[OFFICIAL ENGLISH TRANSLATION]
97-101(IT)I
BETWEEN:
ROBERT BERTRAND,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on October 8, 1997, at Ottawa, Canada, by
the Honourable Judge Louise Lamarre Proulx
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Natalie Goulard
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 28th day of October 1997.
"Louise Lamarre Proulx"
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Date: 19971028
Docket: 97-101(IT)I
BETWEEN:
ROBERT BERTRAND,
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 1994 taxation year.
[2] At issue is whether the appellant is eligible to claim an income tax credit for a severe and prolonged mental or physical impairment under sections 118.3 and 118.4 of the Income Tax Act ("the Act").
[3] In making the reassessment, the Minister of National Revenue ("the Minister") relied on the following assumptions of fact, set out in paragraphs 3 and 4 of the Reply to the Notice of Appeal:
3.(a) the appellant filed the Disability Tax Credit Certificate (form T2201A) dated November 21, 1995, and duly signed by Dr. Leboeuf ("the medical doctor");
3.(b) according to the medical doctor's diagnosis, the appellant did not have any restriction in performing the activities of daily living (such as walking, speaking, seeing, feeding and dressing himself);
3.(c) as a result, the Minister disallowed the non-refundable disability tax credit claimed by the appellant.
4. At the objection stage, during a telephone conversation on August 29, 1996, the medical doctor confirmed that the appellant was not restricted in performing the activities of daily living.
[4] The appellant was allowed the income tax credit for a severe and prolonged mental or physical impairment for the 1991 to 1993 taxation years, although the March 24, 1991, medical certificate noted moderate restriction in performing the activities of daily life. That certificate described the appellant's conditions as follows: chronic lumbar pain; left sciatica; chronic occipital headache.
[5] For the 1994 taxation year, the Minister requested another certificate. This certificate was provided by the medical doctor referred to in subparagraph 3(a) of the Reply. The certificate, adduced as Exhibit A-2, described the appellant's physical impairment as follows: operation for disk herniation in 1990; surgical difficulty; lumbar pain; periostitis. However, this medical certificate states that the patient is able to perform all the activities of daily living, including walking.
[6] The appellant and his spouse, Diane Charlebois Bertrand, testified.
[7] Mr. Bertrand told the Court that, following occupational accidents when he was working as a building mechanics technician for the Department of National Defence, he retired with a long-term disability pension. He had a back operation in 1990. He stated that he has back pain radiating in the left leg. He has difficulty walking; his left leg and foot tend to go numb, which sometimes affects his balance. According to the documents included as Exhibit A-1 and to the appellant's testimony, he also has chronic anxiety and hypertension. He has trouble sleeping. He has heart problems: apparently he had an infarct. He is being treated for these conditions and takes medication prescribed by the medical doctors.
[8] Concerning the certificate completed by Dr. Leboeuf (Exhibit A-2), the appellant stated that Dr. Leboeuf was not the medical doctor who was treating his back condition. When asked by the Court why he did not provide a certificate from the medical doctor who was treating his back condition, the appellant answered that he was now the one who managed his back condition and that he no longer wanted medical doctors to treat it. He is not taking physiotherapy. He has a medical doctor for his heart problems.
[9] The appellant's spouse is a secretary at the human resources department in Vanier. She confirmed her spouse's statements. Concerning bathing, she stated that she is the one who has to run the bath water and clean the bathtub afterward. Concerning showering, she stated further that she cannot be far away because the appellant often drops the soap bar, which has to be given back to him. However, the appellant is able to drive the car. When they travel together in the car, either the appellant or his spouse drives. On long trips, they must stop every hour and walk a few steps. When they shop for groceries together, the appellant must sit down after walking through a few aisles. The appellant's spouse confirmed that he has trouble sleeping. Often at night, she must help him to get up and lie down on a couch outside their bedroom and help him return to bed later during the night.
Analysis
[10] Subsection 118.3(1) of the Act provides:
118.3(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.
[11] We see in paragraph 118.3(1)(a.2) of the Act that the medical certificate is essential for the income tax credit to be allowed. The medical certificate filed by the appellant does not certify that he is unable to walk or takes an inordinate amount of time to do so. On this ground alone, the appellant's appeal should be dismissed.
[12] Parliament defined what is meant by severe and prolonged impairment in subsection 118.4(1) of the Act, as follows:
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.
[13] We see in subparagraph (d) that, although an individual may be disabled for work purposes, this does not necessarily mean that the individual will be considered as such for income tax credit purposes, since working is not considered a basic activity of daily living for the purposes of the income tax credit.
[14] The evidence has shown that the appellant has physical and mental problems but that they are not such that they restrict him in performing, with therapy and the appropriate medication, one or more basic activities of daily living.
[15] The appeal is therefore dismissed.
"Louise Lamarre Proulx"
J.T.C.C.
Signed at Ottawa, Canada, this 28th day of October 1997.