[OFFICIAL ENGLISH TRANSLATION]
2000-2127(IT)I
BETWEEN:
BRUNO MALTAIS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on June 18, 2001, at Québec, Quebec, by
the Honourable Judge Alain Tardif
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Stéphane Arcelin
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1998 taxation year is allowed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 15th day of August 2001.
|
"Alain Tardif" |
J.T.C.C.
Translation certified true
on this 22nd day of January 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20010815
Docket: 2000-2127(IT)I
BETWEEN:
BRUNO MALTAIS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Tardif, J.T.C.C.
[1] This is an appeal for the 1998 taxation year; it concerns a claim for a disability tax credit under section 118.3 of the Income Tax Act ("the Act"), which reads as follows:
Section118.3: Credit for mental or physical impairment
(1) Where
(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, and
(iii) an impairment not referred to in subparagraphs (i) or (ii), 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.
[2] The appellant was the only person who testified in support of his appeal. He argued that he was entitled to the credit because his spouse's ability to think, perceive and remember was restricted and affected markedly, that is, all or substantially all of the time. He said that in 1998, his spouse required an inordinate amount of time to perform some activities.
[3] The documentary evidence was filed by consent. It showed that the appellant's spouse had a severe illness in 1998.
[4] The appellant argued that his spouse's illness was a severe one with numerous and difficult consequences for all members of the family. That assessment of the severity of the illness was, in a way, confirmed by the frequency and duration of his spouse's many hospital stays.
[5] Exhibit I-3, which describes the number and duration of those hospital stays, should be reproduced:
[TRANSLATION]
. . .
SUBJECT: Hospitalization certificate
Name: Claire Fortin
Date of birth: 1947-09-11
. . .
This is to certify that Claire Fortin has been hospitalized 19 times at the Centre hospitalier Robert-Giffard under the care of Dr. Jean-Charles Lavallée:
- From January 27, 1987, to March 13, 1987;
- From June 8, 1989, to June 28, 1989;
- From November 21, 1989, to January 23, 1990;
- From February 4, 1990, to March 1st, 1990;
- From April 24, 1990, to May 15, 1990;
- From November 16, 1990, to December 7, 1990;
- From February 6, 1991, to February 8, 1991;
- From March 14, 1991, to June 11, 1991;
- From August 13, 1991, to September 10, 1991;
- From September 13, 1991, to September 19, 1991;
- From October 3, 1992, to November 20, 1992;
- From December 17, 1992, to January 6, 1993;
- From March 4, 1993, to April 1st, 1993;
- From August 29, 1993, to September 15, 1993;
- From November 3, 1993, to November 24, 1993;
- From June 28, 1995, to August 3, 1995;
- From August 7, 1995, to December 28, 1995;
- From September 29, 1996, to June 12, 1997;
- From September 25, 2000, to December 7, 2000.
[6] Finally, I am also reproducing the relevant parts of the questionnaire filled out by the attending physician concerning the nature of the illness as well as question 4 and the answer (Exhibit I-2):
[TRANSLATION]
. . .
1. How many times did you meet with Ms. Fortin in 1996, 1997 and 1998?
A. 20 times
2. Explain in concrete terms how Ms. Fortin's ability to perceive was restricted in 1998.
A. Since 1987, she has had a psychotic illness that has led to deficiencies in the higher abilities and a decline in judgment, energy volition and day-to-day organization.
3. Explain in concrete terms how Ms. Fortin's ability to think was restricted in 1998.
A. She is rather distracted, inattentive, often slow and depressed, and this is always a result of the development of the illness.
4. Explain in concrete terms how Ms. Fortin's ability to remember (memory) was restricted in 1998.
A. When she was inattentive, distracted and preoccupied by her symptoms and tears, she had trouble remembering.
5. What impact did those restrictions have on the performance of her basic activities of daily living in 1998?
A. All of the deficiencies I have listed could not make her daily tasks and activities any easier, far from it.
6. How did you assess that impact on the performance of the basic activities of daily living in 1998?
A. Not personally, but people from the CLSC and family members were able to observe it.
7. How did she manage to live alone in 1998?
A. She lived with her husband and children. She did not live alone or independently.
8. What do you mean when you claim that her condition stabilized in 1998?
A. The psychotic and depressive symptoms had diminished or were in remission, but the illness and vulnerability were still present, as were the deficiencies.
. . .
[7] The documentary evidence therefore shows objectively that the appellant's spouse had a severe illness with consequences and effects that could prevent her from thinking reasonably for long periods of time.
[8] Although the appellant admitted on cross-examination that his spouse was capable of thinking, perceiving and remembering, and although he stated that she had a driver's licence and that her behaviour could be reasonably acceptable, especially when she took all the medication she was prescribed, my reading and understanding of the Act's provisions are that a person's level of physical or mental disability must be such that the person is never, or almost never, capable of being self-sufficient. When the problem is a physical or mechanical one, it is much easier to evaluate it and assess the extent of its effects.
[9] The appellant said that his spouse had good periods and periods that were not so good. He answered my questions by saying that his spouse was able to shop, make purchases and use a credit card during some periods. Is this sufficient in itself to conclude that the disability was not severe and prolonged enough? I do not think so.
[10] When the problem involves a mental disability, the exercise is much more difficult and complicated, since the outward signs are not always visible or apparent. Moreover, a person who has such a disability may break down at any time without there being any indications or warning signs.
[11] In fact, the good periods described by the close contacts of the appellant's spouse were basically temporary and isolated since the illness or disability was always present and was likely to produce effects at any time without warning.
[12] This is a situation in which it is not easy to decide, especially since there seems to be contradictory case law.
[13] I must decide on the basis of evidence that has a medical dimension. Not only do I not have all the knowledge necessary to assess all the details and subtleties thereof, but I must also assess evidence that is contradictory in some respects.
[14] In the circumstances, I am relying on the only objective piece of information in the evidence, namely, the numerous and lengthy hospital stays by the appellant's spouse. I think that so numerous and lengthy hospital stays attest to the severity of her illness and above all to the fact that her ability to perform certain activities of daily living was markedly restricted.
[15] I am also taking account of the Federal Court of Appeal's judgment in Friis v. Canada, [1998] F.C.J. No. 823, in which Linden J.A. stated the following:
In my view, this section 28 application should be allowed in the light of this Court's decision in Johnston v. Canada [1998] F.C.J. No. 169 which was released following the Tax Court Judge's decision in this case. In that case, Justice Létourneau, quoting Judge Bowman in another case (Radage v. R. [1996] 3 C.T.C. 2510), indicated that these "provisions must be given a humane and compassionate construction" and should not be interpreted "so restrictively as to negate or comprise the legislative intent", which is to "provide modest relief to persons who fall within a relatively restricted category of markedly physically or mentally impaired persons. The intent is neither to give the credit to every one 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."
[17] I therefore interpret the facts in a humane and compassionate way, and I allow the appeal.
Signed at Ottawa, Canada, this 15th day of August 2001.
|
"Alain Tardif" |
J.T.C.C.
Translation certified true
on this 22nd day of January 2003.
Sophie Debbané, Revisor