95-3666(IT)I
BETWEEN:
BRUCE A. LEVER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on July 13, 1998 at Renfrew, Ontario, by
the Honourable Deputy Judge J.F. Somers
Appearances
Counsel for the Appellant: I. Jain
Counsel for the Respondent: P. Kramer
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1994 taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 5th day of August 1998.
|
"J.F. Somers" |
D.J.T.C.C.
Date: 19980805
Docket: 95-3666(IT)I
BETWEEN:
BRUCE A. LEVER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Somers, D.J.T.C.C.
[1] This appeal was heard in Renfrew, Ontario, on July 13, 1998, pursuant to the Informal Procedure of this Court, concerning the Appellant's 1994 taxation year.
[2] The issue in this case is whether the Appellant is entitled to an amount for mental or physical impairment pursuant to section 118.3 of the Income Tax Act (the "Act") in the computation of his non-refundable tax credits and tax payable for the 1994 taxation year.
[3] In assessing the Appellant, the Minister of National Revenue (the "Minister") made the following assumptions of fact:
"(a) the Appellant claimed the Disability Amount in respect of chronic severe Panic Disorder and Agoraphobia from which he suffers;
(b) the above-described impairments of the Appellant did not markedly restrict his ability to perform a basic activity of daily living during 1994; and
(c) the Appellant was not entitled to include the Disability Amount in the computation of his non-refundable tax credits and tax payable for the 1994 taxation year."
[4] In assessing the Appellant, the Minister relied on section 118.3 and subsection 118.4(1) of the Act which read in part as follows:
"Section 118.3: 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,
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.
...
Section 118.4: Nature of Impairment.
(1) 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.
..."
[5] The Appellant, born in 1957, retired from the Armed Forces in 1984 due to illness which became apparent in 1982. Subsequently, he worked as a commissionaire for five years. He relinquished that position in April 1992 realizing his disability and was unable to work. He has not worked since. He consequently obtained a pension under the Canada Pension Plan.
[6] The Appellant suffers a disability derived from Agoraphobia and Panic Disorder. Since 1992, the Appellant constantly stays at home, 85% of the time he locks the doors of his house because he is afraid of visitors, even family friends or neighbours. When somebody drives into his laneway, he gets panic attacks, becomes shaky and sweaty. He takes refuge in the recreation room in order to avoid encounters with other people except his wife and his son. Once a week he phones his mother who lives in British Columbia. These are the only people he can come in contact or communicate with. He therefore avoids situations which create these panic attacks.
[7] He stated that he has poor memory due to medication. His memory, according to him, is getting progressively worse. The Appellant admits that he can do light work around the house such as cooking. He does his banking and other outings only when accompanied by his wife.
[8] The disability tax credit certificate, dated January 25, 1995, signed by the Appellant and his medical doctor states that the Appellant is able to perceive, think and remember, do personal care (eating/dressing) without supervision and manage his personal affairs. At this hearing, he disagreed with the answers given on the certificate as to his mental functions. His own testimony does not allow me to contradict the answers stated on the certificate.
[9] Dr. Y.D. Lapierre, M.D., Department of Psychiatry at the University of Ottawa was a witness for the Respondent. He explained the Appellant's mental and physical state. The witness based his opinion on the Appellant's medical history by examining paper evidence, medical reports from his doctor and the Appellant's testimony in Court. Although Dr. Lapierre did not personally examine the Appellant, he could give his learned opinion on his health problems. According to this expert witness, the Appellant's mental and physical disorders can be treated with medication although not with the same level of success in all cases, but usually the disorders can be controlled at 70%.
[10] In his medical report, the witness explained the meaning of a panic attack:
"A panic attack is a discrete period of intense anxiety, fear and discomfort that is accompanied by a series of physical and intellectual or cognitive symptoms. The attacks may occur in a totally unexpected manner. They may be triggered by certain situations and indeed specific situations predispose certain patients to attacks. These situations are quite individualized to each sufferer. The anxiety attacks have a sudden onset, build to a peak rapidly, usually within ten minutes, and are accompanied by a sense of imminent danger or doom, with the natural response being an urge to escape from the location where the attack is occurring. Panic disorder is considered to be present when these panic attacks occur repeatedly and lead to a persistent concern over a period of time (at least one month) that they may reoccur.
