BETWEEN:
and
[OFFICIAL ENGLISH TRANSLATION]
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Appeal heard on October 5, 2005, at Montréal, Quebec.
Before: The Honourable Justice Louise Lamarre Proulx
Appearances:
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JUDGMENT
The appeal from the assessment under the Income Tax Act for the 2003 taxation year is allowed and the assessment is returned to the Minister of National Revenue for re-examination and re-assessment, based on the fact that the Appellant is entitled to the income tax credit for a serious, prolonged physical disability under Section 118.3 of the Act, for the taxation year at issue, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 14th day of December 2005.
Translation certified true
on this 17th day of May 2006
Monica F. Chamberlain, Reviser
BETWEEN:
JÉROME DROIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
[1] This is an appeal under the informal procedure in respect of the 2003 taxation year.
[2] The issue is whether the Appellant, whose left arm is not functional and has atrophied, in the same way as an amputated arm, may avail himself of the income tax credit for a severe and prolonged physical impairment.
[3] The facts on which the Minister of National Revenue (the "Minister") relied in order to establish his assessment are described at paragraph 6 of the Response to the Notice of Appeal (the "Response") as follows:
(a) On April 19, 2004, Dr. Jean-Marc Hébert completed form T2201 "Certificate for the Tax Credit for the Disabled", in respect of the patient's state of health;
(b) The diagnosis by Dr. Hébert was to the effect that the Appellant suffers from a post-traumatic "plexial lesion" of the left arm and is unable to use it;
(c) On December 17, 2004, in response to a questionnaire from the officer of the Minister, Dr. Hébert clarified that his patient had an "Arm that was not functional and atrophied in the same way as an amputation";
(d) On February 28, 2005, in a telephone conversation with the officer of the Minister, Dr. Hébert stated that the Appellant did not appear to take an excessive amount of time to dress or feed himself and that he was not noticeably limited, because his right arm compensated;
(e) After reviewing these evaluations, the Minister concluded that the Appellant was not markedly restricted in the basic activities of daily living, which are the following: seeing, walking, speaking, hearing, feeding and clothing himself, perceiving, reflecting, remembering and eliminating bodily waste.
[4] The Appellant explained that there are certain activities that he cannot do without the assistance of another person. He cannot tie a tie, button the right sleeve of a shirt and cannot insert the two ends of a zipper. He cannot fasten a coat, a parka or other garment that closes with a zipper. He cannot tie his shoelaces, he cannot cut pieces of meat, cannot peel potatoes or other vegetables, cannot carry heavy pans and cannot take hot pans out of an oven.
[5] For the past 10 years, the Appellant has had a common-law spouse and they have a son who is now nine years old. Prior to this relationship, his parents were the ones who helped him in the necessities of life described above. Now it is his spouse, and on occasion his young son, and when he is at work, his co-workers.
[6] The Appellant is a draftsman and estimator. He makes the plans for land surveyors. He performs his professional duties exclusively with a computer. He does not use a drawing table.
[7] As was stated in the Response, the physician's certificates did not state that the Appellant was severely limited in his ability to feed and dress himself. Nevertheless, a certificate was produced, prepared by an occupational therapist, Maryse Fortin, dated April 25, 2005. This certificate was produced as Exhibit I-4. Since the impairment was not caused by a degenerative disease, the certificate was accepted by Counsel for the Respondent for the purposes of the 2003 taxation year. She testified at the request of Counsel for the Respondent.
[8] The occupational therapist repeated in her testimony that what she had stated in the certificate was that the Appellant was markedly restricted in his ability to dress himself and in his ability to feed himself. This is what she wrote in her certificate:
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[TRANSLATION]
The patient cannot use his upper left limb, even to stabilize himself. He cannot prepare his meals without assistance. He cannot carry heavy or large dishes. He cannot cut some foods, even with adaptive devices or special knives. Since his left arm is limp, the subject finds it an encumbrance in dressing himself. He cannot tie shoelaces, close a zipper or buckle belts. At 33 years old, he cannot always wear clothing without fasteners. Cannot cut the nails on his right hand.
Diagnosis (if available): severe impairment of the left brachial plexus with total paralysis of the upper left limb, anaesthesia and significant atrophy.
