Date: 20010907
Docket: 95-3818-IT-I
BETWEEN:
JULIUS P. ANDRASIK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
__________________________________________________________________
For the Appellant: The Appellant himself
Counsel for the Respondent: Lisa Macdonell
____________________________________________________________________
Reasons for Judgment
(Delivered orally from the Bench at Vancouver, British Columbia,
on Tuesday, March 5, 1996 and reduced to writing at
Ottawa, Ontario on September 7, 2001)
Margeson, J.T.C.C.
[1] The question before the Court for decision is whether or not the Appellant, Julius P. Andrasik and Her Majesty The Queen, 95-3818(IT)I, is entitled to claim the disability tax credit for the 1993 taxation year in computing his income for that year. The appropriate provisions of the Income Tax Act ("Act") are sections 118.3 and 118.4, and subsections 117.1(1) and 248(1), to a lesser extent.
[2] The sole question is whether or not the Appellant in the year in question was suffering from a disability referred to in this section. For him to be entitled to the credit, it must be a disability, which meets all of the requirements of the sections. The Appellant gave testimony and said that he was involved in an accident in 1973, his nose was crushed, he lost his sense of smell and he has been suffering from this ever since. It is completely gone, from what he says, and he considers it to be a severe impairment.
[3] He pointed out some of the difficulties that he has in daily living as a result of this impairment. On occasions he has found himself in danger because he cannot smell. On one occasion he went into a cooler where there was a leaking of ammonia gas and he was unable to detect it. Because of the assistance of somebody else who could smell it, he was able to get out without any apparent injury.
[4] There is no device available for him to alleviate this situation. There is nothing that will help him bring back his sense of smell.
[5] On another occasion that he referred to, he saw a person applying a gas mask and was told that there was a leaking of chlorine gas in the area and he was told to vacate the area. Again he was only able to extricate himself from this situation by the assistance of other people.
[6] On one occasion he consumed spoiled milk, because he was unable to detect that it was bad. This was caused by his lack of the sense of smell. He was not warned by the smell. He pointed out that the sense of smell and taste sometimes go hand in hand and one enhances the other. One without the other is not necessarily that acute.
[7] Up until 1994, he had an accountant who did his tax work and the Court assumes from what he said that the accountant did not claim the disability tax credit. He came across line 316 in the information guide provided to him by Revenue Canada in his 1993 return and he noted the words "disability tax credit availability" and noted the word "perceive". That led him to conclude that he should be entitled to receive the disability tax credit because of the loss of the sense of smell.
[8] He filed a certificate for the disability tax credit in the year in question. It is before the Court as Exhibit R-1. He confirmed that in the certificate itself, in paragraph 12, the answer was "no" to the question as to whether or not the doctor believed that he had a prolonged impairment such as would qualify him for the disability tax credit under the appropriate sections. His evidence was that he has no certificate, which would indicate that he has a disability in keeping with the requirements of the sections referred to. However, that was his doctor's opinion and he does not agree with it. He says that he does qualify.
[9] The Respondent tendered the exhibit and called no evidence.
[10] In argument, the Respondent took the position that the Appellant is not entitled to the disability tax credit. She referred to paragraph 118.3(1)(a.2) of the Act. That paragraph says that where an individual has a severe and prolonged mental or physical impairment, which is later defined in paragraph 118.4(1)(a) as:
(a) an impairment is prolonged where it has lasted, or may 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;
Paragraph 118.3(1)(a.2) read as follows:
(a.2) a medical doctor, . . . 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), ...
Those are the appropriate provisions.
[11] Counsel for the Respondent says that the Appellant is not entitled to the tax credit, first of all, because he has not complied with paragraphs 118.3(1)(a.2) or 118.3(1)(b) of the Act.
[12] During his argument, the Court asked the Appellant if he could point it to any provision of the Act which would allow the Court to get around that section or if he could refer to any other part of the Act or any other argument that could convince the Court that it has any jurisdiction to disregard what would appear to be a prerequisite to the availability of the tax credit. He was unable to do so. Counsel takes the position that there is a prerequisite. One cannot obtain the disability tax credit until one has filed the requisite certificate. It has not been filed, therefore the appeal should be dismissed.
[13] Secondly, her position was, regardless of that, when you look at the definition of the requisite impairment in paragraph 118.4(1)(c) of the Act:
(c) a basic activity of daily living in relation to an individual means
(i) perceiving, thinking and remembering,
. . .
The Appellant does not meet the requirements.
[14] There is no doubt that it is the perceiving, thinking and remembering that is in issue here. The Respondent's position is that perceiving, thinking and remembering must be taken together in order for you to qualify for the disability under heading (c). As a basic activity of daily living, it must be perceiving, thinking and remembering. One must be unable, for all or basically all of the time, to perform that basic activity of daily living or that one takes an inordinate amount of time to perform that basic activity of daily living because one's perceiving, thinking and remembering has been disabled.
[15] She says that when you consider the term "smell" and look at what has to be the interpretation of subparagraph 118.4(c)(i), one must consider perceiving, thinking and remembering together. Even if she were prepared to admit that smelling is to some extent, some form of perceiving, it is not perceiving in this sense under subparagraph 118.4(c)(i) of the Act. Perceiving there means in the mental sense of being aware of or being able to understand things. It must be taken in conjunction with thinking and remembering, not just in conjunction with what perceiving means in the definitional sense.
[16] The Appellant referred to the definition in the dictionary of the word "perceiving". Certainly if you take the term "perceiving" in its broadest sense, the Court would conclude that sensing or smelling might have something to do with perceiving in certain situations. But if one considers it in the more restrictive sense, and if counsel is right, then perceiving as used in section 118.4 of the Act has to do with the mental side and not the physical aspect as in the sense of smell, smelling is a physical attribute. Even if it is conceivable that even when one is attempting to understand something in certain situations, smelling may remotely be a part of trying to perceive, her proposition is that it is not, and even if it were, all three aspects, (perceiving, thinking and remembering), must be considered jointly and all three of them must be affected. That is her position, so she says the Appellant does not qualify.
