified, counsel for the appellant could have requested an adjournment, which he refrained from doing. The appellant's evidence is thus limited to her testimony.

[5]            The appellant explained that, before the onset of her illness, she had worked as a computer programmer and, being appreciated by her employer, had received regular promotions. She had also been very active and taken part in numerous sporting and social activities. Toward the end of 1991, she began experiencing health problems, which first appeared in the form of major fatigue from which she was no longer able to recover. In January 1993, on account of her accumulating symptoms, she requested sick leave for the first time. She was then suffering from fatigue, headaches, chest pains, dizziness, sneezing and other symptoms.

[6]            At that time, the appellant, at her employer's request, consulted various specialists, who, while acknowledging that she was ill, felt she was nevertheless able to work. Between periods of sick leave of several months' duration, the appellant returned to work periodically on the advice of the medical experts consulted at her employer's request. The appellant's work weeks were gradually reduced to three half-days; her home became her place of work; and she took successive periods of sick leave. Following various incorrect diagnoses, the chronic fatigue syndrome and fibromyalgia from which she suffers were identified. The appellant stopped working for good in February 1997 and was dismissed in August 1998.

[7]            The appellant explained how far her daily activities had been restricted during the period in issue, that is, after permanently ceasing to work, and she stated that her condition has not since improved. She explained that she normally gets up around 8:30 a.m. or 9:00 a.m. and that, when she awakes, she suffers from pains in one leg, in the back and in the neck, as a result of which it takes a considerable effort even to get up. She must wait before she gets dressed since the pain makes this task too difficult. She normally does not attempt to dress herself until after breakfast because she would otherwise have to spend an hour or more doing so. On this point, she mentioned that she generally dresses two hours after getting up but did not say how much time she must devote to this task. She also said she herself does not do any cleaning in the house where she lives with her sister, who suffers from cerebral palsy, and that a person she described as a homemaker prepares the meals, does the housekeeping and maintains the yard. She mentioned, however, that she occasionally prepares very light meals herself, but when she does so, she must rest before the meal in order to prevent her blood pressure from falling.

[8]            The appellant also stated that, as a result of her lack of energy, she has no ability to socialize and isolates herself a great deal. She explained that one of the only recreational activities she can engage in is walking in the woods with her dog, when her condition permits. Even during these walks, she explained, she must frequently stop and sit down and often falls asleep on the spot. She said that she also goes for drives, but that she must also stop after an hour or two because she is so tired she has to sleep. These limits imposed on her by her illness prolong her trips, particularly on her visits to the doctor, which are numerous according to the statement of the Régie de l'assurance-maladie du Québec filed as Exhibit A-2. However, she did not specify how fast she can walk or the frequency of the breaks she must take when walking or even whether she must take breaks over short distances. She explained that it is impossible for her to remain standing for long periods because of pains in her leg and back. She said that conversing with someone is exhausting because of the concentration required. She explained she cannot read on account of memory loss resulting from her illness. As for television, she said she limits it to watching programs that are not stressful. She also mentioned that she has to wear tinted lenses because she is sensitive to light.

[9]            Lastly, she explained that she finds it extremely difficult to do her shopping herself, since, if she stays in a store for too long, she suffers back pain, headaches and nausea. For example, she must return to the store several times in order to buy an article of clothing. She usually does not do her grocery shopping herself. She testified that, on one occasion, she chose to do so in order to immerse herself in society and that the fatigue, nausea and hot flashes almost forced her to leave her full basket at the cash.

[10]          She also mentioned that, on some days, she is unable to do anything at all. However, she did not say how frequently these days of total inactivity occur.

[11]          At one point, the appellant asked the Court to suspend the hearing for a few minutes because she was experiencing pain.

