Tax Court of Canada Judgments

Decision Information

Decision Content

Docket: 2002-3014(IT)I

BETWEEN:

PEGGY DOE*,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

____________________________________________________________________

Appeals heard on February 10 and December 2, 2003 at Toronto, Ontario.

Before: The Honourable Justice Gerald J. Rip

Appearances:

For the Appellant:

The Appellant herself

Counsel for the Respondent:

A'Amer Ather

____________________________________________________________________

JUDGMENT

          The appeal from the assessment made under the Income Tax Act for the 2000 taxation year is allowed and the matter is referred back to the Minister of National Revenue for reassessment and reconsideration on the basis that the appellant is entitled to claim a non-refundable disability tax credit pursuant to subsections 118.3 of the Act.

          The appeal from the assessment made under the Act for the 2001 taxation year is quashed.

Signed at Ottawa, Canada, this 22nd day of December, 2003.

"Gerald J. Rip"

Rip, J.


Citation: 2003TCC944

Date: 20031222

Docket: 2002-3014(IT)I

BETWEEN:

PEGGY DOE*,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

Rip, J.

[1]      Peggy Doe has appealed assessments of tax for 2000 and 2001 claiming a disability tax credit ("DTC") pursuant to section 118.3 of the Income Tax Act. Apparently she has not filed a notice of objection with respect to the year 2001. I advised her that the appeal for the 2001 taxation year would be quashed.

[2]      The Minister disallowed the claim by Ms. Doe on the basis that she was not suffering from a severe or prolonged mental or physical impairment, the effects of which were such that her inability to perform a basic activity of daily living was markedly restricted all or substantially all of the time, even with therapy and the use of appropriate devices and medication, within the meaning of subparagraph 118.4(1) of the Act.

[3]      In 1998 Ms. Doe was diagnosed with epilepsy. Since that time she has suffered from severe seizures that are resistant to treatment. In 1993 she began a series of bone-grafting surgeries to reconstruct her jaw; this has lead to erosion of the right side of her face.

[4]      The Crown produced the Disability Tax Credit certificate ("DTC certificate") filed by Ms. Doe and completed by Dr. B. Woodside, a psychiatrist. Dr. Woodside answered in the affirmative each of the questions posed in the questionnaire part of the DTC certificate, namely that Ms. Doe can see, walk, speak, perceive, think and remember, hear, feed and dress herself and can personally manage bowel and bladder functions. However, he noted that "Ms. Doe has idiopathic epilepsy which is responding poorly to treatment and which represents a significant impairment for her".

[5]      Dr. Woodside was not present at trial. Ms. Doe confirmed that he checked the various boxes confirming that she is able to perform all of the activities of daily living. Apparently Ms. Doe asked Dr. Woodside to complete a new certificate but, according to Ms. Doe, he refused to do so because that would indicate that perhaps he made a mistake the first time and in his view he made no mistake.

[6]      Ms. Doe indicated that she was not only under the care of Dr. Woodside but also of a neurologist and "a lot of other doctors as well". Ms. Doe indicated that she has difficulty coping with daily life and indicated that she doubled her medication the night prior to trial so that she would be able to attend trial without the probability of having a seizure.

[7]      Ms. Doe stated that she can take a bath, cook and do many things but not on her own. For example, she stated, "it is unwise for me to turn on burners or anything involving heat that does not have a timer on it to shut it off automatically". She also stated that while she baths on her own, she either requires having someone in her apartment who can make sure that she gets in and out of the bathtub without difficulty, or she has to have a system in place whereby she telephones someone advising that person that she is taking a bath and if she does not phone them back within a limited time period for that person attend at her home immediately to ensure that she is not in danger.

[8]      As far as preparation of food is concerned Ms. Doe stated since her bone-grafting surgery she has been on a semi-solid or liquid diet so not much is required to prepare food. In the year 2000 she ate semi-solid food such as scrambled eggs. She said that during 2000 both she and neighbours prepared food for her. She also had "Meals on Wheels" deliver her food or she purchased "take-out stuff", which is the basis of her diet. She also drank Ensure, which is a canned vitamin supplement.

