Date: 20010509
Docket: 2000-1502-IT-I
BETWEEN:
NADIRA MARHRAOUI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Lamarre Proulx, J.T.C.C.
[1] This is an appeal under the informal procedure for the 1998 taxation year. The issue is whether the appellant is entitled to a tax credit for a severe and prolonged physical impairment.
[2] In making the assessment for the 1998 taxation year, the Minister of National Revenue ("the Minister") made the following assumptions of fact set out in paragraph 6 of the Reply to the Notice of Appeal ("the Reply"):
[TRANSLATION]
(a) when she filed her tax return for the 1998 taxation year, the appellant attached a T2201 F(98) form, the disability tax credit certificate, which had been completed on February 22, 1999, by Dr. Yves Chatelois, a licensed medical doctor, who stated that the appellant was suffering from the after-effects of poliomyelitis, which restricted her ability to walk;
(b) however, based on the doctor's answers on the T2201 F(98) form, it was not possible to conclude that the appellant's ability to perform the basic activities of daily living was markedly restricted.
[3] In confirming the assessment for the taxation year at issue, the Minister made the following assumptions of fact set out in paragraph 7:
[TRANSLATION]
(a) on September 20, 1999, the Minister sent Dr. Yves Chatelois a questionnaire to fill out;
(b) Dr. Chatelois filled out the questionnaire on October 8, 1999, and stated that the appellant was able to travel 50 metres with an orthosis if she rested a few times but that she was not unable to walk;
(c) the Minister determined that the appellant's ability to perform the basic activities of daily living was not markedly restricted during the year at issue.
[4] The appellant works full-time as an accounting clerk and has a seven-year-old son. In 1998, she was living with her brother, and now she lives with a boyfriend.
[5] Because the appellant contracted poliomyelitis at the age of 18 months, her right leg is paralysed from the hip to the foot. That leg is undeveloped, and she needs an orthosis to help her walk. (Based on what was said at the hearing, an orthosis is not an artificial limb, which is known as a prosthesis.) The orthosis bends, but this must be done manually.
[6] The disability tax credit certificate was filed as Exhibit A-1. It was signed by Yves Chatelois, a medical doctor. In the medical diagnosis box, he stated the following:
[TRANSLATION]
Sequela of poliomyelitis in the right leg. Must wear orthosis to get around. Must limit movements. Has great difficulty going up or down stairs.
[7] The question with regard to walking is as follows: "Is your patient able to walk, using an aid if necessary? (For example, at least 50 metres on level ground.)" The doctor answered: [translation] "Yes, but moves slowly and cautiously to avoid falling".
[8] Exhibit A-2 is a questionnaire that the Department of National Revenue sent to the doctor who signed the certificate. It is dated September 20, 1999. This time, his answers were as follows:
[TRANSLATION]
Q. Was your patient able to walk 50 metres using a special aid (e.g. cane, crutch, prosthesis, orthosis or walker)?
A. No.
Q. Please explain and indicate the type of aid used and how often it was used.
A. Orthosis right lower limb. Cannot walk 50 metres at a time without stopping, even with orthosis.
[9] The doctor also stated in the questionnaire that the patient was able to walk 50 metres with rest periods.
[TRANSLATION]
Q. Did your patient take an inordinate amount of time to walk 50 metres even with the use of therapy, medication or aids?
A. Because of the weight of the prosthesis, which extends from the bottom of the foot to the hip, muscle weakness and pain, it sometimes takes a long time to cover the distance in question.
Q. Indicate the percentage of time in 1998 during which your patient was UNABLE to walk 50 metres even with the use of aids, devices, medication or therapy.
A. Is not unable to walk, but sometimes, in certain conditions (slippery, wet, frozen or uneven pavement), the time needed may vary.
[10] The appellant said that the prosthesis is not an aid with which she feels at ease. She finds it heavy and uncomfortable but indispensable. At work, she is not far from the photocopier and the fax machine, but her co-workers often help her out. During fire drills, she is the last one to come down. She is not involved in any sports and takes a car wherever she goes. She always wears pants and boots. She is a rather frail person. Although 1.67 metres tall, she weighs 45 kilograms. She is someone who needs assistance in her everyday life. She rarely goes to the grocery store and never goes by herself. As for housework, her boyfriend or someone else does the vacuuming. When she gave birth to her son, her mother came over from Morocco and helped her for a year and a half. When her spouse was in Spain, she was unable to keep her son. She cannot use public transportation. In the wintertime, because it is more difficult, she gets around very little.
Analysis
[11] Both parties referred to the decision by the Federal Court of Appeal in Johnston v. Canada, [1998] F.C.J. No. 169, in particular paragraphs 18, 22 and 23:
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.
...
However, the social or recreational activities of a claimant may be of such a nature as to evidence an ability to walk, dress or feed which is not markedly restricted. In my view, it is not the lifestyle per se of a claimant which is relevant to a determination of his inability, but the nature, length and frequency of any other activity that he performs since the performance of such other activity may contribute to establish that the performance of the basic activities of his daily living is not markedly restricted.
I am satisfied that it was proper for the learned Tax Court Judge to take into account other activities of the Applicant such as his driving and his frequent visits to play bridge or attend therapy for the purpose of determining his ability to walk and the amount of walking done by him.
[12] This is not an easy case to decide since there are examples of people who have lost a leg, and who not only walk, but go jogging. At the hearing, the appellant moved around slowly, leaning on furniture, and asked to testify sitting down. She said that a cane would not help her walk. It is possible that her undeveloped limb, which has no muscle strength, causes her more trouble than in the case of an amputation. Given the orthosis she must wear on her leg, walking requires an inordinate amount of effort. It extends from the bottom of her right foot to her hip.
[13] As counsel for the respondent noted, a number of disability tax credit cases turn on their own facts. One person may walk fairly well with an artificial leg, while others may have a great deal of difficulty. It may depend on the person's own muscle strength and the type of prosthesis or orthosis required.
[14] In the present case, in view of the type of orthosis required because of the existing but undeveloped limb, the evidence adduced by the appellant concerning the problems she has getting around, and the doctor's written answers, I believe it can be accepted that, for this appellant, walking is possible only with an inordinate amount of effort.
[15] The appeal is allowed without costs.
Signed at Ottawa, Canada, this 9th day of May 2001.
|
"Louise Lamarre Proulx" |
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
2000-1502(IT)I
BETWEEN:
NADIRA MARHRAOUI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on March 8, 2001, at Montréal, Quebec, by
the Honourable Judge Louise Lamarre Proulx
Appearances
Agents for the Appellant: Marie-Claude Lambert
Rachelle Pitre
Counsel for the Respondent: Pascale O'Bomsawin
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1998 taxation year is allowed, without costs, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 9th day of May 2001.
|
"Louise Lamarre Proulx" |
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]