[12]          In cross-examination, the appellant admitted that her symptoms vary from one day to the next, although she did not explain the degree of variation or even the proportion of [TRANSLATION] "good" days to [TRANSLATION] "bad". She also admitted that she and one of her sisters look after the finances of her sister suffering from cerebral palsy. According to the appellant, this is not a complex task: it is simply a matter of dividing the amount of the welfare cheque between food and clothing. The appellant's income tax returns, various medical certificates, and letters and questionnaires completed by doctors, which the appellant sent to the Canada Customs and Revenue Agency were also filed in evidence. The appellant cast doubt on the probative value of certain documents, stating that one of the doctors who had drafted them, Dr. Byron Hyde, an Ottawa physician, did not speak French very well, whereas she herself has difficulty communicating in English.

[13]          It should be noted that, on the T2201 form dated November 23, 1998, duly completed at the appellant's request, Dr. Hyde in no way indicates in his answers to the questions that the appellant has a severe and prolonged mental or physical impairment the effects of which are such that her ability to perform a basic activity of daily living is markedly restricted. He does state, however, that the appellant suffers from a permanent impairment described as follows: "Fibromyalgia/CFS/severe & rapid fatigue of muscle & CNS abilities with activity."[1] In a lengthy letter dated June 30, 1998, which purported to be a full and detailed medical report and which he sent to counsel for the appellant, clearly for insurance purposes and not in support of the tax credit claim, but which was nevertheless handed over to the tax authorities, Dr. Hyde concludes that the appellant is above all suffering from chronic fatigue syndrome and that she is totally incapable of working (respondent's documents, tab 4). It should be noted that Dr. Hyde met the appellant a number of times, that he studied previous medical reports and that he subjected her to additional tests. His finding is drafted as follows at pages 11 and 12 of the letter:

                                Is Edith Bouchard Totally Disabled?

Yes. This patient has classical CFS and when it persists for several years as in this case, then it is considered to be a disabling illness in its own right. It is my opinion by both history and physical examination and by observation of this patient during her multiple visits to my office and inspection of tests done at my request and by other physicians that Edith Bouchard is and has been totally disabled with CFS from at least the time that she first visited my office on May 13, 1997. It is also my opinion by history that she has been totally disabled for at least several years prior to that time. Specifically since she first fell ill in 1991. She is disabled now and is totally incapable to resume her work or any other reasonable, consistent, remunerative work. Frankly, it would be a major disservice to return her to work to any employer now or in the foreseeable future.

Edith Bouchard is suffering from multiple disabilities, some of which such as her CFS is severe and prolonged and that in itself make it reasonably impossible for Edith to be capable of any regular or substantially gainful occupation. It is my opinion that these disabilities are due to a CNS [Central Nervous System] impairment. She has other disabilities, though not major are not minor either, and the sum of these moderate disabilities such as the fibromyalgia, possible dementia, and abnormal neuro-hormonal tests, are together and independent from her major disability, sufficient to make her incapable of regular substantial gainful employment due to physical impairment.

[14]          As stated above, Dr. Georges Mailloux, to whom the tax authorities, at the appellant's request, sent a T2201 form and a questionnaire on July 12, 1999, did not complete the form. Moreover, in the answers he provided on the questionnaire signed on July 28, 1999, Dr. Mailloux gave the following diagnosis for 1997 and 1998:

                                [TRANSLATION]

                                Sick Building Syndrome

                                chronic fatigue syndrome and/or fibromyalgia

                                environmental hypersensitivity

                                multiple chemical sensitivity

[15]          Nowhere in his other answers to the questions can it be perceived that he considers those impairments to be so severe and prolonged that their effects are such that the appellant's ability to perform a basic activity of daily living is markedly restricted. At most, he states, under the heading FEEDING & DRESSING, that the appellant [TRANSLATION] "does everything slowly".

Relevant Statutory Provisions

[16]          Subsections 118.3(1) and 118.4(1) provide as follows:

118.3(1) Credit for mental or physical impairment — 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)     in the case of

(i)                    a sight impairment, a medical doctor or an optometrist,

(ii)                  a hearing impairment, a medical doctor or an audiologist,

(iii)                 an impairment with respect to an individual's ability in feeding and dressing themself, or in walking, a medical doctor or an occupational therapist,

(iv)                an impairment with respect to an individual's ability in perceiving, thinking and remembering, a medical doctor or a psychologist, and

(v)                  an impairment not referred to in any of subparagraphs (i) to (iv), a medical doctor

has certified in prescribed form that the impairment is 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,

for the purposes of computing the tax payable under this Part by the individual for the year, there may be deducted an amount determined by the formula

A x $4,118

where

A              is the appropriate percentage for the year.

