[OFFICIAL ENGLISH TRANSLATION]
2000-4536(IT)I
BETWEEN:
JACQUES MAHEU,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on August 9, 2001, at Montréal, Quebec, by
the Honourable Judge Lucie Lamarre
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Stéphane Arcelin
JUDGMENT
The appeal from the assessment made under the Income Tax Act ("Act") for the 1999 taxation year is allowed and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the appellant is entitled to the credit for mental or physical impairment under sections 118.3 and 118.4 of the Act.
Signed at Ottawa, Canada, this 24th day of August 2001.
|
"Lucie Lamarre" |
J.T.C.C.
Translation certified true
on this 17th day of February 2003.
Erich Klein, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20010824
Docket: 2000-4536(IT)I
BETWEEN:
JACQUES MAHEU,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Lamarre, J T.C.C.
[1] This is an appeal filed under the informal procedure in which the appellant disputes an assessment by which the Minister of National Revenue ("Minister") denied the appellant the credit for mental or physical impairment for the 1999 taxation year under sections 118.3 and 118.4 of the Income Tax Act ("Act").
[2] In making the assessment, the Minister made the following assumptions of fact:
[TRANSLATION]
(a) a T2201 F (99) form entitled "Disability Tax Credit Certificate" was completed on January 11, 2000, by an authorized physician, Dr. Pierre Labelle, who diagnosed his patient as suffering from depression and chronic phobic neurosis; he believed, however, that the appellant did not take an excessive amount of time to perform certain basic activities of daily living such as seeing, walking, speaking, thinking, perceiving, remembering, hearing, feeding and dressing himself and eliminating (bowel functions);
(b) the Minister has determined that the appellant is not markedly restricted in his ability to perform his basic activities of daily living;
(c) during the 1999 taxation year, the appellant's ability to perform his activities of daily living was not clearly restricted by reason of a severe and prolonged mental or physical impairment.
[3] Entitlement to the credit for mental or physical impairment is subject to certain conditions under sections 118.3 and 118.4 of the Act, which read in part as follows:
Section 118.3: Credit for mental or physical impairment.
(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) in the case of
(i) a sight impairment, a medical doctor or an optometrist,
(ii) a hearing impairment, a medical doctor or an audiologist,
(iii) an impairment with respect to an individual's ability in feeding and dressing themself, or in walking, a medical doctor or an occupational therapist,
(iv) an impairment with respect to an individual's ability in perceiving, thinking and remembering, a medical doctor or a psychologist, and
(v) an impairment not referred to in any of subparagraphs (i) to (iv), a medical doctor
has certified in prescribed form that the impairment is 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.
Section 118.4: Nature of impairment.
(1) 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.
[4] Although section 118.4 provides that no other activity, including working, housekeeping or a social or recreational activity, shall be considered as a basic activity of daily living, the Federal Court of Appeal recognized in Johnston v. Canada,[1998] F.C.J. No. 169 (Q.L.) that the fact of performing such other activity may help to establish that an individual's ability to perform the basic activities of daily living is not markedly restricted. Létourneau J.A. writes as follows in paragraphs 21 and 22:
¶ 21 Section 118.4 clearly states for greater certainty that no other activity, including working, housekeeping or a social or recreational activity, shall be considered as a basic activity of daily living. This, on the one hand, means that a claimant is not entitled to the tax credit if his impairment prevents him from having a social life or enjoying recreational activities. However, this also means, on the other hand, that a claimant cannot be penalized and disallowed the credit if he has been able to organize for himself a social life or recreational activities.
¶ 22 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.
Looking at it from another angle, I am of the opinion that the fact that an individual is unable to perform another such activity may assist, though without being a decisive factor, in establishing that that individual's ability to perform the basic activities of daily living may be markedly restricted.
[5] In the instant case, two prescribed forms were completed by the appellant's attending physician, Dr. Pierre Labelle, one on April 2, 1998, and the other on January 11, 2000. On those two forms, Dr. Labelle acknowledged that the appellant's mental abilities had been restricted permanently since 1993 as he had diagnosed major depression and chronic phobic neurosis in the appellant.
[6] Dr. Labelle recognized in response to question 4 on the forms that the appellant was able to think, perceive and remember with the aid of medication or therapy. In response to question 9 on the forms, he acknowledged that the impairment was severe enough to restrict the appellant's basic activities of daily living all or substantially all of the time, even with the use of medication or therapy. It was therefore logical for the appellant to expect to be allowed the credit for mental impairment without having to adduce additional evidence.