[17] The Appellant says that as far as he is concerned, there is an impairment of the neural system according to the definition in the dictionary and according to Income Tax Bulletin 519R, which he referred to on page 3. His understanding from that bulletin is that smelling is a function of the neural system. Consequently, it is a part of perceiving, thinking and remembering and, therefore, he qualifies for the disability tax credit.
[18] He takes the position that his disability poses a real danger to him. His thinking is affected. He used the example of him having to test very frequently the fire alarm system because he is frightened that it is not working because he cannot smell smoke. Consequently, it has affected his daily living. He cannot smell flowers, he suffers a disability in that sense, that is part of his daily living. He believes that the previous two decisions with respect to his claim being rejected were merely rubber-stamping and he has not had a fair hearing as far as he is concerned. Those are the arguments.
[19] It is the Court's duty to decide in this case whether the Appellant has met the requirements of the Act. It is immaterial what an income tax bulletin might say. The Court is not bound by an income tax bulletin. Obviously the statement that was referred to in the income tax bulletin does not seem to conform even with the attitude that Revenue Canada appears to have taken with respect to these cases. This is the first case that this Court has ever heard on the sense of smell, and the Minister's attitude up to this point in time in rejecting the position of the Appellant would appear to be contrary to that stated position in the bulletin.
[20] The Court has to interpret the Act as it sees it. The bulletins are merely for the guidance of individuals. All they can be relied upon for, if they can be relied upon for anything, is that they indicate that at any point in time when the bulletin was written, the draftsmen believed that this would be the way that the section would be interpreted. It cannot be anything more than that.
[21] The Court then asks the question: Has Mr. Andrasik satisfied the Court on the balance of probabilities that he has qualified for the disability tax credit that he seeks? The Court's answer to that is no, he has not for two reasons. One, the Court is satisfied that in order for the Appellant to meet the requirement, he would have had to file under paragraph 118.3(1)(a.2) the certificate referred to. The only certificate before the Court is Exhibit R-1, which definitely is a negative certificate. It says the very opposite of what he seeks to prove. It is signed by Dr. D.A.C. Johnston and it says that he did not suffer from the disability or the impairment that he has to prove here. The certificate does not help him and as a matter of fact, is contrary to the position that he takes.
[22] There is no other certificate that he has that would meet the requirements of paragraph 118.3(a.2), so he fails in that aspect of it first of all. The Court cannot disregard a provision of the Act. The Act says that you have to have a certificate, if you do not have it, you are not entitled to the disability tax credit.
[23] On the other hand, it is possible that one might not be eligible for the disability even if one has a doctor's certificate saying that you have such a qualifying impairment. That depends upon the evidence. The certificate is certainly a prerequisite to the entitlement but it is not necessarily an absolute certainty that one is entitled to the disability credit even if one has the certificate.
[24] Secondly, when the Court looks at section 118.4, in spite of the very able argument put forward by this Appellant, which is very novel and the first time that the Court has heard it, the Court is satisfied that when section 118.4 talks about perceiving, thinking and remembering in subparagraph 118.4(c)(i), it is looking at them together. It is perceiving, thinking and remembering in the mental sense. It is not perceiving, thinking and remembering in respect of one of the physical senses, like touching, smelling and hearing.
[25] Some of the senses are referred to independently. Sight, hearing and speaking are referred to. Walking and elimination are referred to in different parts of this section. The only place it refers to perceiving is in the context of subparagraph 118.4(c)(i), and the Court believes that all three factors must be considered together. It does not believe that these factors refer to the sense of smell.
[26] If the Court is wrong in the first argument, that the Appellant has not met the prerequisite of the Act, the Court is satisfied that the loss of smell, or a problem with smell or a disability with respect to smell does not meet the requirements of the section when the Court looks at and considers the whole of section 118.4 and applies the evidence that it has before it, to that section.
[27] The appeal is dismissed and the Minister's assessment is confirmed.
Signed at Ottawa, Canada, this 7th day of September 2001.
"T.E. Margeson"
J.T.C.C.
COURT FILE NO.: 2000-4092(IT)I
STYLE OF CAUSE: Alwyn Gill and Her Majesty The Queen
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: February 27, 2001
REASONS FOR JUDGMENT BY: The Honourable T.E. Margeson
DATE OF JUDGMENT: March 6, 2001
DATE OF WRITTEN REASONS: September 7, 2001
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: John O'Callaghan
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-591(GST)I
BETWEEN:
ROBERT D. PARTRIDGE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeals heard on August 8, 2001, at Kingston, Ontario, by
the Honourable Judge Gerald J. Rip
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Rosemary Fincham
JUDGMENT
The appeal from the assessment made under Part IX of the Excise Tax Act for the period from January 1, 1997 to December 31, 1999, is allowed, without costs, and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment in order to delete the penalty assessed pursuant to section 275 of that statute.
The appellant is entitled to no further relief.
Signed at Ottawa, Canada, this 24th day of August 2001.
J.T.C.C.
2001-590(IT)I
BETWEEN:
ROBERT D. PARTRIDGE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeals heard on August 8, 2001, at Kingston, Ontario, by
the Honourable Judge Gerald J. Rip
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Rosemary Fincham
JUDGMENT
The appeals from the assessments made under the Income Tax Act for the 1997 and 1998 taxation years are dismissed.
Signed at Ottawa, Canada, this 24th day of August 2001.
J.T.C.C.