[9] Counsel for the Respondent referred to three decisions of this Court, namely: St-Pierre v. Canada, [1996] T.C.C. no. 397 (QL); Champagne v. Canada, [1995] T.C.C. no. 1122 (QL); and Cardin v. Canada, [1995] T.C.C. no. 648 (QL). These three cases involved an arm that was atrophied or missing. The first two decisions dismissed the appeal and the third was in the Appellant's favour.
Analysis and conclusion
[10] Subsection 118.3(1) provides that if there is an impairment with respect to an individual's ability in feeding or dressing themselves, or in walking, a medical doctor or an occupational therapist, may certify in prescribed form.
[11] Subsection 118.4(1) reads as follows:
118.4(1) For the purposes of subsection 6(16), section 118.2 and 118.3 of 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 oneself or 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;
(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; and
(e) feeding oneself does not include:
(i) any of the activities of identifying, finding, shopping or otherwise procuring food, or
(ii) the activity of preparing food to the extent that the time associated with the activity would not have been necessary in the absence of a dietary restriction or regime; and
(f) dressing oneself does not include any of the activities of identifying, finding, shopping for or otherwise procuring clothing.
[12] The requirements in order to obtain income tax credit for mental or physical impairment are that, (a) the individual suffers from a serious and prolonged physical or mental impairment; (b) the effects of the impairment are such that the individual's ability to perform a basic activity of daily living is markedly restricted; (c) the application is accompanied by the certificate prescribed by the Act; and (d) no amount in respect of remuneration for an attendant, or care in a nursing home, is included in calculating a deduction under section 118.2 of the Act.
[13] In the case at bar, the fact that the Appellant suffers from a serious and prolonged physical impairment is not disputed. We must determine whether the effects of the impairment are such that his ability to perform the activities of daily life, which are the ability to dress and feed himself, is markedly limited.
[14] We note at paragraph 118.4(1)(b) that 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 unable or requires an inordinate amount of time to perform a basic activity of daily living.
[15] How are we to interpret the term "inordinate amount of time"? I refer to the decision of the Federal Court of Appeal in Johnstonv. The Queen, [1998] F.C.A. no. 169 (QL):
[18] No definition has been given of what constitutes an inordinate amount of time in the performance of the basic activities of daily living. In my view, the expression "inordinate amount of time" refers to an excessive amount of time, that is to say one much longer than what is usually required by normal people. It requires a marked departure from normality.
[16] I also refer to the decision of this Court in McMaster v. Canada, [1998] T.C.C. no. 301 (QL):
[13] By referring to the Federal Court of Appeal's decision in Johnstonv. The Queen, I can see that the objective test that must be used to decide such cases is whether the problem the individual has is such that he or she normally requires assistance from another person to perform the basic activity or requires an inordinate amount of time to perform the activity in comparison with someone who does not have the same disability.
[17] Here, the Appellant can perform some of the actions required to accomplish the daily activities in question, but is completely disabled with regard to others. The assistance of another person is then essential. The actions for which the assistance of another person is required are frequent and daily.
[18] It should be noted that the certificate produced as exhibit I-4, an example of "markedly restricted" in the ability to dress himself if "Your patient cannot dress without the daily assistance of another person".
[19] The Appellant could perhaps choose clothes without zippers, shoes without laces, eat food that is already cut up, or buy frozen vegetables. This would, however, imply a very marked divergence from what is considered normal.
[20] Since the evidence has revealed that the Appellant cannot, without the assistance of another person, accomplish many of the basic actions related to two activities of daily living, namely dress and feed himself, I believe that he is entitled to the tax credit for a severe, prolonged physical impairment.
[21] The appeal is accordingly granted.
Signed at Ottawa, Canada, this 14th day of December 2005.
"Louise Lamarre Proulx"
Lamarre Proulx, J.
Translation certified true
on this 17th day of May 2006
Monica F. Chamberlain, Reviser
COURT FILE NO.: 2005-1622(IT)I
AND HER MAJESTY THE QUEEN
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 5, 2005
REASONS FOR JUDGMENT: The Honourable Justice Louise Lamarre Proulx
DATE OF JUDGMENT: December 14, 2005
APPEARANCES:
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For the Appellant: |
Denise Droin Brez |
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Counsel for the Respondent: |
Mounes Ayadi |
Firm:
For the Respondent: John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario