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Docket: 2003-1106(IT)I |
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BETWEEN: |
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RÉAL MURRAY, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
[OFFICIAL ENGLISH TRANSLATION]
__________________________________________________________________
Appeal heard on November 4, 2004, at Roberval, Quebec.
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Before: The Honourable Justice Alain Tardif |
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Appearances: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Emmanuelle Faulkner |
____________________________________________________________________
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 2001 taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 6th day of December 2004.
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"Alain Tardif" |
Tardif J.
Translation certified true
on this 3rd day of March 2005
Jacques Deschênes, Translator
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Citation: 2004TCC752 |
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Date: 20041206 |
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Docket: 2003-1106(IT)I |
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BETWEEN: |
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RÉAL MURRAY, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Tardif J.
[1] This appeal pertains to the 2001 taxation year. The issue is whether the Minister of National Revenue properly disallowed a disability credit claimed by the appellant.
[2] The appellant represented himself, and expressed himself with great ease. He explained all the reasons that led him to appeal the assessment.
[3] The fact that the appellant suffered from a significant disability is not in doubt because the Régie des Rentes du Québec recognized his permanent total disability and he is receiving a disability pension.
[4] However, he has managed to function well even though he must take a significant amount of medication. He lives alone and independently in his apartment. He has no automobile, but he does have a driver's licence on which the only restriction is a requirement to wear corrective glasses.
[5] He explained that on some days, intense back pain, which requires him to take anti-inflammatories, made it difficult for him to begin activities. He is also on antidepressants and medication for high blood pressure.
[6] Based merely on seeing the appellant at the hearing, it is clear that he was not eligible for the credit in question at the time. However, the credit claimed is for the taxation year 2001, not the current year.
[7] In support of his claim for the credit, the appellant had to produce a medical assessment by his physician, but the answers that the physician provided to the questions confirm that the appellant was not entitled to the credit. I reproduce here the questions and the answers obtained:
[TRANSLATION]
. . .
Can your patient see? Yes.
Can your patient walk? Yes.
Can your patient speak? Yes.
Can your patient perceive, think and remember? Yes.
Can your patient hear? Yes.
Can your patient feed or dress himself or herself? Yes.
Can your patient personally manage bowel and bladder functions? Yes.
. . .
Does your patient meet these conditions for life-sustaining therapy? No.
[8] Dr. Jacqueline Lacasse also answered the questions addressed to her by the Canada Customs and Revenue Agency on August 9, 2002. The questions and answers were as follows:
[TRANSLATION]
. . .
Was your patient oriented to the three spheres (person, place, and time)? Yes.
Did your patient understand the concept of danger? Yes.
. . .
Was your patient able to retain instructions/information conveyed to him/her during appointments at your office? Yes.
Was your patient able to perform his/her personal hygiene (without assistance or supervision)? Yes.
. . .
Did your patient's mental impairment restrict his/her ability to live independently? No.
Could your patient make a simple purchase independently? Yes.
. . .
Did your patient require medication and/or therapy? No.
Was your patient's ability to think, perceive and remember improved with medication and therapy? Please explain: Does not require medication [illegible word]
Do you expect the severity of your patient's functional limitations will change? No.
. . .
[9] Sections 118.3 and 118.4 of the Income Tax Act read as follows:
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(1) |
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Where |
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(a) |
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an individual has a severe and prolonged mental or physical impairment, |
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(a.1) |
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the effects of the impairment are such that the individual's ability to perform a basic activity of daily living is markedly restricted or would be markedly restricted but for therapy that (i) is essential to sustain a vital function of the individual, (ii) is required to be administered at least three times each week for a total duration averaging not less than 14 hours a week, and (iii) cannot reasonably be expected to be of significant benefit to persons who are not so impaired, |
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(a.2) |
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in the case of (i) a sight impairment, a medical doctor or an optometrist, (i.1) a speech impairment, a medical doctor or a speech-language pathologist, (ii) a hearing impairment, a medical doctor or an audiologist, (iii) an impairment with respect to an individual's ability in feeding or 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 or would be markedly restricted but for therapy referred to in paragraph (a.1), |
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(b) |
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the individual has filed for a taxation year with the Minister the certificate described in paragraph 118.3(1)(a.2), and |
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(c) |
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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, there may be deducted in computing the individual's tax payable under this Part for the year the amount determined by the formula . . . |
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. . .
