[OFFICIAL ENGLISH TRANSLATION]
98-2802(IT)I
BETWEEN:
CLAUDE BÉLANGER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on March 28, 2000, at Québec, Quebec, by
the Honourable Judge P.R. Dussault
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Alain Gareau
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1996 taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 5th day of April 2000.
|
"P.R. Dussault" |
J.T.C.C.
Translation certified true
on this 24th day of October 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20000405
Docket: 98-2802(IT)I
BETWEEN:
CLAUDE BÉLANGER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Dussault, J.T.C.C.
[1] This is an appeal from an assessment for the 1996 taxation year in which the Minister of National Revenue (the "Minister") disallowed the appellant's claim for a tax credit for mental or physical impairment provided for in sections 118.3 and 118.4 of the Income Tax Act (the "Act").
[2] Paragraphs (a) to (c) of subsection 118.3(1) state that the following conditions must be present to be entitled to the tax credit for mental or physical impairment:
(1) 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) a medical doctor, or where the impairment is an impairment of sight, a medical doctor or an optometrist, has certified in prescribed form that the individual has 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, . . .
[3] In addition, for the purposes of section 118.3 and subsection 118.4(1), paragraphs (a) to (d) of subsection 118.4(1) provide as follows:
(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.
[4] The appellant and Dr. Nil Lefrançois testified.
[5] The appellant, now 49 years old, has suffered from cerebral palsy since birth. According to a medical report completed on March 13, 1995, by Dr. Jacques Laflamme of the Clinique de médecine industrielle du Québec filed in evidence by the appellant (Exhibit A-1), the cerebral palsy [TRANSLATION] "would have resulted in a cerebral motor disability". In the report, Dr. Laflamme adds:
[TRANSLATION]
Mr. Bélanger has made many efforts to try to recover from his condition and was, for a long time, at the Institut Cardinal Villeneuve de Québec. Since then, he has been treated neurologically and rheumatologically and also by his family doctor, Dr. Nelson Turmel. Since January, he has already seen his doctor two or three times.
Mr. Bélanger reports repetitive vertebral strain and also muscular strain in his hips and right leg.
[6] Following an in-depth examination, Dr. Laflamme concluded as follows:
[TRANSLATION]
After studying the hospital records of Hôtel-Dieu de Québec, to which Mr. Bélanger gave us access, and following today's examination, I noted that Mr. Bélanger's health condition seems to be deteriorating in the last few years. In the wake of the clinical examination completed today and after consulting his previous medical records, it may be affirmed that Mr. Bélanger suffers from cervical and multi-stage lumbar diskarthrosis, which, because of this, greatly restricts him in his work. It would appear that he has increasing difficulty in adjusting to his motor impairments. There is also a psychosomatic component, which potentiates this adjustment difficulty.
In the circumstances, in order to adapt his work to his physical and mental health, some restrictions should be imposed:
(1) Avoid certain physical work and having to lift weights heavier than 5 kilos;
(2) Avoid repetitive movements flexing or extending the cervical and lumbar spinal column;
(3) Avoid any major physical effort;
(4) Avoid climbing ladders or to high places.
In short, Mr. Bélanger should be assigned exclusively to sedentary work.
[7] The appellant also submitted numerous other documents in evidence relating to his medical cerebral palsy reports (Exhibit A-2), the periods when he stopped working (Exhibit A-3), his work accidents (Exhibit A-4) and his physical disabilities and their evolution (Exhibit A-5).
[8] The appellant also gave the Court some documents concerning his credits in previous years (Exhibit A-6) and a notice of assessment from Revenu Québec granting him the credit for a severe and prolonged mental or physical impairment for the 1998 taxation year (Exhibit A-8).
[9] Lastly, the appellant submitted a biography of himself written by Lionel Allard. It was entitled [TRANSLATION] "The Wounded Gull" and was published by Éditions Leméac Inc. in 1983. It traces the significant moments of his life and development up to the age of 30.
[10] The Disability Tax Credit Certificate ["certificat pour personnes handicapées"] (Form T2201 F (97)), which Dr. Nil Lefrançois completed on July 13, 1998, was submitted in evidence during his testimony (Exhibit I-1). On the certificate, Dr. Lefrançois indicates that the appellant is restricted in "walking" and "speech". However, he answered that the appellant can walk and talk without requiring an inordinate amount of time to perform those activities.
[11] In an additional questionnaire completed on August 10, 1998, Dr. Lefrançois reports on the effects of cerebral palsy, which translate into [TRANSLATION] "difficulty in articulating words". In reply to the question whether Claude Bélanger needs assistance, a device or therapy in order to speak, the answer was "no". To the question whether Mr. Bélanger requires an inordinate amount of time to speak, the reply was also "no".
[12] Despite some comments concerning the conditions required to receive the tax credit for mental or physical impairment and how they are to be interpreted, Dr. Lefrançois did not modify his assessment of the appellant's impairment in any way.
[13] A review of the documents submitted in evidence shows not only the suffering, the challenges and the difficulties experienced by the appellant afflicted with cerebral palsy since birth but also the efforts he has made and the courage he has shown to reach the level of independence he enjoys today, despite the serious effects of his disability.
[14] Although it can be recognized, as counsel for the respondent has, that the appellant suffers from a severe and prolonged impairment, it must be noted that the effects of this impairment are not such that his ability to perform a basic activity of daily living is markedly restricted. There is also the finding of Dr. Nil Lefrançois, his physician, both in his statements on the certificate and in the above-mentioned questionnaire and in the answers he gave in his testimony.
[15] The appellant is an individual who presented his own case in an articulate manner. Although I was also able to note some speech difficulties, the appellant's ability to express himself clearly is not markedly restricted as required by subparagraph 118.4(1)(c)(iii) of the Act. His ability to walk is also not markedly restricted as provided for in paragraph 118.4(1)(d) of the Act.
[16] The conditions set out in paragraphs 118.3(1)(a.1) and (a.2), which are completed by those in paragraphs 118.4(1)(b), (c) and (d), not having been satisfied, the appeal is dismissed.
Signed at Ottawa, Canada, this 5th day of April 2000.
|
"P. R. Dussault" |
J.T.C.C.
Translation certified true
on this 24th day of October 2003.
Sophie Debbané, Revisor