Agoraphobia is anxiety about being in places or situations from which escape might be difficult or in which help may not be available in the event of a panic attack. It is rare for an individual to have agoraphobia as an isolated symptom. It is, however, a common outcome of panic disorder as a number of people tend to associate their panic attacks with specific situations which they then avoid in the hope of preventing the occurrence of further attacks.
A pure and uncomplicated panic attack does not lead to serious impairment of function, however, agoraphobia impairs the individual by the avoidance of situations such as travel to work, carrying out responsibilities and activities away from home, being in crowds, automobile travel, etc. These individuals can then become housebound and occasionally search for a companion for added security.
The treatment of these disorders is usually a combination of medication, cognitive psychotherapy and, at times, behavioural therapy for modification of the agoraphobic behaviour.
The limitations of functioning are derived from two sources. One is the anxiety accompanying the panic attacks. This is short-lived and as such does not produce a prolonged period of disablement. However, the behavioural changes associated with agoraphobia are more incapacitating in that the individual cannot leave his location of security without severe discomfort and apprehension. Within the "safe zone", there usually are no serious limitations."
[11] Based on general medical principles applicable, Dr. Lapierre gave his opinion as to the Appellant's mental and physical disorders. In his report he writes as follows:
"Based on the description, it is clear that Mr. Lever is able to function within the home and that his social interaction is severely limited away from the security of the home. In essential matters, he can extend his radius of movement away from home beyond and attend "essential business matters". Otherwise, these affairs have to be taken care of by his wife."
He concludes as follows:
"In the case at hand of Lever, it appears that this gentleman is able to function within the home. He is even able to attend essential business matters outside the home. He appears to communicate effectively and when accompanied can - albeit with difficulty - overcome agoraphobic limitations and attend important appointments, etc."
[12] By listening to the Appellant explain his problems in Court, Dr. Lapierre was able at first hand to arrive at the same conclusion as stated in his written report dated June 27, 1997.
[13] An explanation is given of the interpretation of subsection 118.4(1) in a decision from this Court in Brookshaw and Her Majesty the Queen [1994] 2 C.T.C. 2360 which reads in part as follows:
"In order to claim a credit for physical impairment under subsection 118.3(1) of the Act, an individual must have an impairment such that the effect of it would markedly restrict the individual's ability to perform a basic activity of daily living. Section 118.4 confines "markedly restricted" to situations where all or substantially all of the time, even with therapy and the use of appropriate devices and medication, the individual is unable (or requires an inordinate amount of time) to perform a basic activity of daily living."
[14] In the case of Wanda A. Campbell v. the Queen (95-2003(IT)I), Judge Rowe stated:
"There is no doubt the legislation is designed to bar the claim for all but the most severely handicapped."
[15] The disability tax credit certificate signed by the Appellant's personal physician Dr. S.E. Simson, Psychiatrist, stated that the Appellant is able to perceive, think and remember, can do personal care (eating/dressing) without supervision and manage his personal affairs. Dr. Y.D. Lapierre, Psychiatrist, arrived at the same conclusion. During the hearing, I was able to observe the Appellant's capability of testifying in a clear, articulate and logical fashion. There did not appear to be a great loss of memory suffered by the Appellant.
[16] Although the Appellant suffers a prolonged illness, he can perform his basic activities of daily living. The Appellant cannot work due to his impairment but work is not considered a basic activity of daily living pursuant to section 118.4 of the Income Tax Act.
[17] The evidence has shown that the Appellant has a serious prolonged mental and physical impairment but the Court cannot conclude that the Appellant is markedly restricted all or substantially all of the time.
[18] The appeal for the 1994 taxation year is hereby dismissed.
Signed at Ottawa, Canada, this 5th day of August 1998.
|
"J.F. Somers" |
D.J.T.C.C.
COURT FILE NO.: 95-3666(IT)I
STYLE OF CAUSE: Bruce A. Lever and H.M.Q.
PLACE OF HEARING: Renfrew, Ontario
DATE OF HEARING: July 13, 1998
REASONS FOR JUDGMENT BY: The Honourable Deputy Judge J.F. Somers
DATE OF JUDGMENT: August 5, 1998
APPEARANCES:
Counsel for the Appellant: I. Jain
Counsel for the Respondent: P. Kramer
COUNSEL OF RECORD:
For the Appellant:
Name: I. Jain
Firm: Renfrew County Legal Clinic
Renfrew, Ontario
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada