Date: 19980126
CORAM: MARCEAU J.A.
STRAYER J.A.
LÉTOURNEAU J.A.
Docket: A-939-96
BETWEEN:
RAMA NARSING,
Applicant,
- and -
HER MAJESTY THE QUEEN,
Respondent.
A N D
Docket: A-942-96
BETWEEN:
BHASKAR NARSING,
Applicant,
- and -
HER MAJESTY THE QUEEN,
Respondent.
Heard at Vancouver, British Columbia, on Monday, January 26, 1998.
Judgment delivered from the Bench on Monday, January 26, 1998.
REASONS FOR JUDGMENT OF THE COURT BY: MARCEAU J.A.
Date: 19980126
CORAM: MARCEAU J.A.
STRAYER J.A.
LÉTOURNEAU J.A.
Docket: A-939-96
BETWEEN:
RAMA NARSING,
Applicant,
- and -
HER MAJESTY THE QUEEN,
Respondent.
A N D
Docket: A-942-96
BETWEEN:
BHASKAR NARSING,
Applicant,
- and -
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia,
on Monday, January 26, 1998)
MARCEAU J.A.
[1] These applications for judicial review are brought against a decision of a Deputy Tax Court judge which dismissed the joined appeals of both applicants, who are brother and sister, from the Minister's assessments denying them the disability tax credits they had claimed. The brother was refused a credit in respect of his sick mother for the 1992 and 1993 taxation years and the sister, in respect of both her sick mother and father, for the 1992, 1993 and 1994 taxation years. It is all the more understandable that the applicants would be unsatisfied with the decision since it contains no analysis, and the legislation on which it is based, paragraph 118(1)(b) and subsections 118.3(1) and 118.4(1) of the Income Tax Act,1 is particularly difficult to read and construe. But, unfortunately for the applicants, who addressed the Court themselves in a clear and well presented manner, we are all of the view that this Court has no reason, and therefore no power, to intervene.
[2] In the case of the brother, the result could be quickly reached. It is clear under the Act that the credit claimed is available only with respect to an impaired family member who is "wholly dependent" on the taxpayer, which requires, under the provision, that they both live "in the same establishment." The applicant and his mother did not live together in 1992 and 1993. There was no doubt, therefore, that the first condition for the entitlement to the credit was not fulfilled.
[3] In the case of the sister, the result was not so clear. She lived with her parents and she supported them in the years in question. The difficulty there was to determine whether the evidence adduced showed that both parents were sufficiently impaired to satisfy the strict requirements of the Act. In order for the impairment to be deemed severe enough within the meaning of section 118.3 and subsection 118.4(1) of the Act, the burden is on the person claiming the credit to prove that "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."2
[4] It is clear to us that, on the sole basis of the ambiguous medical certificates on file, not otherwise clarified by appropriate medical evidence, the Tax Court judge could not disapprove and reject the conclusions of the Minister.
[5] Both applications will, therefore, be dismissed.
"Louis Marceau"
J.A.
FEDERAL COURT OF APPEAL
Date: 10080126
Docket: A-939-96
BETWEEN:
RAMA NARSING,
Applicant,
- and -
HER MAJESTY THE QUEEN,
Respondent.
A N D
Docket: A-942-96
BETWEEN:
BHASKAR NARSING,
Applicant,
- and -
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
OF THE COURT
__________________
1 R.S.C. 1985 (5th supp.), as amended.
2 Paragraph 118.4(1)(b), which reads thus:
118.4. (1) For the purposes of subsection 6(16), sections 118.2 and 118.3 and this subsection, [...] ( 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;