[9]      In view of Dr. Woodside's negative DTC certificate I indicated to Ms. Doe that I would prefer to adjourn the hearing and have Dr. Woodside attend and testify at a later date While I was impressed with the evidence I heard, I was aware of the following comments of Stone, J. in Buchanan v. R.[1]:

... the Court must be faithful to the words of the Income Tax Act. The Act requires the positive certificate of a physician. That means that the function of the Tax Court Judge is not to substitute his or her opinion for that of a physician, but to determine, based on medical evidence, whether a negative certificate should be treated as a positive certificate.

[10]     Ms. Doe agreed and the matter was adjourned to a later date at which time Dr. Woodside appeared. Dr. Woodside is a past-president of the Ontario Medical Association and is the current head of the Canadian Psychiatric Association. He is currently practicing at the Toronto General Hospital and he is an Associate Professor of medicine at the University of Toronto. He has been Ms. Doe's psychiatrist since 1983, treating her primarily for her eating disorder, depression, obsessive-complusive disorder and post-traumatic stress disorder.

[11]     Dr. Woodside described several of Ms. Doe's psychiatric conditions affecting her ability to think, perceive and remember. These are:

(a)       Anorexia nervosa purging subtype. An illness where individuals do not eat because of a variety of psychological concerns. Dr. Woodside explained that as a result of her anorexia nervosa over a long period, Ms. Doe developed significant osteoporosis and lost all her teeth. She has been undergoing dental treatment to try and have metal posts implanted in her jaw so she can have permanent dentures installed. The thinning of her bones has required numerous bone grafts to establish adequate bone density in her upper and lower jaw to sink the posts; these operations rendered her "extremely" affected by her post-traumatic stress disorder, including during 2000.


(b)      Obsessive-compulsive disorder. A condition where people continuously experience obsessions and intrusive, unwanted thoughts that they cannot make go away and struggle to avoid performing compulsive activities, which includes things like hoarding, checking and ordering. Dr. Woodside described Ms. Doe's obsessive-compulsive disorder as continuous and that she has only had a partial response to treatment over the past ten years. She does think when suffering from obsessive compulsive-disorder, Dr. Woodside acknowledged, but her thinking process would not be described as normal by an average person;

(c)      Post-tramatic stress disorder. Ms. Doe's post-traumatic stress disorder is a consequence of having been sexually and physically abused by a family member for nearly 20 years and she experiences flashbacks of the unwanted physical or sexual attention about 50% of the days. When experiencing post-traumatic stress disorder she thinks and perceives, but not in the way that a normal person would identify as acceptable or normal in any way, shape or form, Dr. Woodside declared.

[13]     Dr. Woodside acknowledged that he is not the physician in charge of her seizure disorder but is in close communication with Ms. Doe's neurologist, Cathy Zahn, who treats the disorder. Over the years, he said, a number of neurologists have been involved in Ms. Doe's case. He said that he is familiar with Ms. Doe's status since she has attended at his clinic once every one or two weeks. He advised that Ms. Doe has epileptic seizures two or three times per week and sometimes as many as two per day. Dr. Woodside estimated Ms. Doe was having seizures more than once a day for more than half the year and it was rare for her "to go more than two days" without a seizure. He stated that sometimes she has to reschedule an appointment with him because of a seizure.

[14]     Ms. Doe, Dr. Woodside explained, has temporal lobe epilepsy, a condition difficult to diagnose. He described her seizures as "poorly controlled", a reference to the frequency of seizures by Ms. Doe during 2000. "In addition to the period when the seizure occurs, an individual who has a seizure of the type that Ms. Doe has will then experience a period of time after the seizure when they are sedated, cannot speak, have to lie down and sit." This is referred to medically as a "post-ictal" period which "can go on for hours or up to a day where a patient's ability to perform all basic activities of life is severely impaired".

[15]     During a "post-ictal" period, Dr. Woodside stated, the person is essentially immobile. "They may stagger around a little bit but they would be unable to do any focused activity." Recovery is over the course of a few hours to a few days. During 2000 Ms. Doe's seizures were "extremely frequent". Dr. Woodside recalled that she was compliant with the medication but the seizures "couldn't be controlled. And she was post-ictal, post-seizure, most of the time during that year".

[16]     Dr. Woodside described an individual having as many frequent seizures as did Ms. Doe, to exist "in a condition where they are continuously afraid for their life". They require people to be present to take a bath, for example. They risk having seizures at random, without warning, Dr. Woodside declared.

[17]     Respondent's counsel queried Dr. Woodside with respect to specific defined activities of daily living. In the DTC certificate Dr. Woodside acknowledged that Ms. Doe could perceive, think and remember but at trial he opined that the quality of her ability to perceive, think or remember is markedly abnormal and "that nobody would acknowledge that it was an acceptable way to perceive, think or remember". Dr. Woodside compared Ms. Doe's "perceiving, thinking and remembering" to what he considered normal and he considered her thinking "out of the range of normal" continuously throughout the year. He also questioned her ability to feed herself, in particular, related to her past anorexia nervosa; "she had a continuous struggle to decide that it was okay to eat, which was a residual part of her illness". As far as walking is concerned, Dr. Woodside said when Ms. Doe was post-ictal, her walk was not normal, it was more of a stagger, walking with a cane or holding the wall. Similarly, when post-ictal, she may have spoken in a "slurred fashion".

[18]     Dr. Woodside's view is that the DTC certificate does not take into account certain psychiatric illnesses, in particular, the illness suffered by Ms. Doe. In particular, when he completed the DTC certificate, he found the DTC certificate obscure and not appropriate for mental illness; it contains no established criteria for mental impairment. The physician has to make a judgment call. In his view, the effects of Ms. Doe's illness are such that her ability to perform at least a basic activity of daily living is markedly restricted, bearing in mind the criteria stated in subsection 118.3(1).

[19]     Ms. Doe is able to physically perform, more or less, all of the basic activities of daily living defined in paragraph 118.4(1)(c) of the Act. However, it is quite apparent that the degree of her ability to perform those activities in 2000 was seriously affected by the unpredictability and frequency of her epileptic seizures. In other words, while Ms. Doe may have been able to feed and dress herself, speak and be heard and walk, for example, any such activity was liable to be rudely interrupted by a seizure and be delayed during the post-seizure period. In Ms. Doe's case the seizures were - and are - frequent and, as Dr. Woodside commented in the DTC certificate, she responds poorly to treatment. Dr. Woodside inferred, and I concur with him, that when a person like Ms. Doe does not know from one moment to another when a seizure will occur - but knowing a seizure will occur, even with medication - that person's ability to perform any activity, including an activity of daily living, as defined, is markedly restricted. This is compounded by her various mental disorders which, in Dr. Woodside's opinion, affected - and affect - her ability to think as a so-called normal person would. All in all, Ms. Doe's physical and mental impairments affected her ability to perceive, think and remember for substantially all of the time during 2000. Dr. Woodside's testimony should be treated as a positive certificate.

[20]     The appeal for 2000 is allowed, with costs, if any; the appeal for 2001 must unfortunately be quashed.

Signed at Ottawa, Canada, this 22nd day of December, 2003.

"Gerald J. Rip"

Rip, J.


CITATION:

2003TCC944

COURT FILE NO.:

2002-3014(IT)I

STYLE OF CAUSE:

Peggy Doe v. The Queen

PLACE OF HEARING:

Toronto, Ontario

DATE OF HEARING:

February 10 and December 2, 2003

REASONS FOR JUDGMENT BY:

The Honourable Justice Gerald J. Rip

DATE OF JUDGMENT:

December 22, 2003

APPEARANCES:

For the Appellant:

The Appellant herself

Counsel for the Respondent:

A'Amer Ather

COUNSEL OF RECORD:

For the Appellant:

Name:

Firm:

For the Respondent:

Morris Rosenberg

Deputy Attorney General of Canada

Ottawa, Canada



*           Pseudonym for appellant

*           Pseudonym for appellant

[1]           2002 F.C.J. No. 838 (F.C.A.).

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