118.4 (1) Nature of impairment — 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.

Subparagraphs 118.3(1)(a.2)(i),(ii) and (iii) were introduced by a 1998 amendment (S.C. 1998, c. 19, s. 24(1)) applicable to certifications made after February 18, 1997. Paragraph 118.3(1)(a.2) had not theretofore provided for the specific situation of a hearing impairment.

Subparagraph 118.3(1)(a.2)(iii) was amended and subparagraphs (iv) and (v) were added by S.C. 1999, c. 22, s. 35(1), applicable to certifications made after February 24, 1998.

Parties' submissions

[17]          Referring to the reasons for judgment of Judge Bowman of this Court in Radage v. Canada, [1996] T.C.J. No. 730 (QL), cited by Létourneau J.A. of the Federal Court of Appeal in Johnston v. Canada, [1998] F.C.J. No. 169 (QL), counsel for the appellant contended that the provisions involved in the instant case must be interpreted compassionately and not narrowly. Counsel for the appellant thus relied more particularly on the following excerpt found in paragraph 45 of Judge Bowman's reasons in Radage, supra:

. . . The intent is neither to give the credit to everyone who suffers from a disability nor to erect a hurdle that is impossible for virtually every disabled person to surmount. It obviously recognizes that disabled persons need such tax relief and it is intended to be of benefit to such persons.

[18]          Counsel for the appellant also cited the following passage from paragraph 10 of the reasons of Létourneau J.A. of the Federal Court of Appeal in Johnston,supra:

The purpose of sections 118.3 and 118.4 is not to indemnify a person who suffers from a severe and prolonged mental or physical impairment, but to financially assist him or her in bearing the additional costs of living and working generated by the impairment.

[19]          Pointing out that the appellant's condition had not improved since 1993, counsel argued that her impairment is without a doubt prolonged, as required by the Act. As to the manner in which that impairment restricts the appellant in performing the basic activities of daily living, he emphasized perception, thinking and remembering, the restricted nature of which is, in his view, stressed in the form completed by Dr. Hyde for Quebec income tax purposes and filed in evidence by the respondent (respondent's book of documents, tab 3 (see note 1 above)).

[20]          The arguments put forward by counsel for the respondent are mainly based on the appellant's testimony. Counsel pointed out that the tests stated in the Act are very restrictive, although the courts have recognized that they should be interpreted with a certain amount of compassion. Counsel acknowledged that, as a result of her illness, the appellant experienced certain problems with respect to thinking, remembering, feeding herself and walking. However, he referred to the two forms completed by Dr. Hyde, according to which the appellant is able to feed herself and to walk. As to the mental functions question, the answers on the two forms are somewhat different. Thus, on the first form (for Revenue Quebec), with respect to mental functions Dr. Hyde cites memory problems, whereas, on the second form (for Revenue Canada), in response to the question "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?)", he answers yes. To a similar question worded as follows on the Revenue Quebec form: [2] [TRANSLATION] "Is your patient able to perceive, think and remember without requiring an inordinate amount of time to do so, even with therapy or prescribed devices or medication if necessary? An inability to manage one's personal affairs (provide oneself with food, clothing, etc.) or to attend to one's personal care (feeding, dressing oneself, etc.) without supervision may constitute a severe impairment", Dr. Hyde checked no answer, but added the following note: [TRANSLATION] "Problems of memory and severe fatigue and pain syndromes. See letter attached." In view of this apparent contradiction, counsel for the respondent argued that the appellant's testimony offered a better indication of the extent of her impairment.

[21]          Counsel for the respondent emphasized in this regard that the appellant admitted that she occasionally prepared meals for herself, albeit light ones, since she had a homemaker who usually made her meals. She also admitted to sometimes going to do her shopping herself, although she found it very tiring. Counsel pointed out that these admissions supported a finding that the appellant is able to feed herself adequately and to walk. As to thinking and remembering, counsel emphasized that the appellant, together with one of her sisters, looked after the finances of another, severely impaired, sister who lives with her. He also noted the speed with which the appellant, at the hearing, identified, at her counsel's request, a specific passage from Dr. Hyde's letter, and this, according to counsel for the respondent, showed that the appellant had memory.

[22]          Counsel for the respondent asserted that the impairments which the appellant described in relation to walking, feeding herself, thinking and remembering are not sufficiently severe to affect the basic activities of daily living and thus do not entitle her to the credit provided for in sections 118.3 and 118.4 of the Act.

[23]          In addition, counsel for the respondent referred to paragraph 118.4(1)(d), which specifies that working, housekeeping or a social or recreational activity are not to be considered as a basic activity of daily living. In counsel's view, the basic activities of daily living within the meaning of the Act are thus limited to life-sustaining activities rather than activities of living.

[24]          Relying as well on the appellant's statement that her symptoms varied from day to day, counsel for the respondent referred to Sarkar v. Canada, [1995] T.C.J. No. 669 (QL), in which Judge Sarchuk held in paragraphs 19 to 21 that the requirement of paragraph 118.4(1)(b) that an individual must be "all or substantially all of the time . . . unable (or require. . . an inordinate amount of time) to perform a basic activity of daily living" is not met by intermittent bouts of illness, even if that illness causes a severe impairment. Counsel cited the following from paragraph 22 of Judge Sarchuk's reasons for judgment:

. . . However it is obvious that Parliament, as a matter of policy, intended to create a high threshold regarding the level of disability which must be met in order to qualify. That is the only way to read that section, particularly in view of the fact that it was not worded as strictly before and the legislators amended it to make it stricter. I cannot read it in any other fashion.

[25]          Counsel for the respondent also relied on Campbell v. Canada, [1996] T.C.J. No. 513 (QL), in which Judge Rowe concluded as follows in paragraph 19:

. . . I find on the evidence that during 1992 and 1993, the appellant had more bad days than good days but she was able to drive her car to the location of her medical professionals and to walk to their office during her visits which, during certain periods, could be as frequent as two or three times per week. . . .

[26]          Counsel also cited paragraph 21 of Judge Rowe's reasons:

. . . There is no doubt the legislation is designed to bar the claim for all but the most severely handicapped. The problem is exacerbated by the unevenness of assessments from year to year and from person to person suffering from the same disability. It makes it more difficult to understand when many of these persons gather together in support groups and discuss the acceptance or rejection of their claims. These are matters which are within the ability of the Minister to address and are not capable of being remedied by this Court. It is also not the function of the Court to validate, as deserving of increased recognition, a particular disease or condition that may be poorly understood by the majority of medical practitioners.

[27]          Lastly, counsel for the respondent referred to the following passage from Judge Bowman's reasons in Radage, supra, in paragraph 45:

. . . In these guidelines I have emphasized the need to recognize the way in which one function depends on the others, and to attempt to relate the use of those functions to some meaningful result in everyday life.                                                                                       

(e) Finally there must be considered -- and this is the most difficult principle to formulate -- the criteria to be employed in forming the judgement whether the mental impairment is of such severity that the person is entitled to the credit, i.e. that that person's ability to perceive, think and remember is markedly restricted within the meaning of the Act. It does not necessarily involve a state of complete automatism or anoesis, but it should be of such a severity that it affects and permeates his or her life to a degree that it renders that person incapable of performing such mental tasks as will enable him or her to function independently and with reasonable competence in everyday life.

[28]          In conclusion, counsel for the respondent contended that the appellant's testimony, while it reveals that the appellant was severely restricted by her illness, does not show that she was sufficiently restricted to meet the tests of section 118.4 of the Act.

Analysis

[29]          In Radage, supra, Judge Bowman sets out certain general principles concerning the application of sections 118.3 and 118.4 of the Act. In particular, he states in paragraph 45 of his reasons:

    . . . (b) The court must, while recognizing the narrowness of the tests enumerated in sections 118.3 and 118.4, construe the provisions liberally, humanely and compassionately and not narrowly and technically.

        . . .

[30]          These comments were moreover echoed by Létourneau J.A. of the Federal Court of Appeal in Johnston, supra. In this regard, Létourneau J.A. wrote as follows in paragraph 11:

Indeed, although the scope of these provisions is limited in their application to severely impaired persons, they must not be interpreted so restrictively as to negate or compromise the legislative intent.

[31]          In addition to the decisions cited by the parties, there has been a number of rulings by this Court on the application of sections 118.3 and 118.4 of the Act in cases involving persons with chronic fatigue syndrome. [3]

[32]          It goes without saying, however, that while certain decisions may enlighten the Court, each case stands on its own merits and must be decided on its own facts as these are revealed by the evidence analyzed on the basis of the burden of proof and degree of proof required. In this regard, it should be pointed out that the burden was on the appellant to prove on a balance of probabilities the facts establishing, in light of the conditions set out in the relevant provisions of the Act, entitlement to the credit claimed. The exercise of comparing facts which may present certain similarities therefore cannot replace the application of the statutory provisions, and of the requirements stated therein, to the circumstances proven in a given case.

[33]          As a condition of eligibility for the credit for mental or physical impairment, paragraph 118.3(1)(a.2) requires in particular a certification in the prescribed form by a medical doctor (or, depending on the impairment, by another of the persons mentioned) "that the impairment is 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." As well, paragraph 118.3(1)(b) requires the individual claiming the credit to file with the Minister, for a taxation year, the certificate described in paragraph (a.2).

[34]          The prescribed form, as we know, is form T2201. Not only must that form obligatorily be completed by one of the persons referred to in paragraph 118.3(1)(a.2), it must also certify that the impairment is a severe and prolonged mental or physical impairment the effects of which are those indicated, based on the various definitions set out in section 118.4 of the Act. The certificate in the prescribed form must then be filed with the Minister. The certificate requirement is not merely directory; it is mandatory. In MacIsaac v. Canada; Morrison v. Canada, [1999] F.C.J. No. 1898 (QL), the Federal Court of Appeal emphasized in the following terms, in paragraphs 3 to 6 of its reasons for judgment, the mandatory nature of this requirement laid down in paragraph 118.3(1)(a.2):

[para 3] Revenue Canada issued T-2201 Forms to be completed by doctors who have examined applicants for disability tax credits. Those forms were filled out in both cases but it is unclear to us as to whether they are in compliance with the above sections.

[para 4] The Tax Court Judge allowed both appeals on the basis that in his judgment both Respondents met the criteria established by Section 118.4(1). In considering the forms at issue in this appeal he said in the Morrison case:

"I have therefore concluded that the requirement in paragraph 118.3(1)(a.2) is directory only, and not mandatory."                                                                                                                           

[para 5] While we sympathize with both Respondents and with the position taken by the Tax Court Judge we cannot agree with him on this question. Section 118.3(1)(a.2) of the Income Tax Act is not merely directory. It is mandatory. Simply put, there must be a certificate by the doctor that the individual suffers impairments in the language of these subsections. This Court held to the same effect in Partanen v. Canada, [1999] F.C.J. 751 and we feel bound by this decision.

[para 6] It is not obvious that putting the questions as they are in this form results in a thorough consideration by the doctor of the questions confronting him. Putting checks in boxes is perhaps not the best way of eliciting a just result. Nevertheless the Act requires such certificates as a prerequisite to obtaining disability tax credits.

(Emphasis added.)

[35]          In the instant case, the prescribed form T2201 completed by Dr. Hyde at the appellant's request does not indicate that the appellant suffers from a severe and prolonged mental or physical impairment within the meaning of sections 118.3 and 118.4 of the Act. Although the appellant expressed some reservations about the probative value of the answers given by Dr. Hyde, I should point out here that it was the appellant herself who decided to have the form filled out by that physician, whom she moreover consulted on a number of occasions. Furthermore, according to the letter dated June 30, 1998 (respondent's documents, tab 4) which he sent to counsel for the appellant, Dr. Hyde is clearly a physician who has extensive knowledge of chronic fatigue syndrome and who was most certainly able to appreciate the nature and extent of the symptoms presented by the appellant. As stated in his curriculum vitae at the beginning of that letter, he has worked in a Francophone environment at the Hôtel-Dieu de Montréal and published a study in French on chronic fatigue syndrome. I therefore find it implausible that he might not have understood or that he might have misinterpreted the questions asked.

[36]          With respect to the 1998 taxation year, the appellant chose Dr. Georges Mailloux to complete the prescribed form. The tax authorities sent him the form as well as a questionnaire. The prescribed form was not completed by Dr. Mailloux. At least, it was never filed with tax authorities. Moreover, the answers given in the questionnaire and stated to apply to 1997 and 1998 do not provide a basis for concluding that the appellant had a severe and prolonged mental or physical impairment as contemplated in sections 118.3 and 118.4 of the Act. Here again, the requirements of paragraph 118.3(1)(a.2) of the Act were clearly not met.

[37]          The absence of certification in prescribed form of the existence of a severe and prolonged mental or physical impairment for both 1997 and 1998 constitutes the basis of the assessments for those two years, as stated in paragraphs 11 and 12 of the Reply to the Notice of Appeal. This fact was not disputed by counsel for the appellant.

[38]          The absence of certification in prescribed form that the appellant has a severe and prolonged impairment within the meaning of sections 118.3 and 118.4 of the Act is fatal since the conditions stated in subsection 118.3(1) are cumulative. In the circumstances, it is pointless to conduct a detailed analysis of the evidence adduced by the appellant to determine whether, on a balance of probabilities, she in fact has a severe and prolonged mental or physical impairment that meets the condition set out in paragraph 118.3(1)(a) of the Act.

[39]          I will nevertheless say that the evidence presented was far from convincing on this point, even though I must acknowledge the serious and severe nature of the appellant's ailment. Thus, for example, while the appellant testified that she had to wait until she had taken her first meal before she could dress herself without taking an hour or more to do so, she did not state how much time she had to devote to that activity when she dressed after eating. As to feeding herself, she testified that she occasionally prepared light meals for herself. She did not specify the amount of time required to do this and to eat. She also testified that she took walks with her dog and sometimes went shopping, although she had to limit the length of her outings as a result of her illness. She provided no details concerning the rate at which she walked or the frequency of the breaks she had to take.

[40]          Lastly, I would note that the receipts the appellant attached to her income tax returns for 1997 and 1998 show numerous automobile trips made from Jonquière to Québec, Montréal and Ottawa, in particular to meet her doctors, including Dr. Hyde, and her lawyer. These were trips of several hours in length which the appellant was able to make, which indicates a certain ability to perform activities going beyond those described as basic activities of daily living in paragraph 118.4(1)(c) of the Act.

[41]          In view of the foregoing, the appeals are dismissed.

Signed at Ottawa, Canada, this 7th day of September 2001.

"P. R. Dussault"

J.T.C.C.

Translation certified true on this 12th day of June 2002.

[OFFICIAL ENGLISH TRANSLATION]

Erich Klein, Revisor

[OFFICIAL ENGLISH TRANSLATION]

2000-452(IT)I

BETWEEN:

ÉDITH BOUCHARD,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeals heard on June 15, 2001, at Québec, Quebec, by

the Honourable Judge P. R. Dussault

Appearances

Counsel for the Appellant:                    Gaétan Drolet

Counsel for the Respondent:                Vlad Zolia                       

JUDGMENT

The appeals from the assessments made under the Income Tax Act for the 1997 and 1998 taxation years are dismissed, the whole in accordance with the attached Reasons for Judgment.

Signed at Ottawa, Canada, this 7th day of September 2001.

"P. R. Dussault"

J.T.C.C.

Translation certified true

on this 12th day of June 2002.

Erich Klein, Revisor