[7] The respondent contends that the appellant does not meet the tests for eligibility for the credit set out in the Act. The respondent thus does not consider valid Dr. Labelle's answer to question 9 on the prescribed forms, which question, to a certain degree, restates the tests established by the Act. The respondent did not see fit, however, to have Dr. Labelle testify so that she could challenge his answer to question 9. The respondent merely filed, with the consent of the appellant (who was not represented by counsel), a questionnaire completed by Dr. Labelle at the respondent's request on September 14, 1998. In that questionnaire, Dr. Labelle answered that the appellant was unable to perceive, think and remember all or substantially all of the time, even with medication, therapy or assistance. However, he stated a little further on that there was no severe restriction, but added that the appellant suffers from chronic obsessive-compulsive neurosis.
[8] In view of the apparent contradiction in the answers given on the questionnaire, I see no point, given Dr. Labelle's absence from the hearing, in attaching any great importance to that questionnaire. I find that the appellant was unable to assess the scope of that document, which was completed at the Minister's request without advance notice to the appellant.
[9] I also heard the testimony of the appellant and his wife, Micheline Pinsonneault. The appellant explained that he had suffered a severe depression and that his nervous system had been affected to the point where he could no longer function normally as he had previously done. He had become very slow in performing any task at work and had had to leave his employment on his physician's recommendation after losing control of himself in a violent outburst. Since then, he has been unfit to work, has had to sleep several hours during the day, and has been unable to handle his personal affairs or to read. The Régie des rentes du Québec and various insurance companies have recognized him as being disabled. He is now living on his disability benefits.
[10] His wife explained that, although medication was prescribed to combat severe depression, it has had as a side effect a considerable reduction of the appellant's ability to perform his daily activities. Thus, driving the car has become dangerous, in that he confuses red lights and stop signs. He also becomes confused when he is required to travel from one place to another. He no longer has either the concentration needed to attend to his personal affairs or the ability to do so. In short, he can no longer function normally without his wife.
[11] Counsel for the respondent referred inter alia to the decision rendered in Radage v. Canada, [1996] T.C.J. No. 730 (Q.L.), in which Judge Bowman of this Court conducted a detailed analysis of the basic activities of daily living described in the Act as including "perceiving, thinking and remembering".
[12] In that analysis, Judge Bowman established that the Court must interpret sections 118.3 and 118.4 of the Act in a liberal, humane and compassionate, not narrow and technical, manner. That comment was cited with approval by the Federal Court of Appeal in Johnston, supra.
[13] With respect to mental impairment, Judge Bowman writes as follows in paragraph 45 of the decision in Radage:
Finally, there must be considered - and this is the most difficult principle to formulate - the criteria to be employed in forming the judgement whether the mental impairment is of such severity that the person is entitled to the credit, i.e. that that person's ability to perceive, think and remember is markedly restricted within the meaning of the Act. It does not necessarily involve a state of complete automatism or anoesis, but it should be of such a severity that it affects and permeates his or her life to a degree that it renders that person incapable of performing such mental tasks as will enable him or her to function independently and with reasonable competence in everyday life.
[14] In Radage, the taxpayer claimed a credit for his son, who was described as having a borderline range of intelligence. This child was slower than and different from others. At the age of 24, he could not work without supervision, was unable to do simple mental calculations, had limited spatial perception, was incapable of managing his own affairs, could not make friends and had trouble understanding certain written documents. He was ill-suited to the job market and to society in general. Although he could feed and dress himself alone, his behaviour as a whole in fact created serious barriers to an independent life, to employment and to his functioning in society. Indeed, he could not function without the aid of members of his family.
[15] Having considered all this, Judge Bowman came to the conclusion that the intellectual limits of the taxpayer's son were severe enough to render him incapable of performing such mental tasks as would enable him to function independently and with reasonable competence in everyday life.
[16] I find that, although the appellant's case is not identical to that in Radage, there are enough similarities to allow the same conclusion to be drawn. It is clear from the medical certificates filed in evidence that the appellant suffers from a severe and prolonged mental impairment. Those certificates establish that the impairment is severe enough to restrict the appellant's ability to perform his basic activities of daily living all or substantially all of the time. I therefore find, in light of the analysis in Radage, that the appellant has shown that his ability to perform the basic activities of daily living in the areas of perceiving, thinking and remembering is markedly restricted.
[17] For these reasons, I would allow the appeal on the basis that the appellant is entitled to the credit for mental or physical impairment under sections 118.3 and 118.4 of the Act.
Signed at Ottawa, Canada, this 24th day of August 2001.
|
"Lucie Lamarre" |
J.T.C.C.
Translation certified true
on this 17th day of February 2003.
Erich Klein, Revisor