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118.4(1) For the purposes of subsection 6(16), sections 118.2 and 118.3 and this subsection, |
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(a) |
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an impairment is prolonged where it has lasted, or can reasonably be expected to last, for a continuous period of at least 12 months; |
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(b) |
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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; |
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(c) |
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a basic activity of daily living in relation to an individual means |
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(i) |
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perceiving, thinking and remembering, |
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(ii) |
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feeding oneself or dressing onself, |
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(iii) |
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speaking so as to be understood, in a quiet setting, by another person familiar with the individual, |
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(iv) |
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hearing so as to understand, in a quiet setting, another person familiar with the individual, |
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(v) |
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eliminating (bowel or bladder functions), or |
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(vi) |
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walking, |
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(d) |
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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; and . . . |
[10] In MacIsaacc. Canada, [1999] F.C.J. No. 1898 (QL), Sexton J.A. stated as follows:
5 While we sympathize with both Respondents and with the position taken by the Tax Court Judge we cannot agree with him on this question. Section 118.3(1)(a.2) of the Income Tax Act is not merely directory. It is mandatory. Simply put, there must be a certificate by the doctor that the individual suffers impairments in the language of these subsections. This Court held to the same effect in Partanen v. Canada, [1999] F.C.J. 751 and we feel bound by this decision.
6 It is not obvious that putting the questions as they are in this form results in a thorough consideration by the doctor of the questions confronting him. Putting checks in boxes is perhaps not the best way of eliciting a just result. Nevertheless the Act requires such certificates as a prerequisite to obtaining disability tax credits.
[11] Although it is not easy to answer the questions generally raised by the form, the answers have a decisive effect on eligibility for the disability tax credit. In the instant case, it has been made patently clear that the appellant did not meet the eligibility criteria for the credit. In fact, the answers provided by his primary care physician are consistent with what the Court observed at the hearing.
[12] For the period in issue, namely the 2001 taxation year, the preponderance of the evidence, both from the appellant's testimony and from the opinion of his primary care physician, discloses that the appellant was an independent and able to look after himself. He had to take several medications, but he was functional. He had, at all times, had the physical and mental abilities needed to carry out all the basic activities of daily living without requiring an inordinate amount of time, as contemplated in the provisions of the Income Tax Act:
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(i) |
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perceiving, thinking and remembering,
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(ii) |
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feeding and dressing oneself, |
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(iii) |
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speaking so as to be understood, in a quiet place, by another person familiar with the individual, |
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(iv) |
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hearing so as to understand, in a quiet setting, another person familiar with the individual, |
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(v) |
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eliminating (bowel or bladder functions), |
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(vi) |
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walking, |
[13] Consequently, the appeal must be dismissed.
Signed at Ottawa, Canada, this 6th day of December 2004.
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"Alain Tardif" |
Tardif J.
Translation certified true
on this 3rd day of March 2005
Jacques Deschênes, Translator
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CITATION: |
2004TCC752 |
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COURT FILE NO.: |
2003-1106(IT)I |
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STYLE OF CAUSE : |
Réal Murray v. Her Majesty the Queen |
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PLACE OF HEARING: |
Roberval, Quebec |
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DATE OF HEARING: |
November 4, 2004 |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice Alain Tardif |
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DATE OF JUDGMENT: |
December 6, 2004 |
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COMPARUTIONS : |
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For the Appellant |
The Appellant himself |
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Counsel for the Respondent |
Emmanuelle Faulkner |
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COUNSEL OF RECORD: |
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For the Appellant: |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |