[OFFICIAL ENGLISH TRANSLATION]
Date: 20010815
Docket: 2000-2127(IT)I
BETWEEN:
BRUNO MALTAIS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Tardif, J.T.C.C.
[1] This is an appeal for the 1998
taxation year; it concerns a claim for a disability tax credit
under section 118.3 of the Income Tax Act ("the
Act"), which reads as follows:
Section118.3: 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, and
(iii) an impairment not referred to in
subparagraphs (i) or (ii), 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.
[2] The appellant was the only person
who testified in support of his appeal. He argued that he was
entitled to the credit because his spouse's ability to think,
perceive and remember was restricted and affected markedly, that
is, all or substantially all of the time. He said that in 1998,
his spouse required an inordinate amount of time to perform some
activities.
[3] The documentary evidence was filed
by consent. It showed that the appellant's spouse had a
severe illness in 1998.
[4] The appellant argued that his
spouse's illness was a severe one with numerous and difficult
consequences for all members of the family. That assessment of
the severity of the illness was, in a way, confirmed by the
frequency and duration of his spouse's many hospital
stays.
[5] Exhibit I-3, which describes
the number and duration of those hospital stays, should be
reproduced:
[TRANSLATION]
. . .
SUBJECT: Hospitalization
certificate
Name: Claire Fortin
Date of birth: 1947-09-11
. . .
This is to certify that Claire Fortin has been hospitalized 19
times at the Centre hospitalier Robert-Giffard under the
care of Dr. Jean-Charles Lavallée:
- From January 27, 1987, to March 13, 1987;
- From June 8, 1989, to June 28, 1989;
- From November 21, 1989, to January 23, 1990;
- From February 4, 1990, to March 1st, 1990;
- From April 24, 1990, to May 15, 1990;
- From November 16, 1990, to December 7, 1990;
- From February 6, 1991, to February 8, 1991;
- From March 14, 1991, to June 11, 1991;
- From August 13, 1991, to September 10, 1991;
- From September 13, 1991, to September 19, 1991;
- From October 3, 1992, to November 20, 1992;
- From December 17, 1992, to January 6, 1993;
- From March 4, 1993, to April 1st, 1993;
- From August 29, 1993, to September 15, 1993;
- From November 3, 1993, to November 24, 1993;
- From June 28, 1995, to August 3, 1995;
- From August 7, 1995, to December 28, 1995;
- From September 29, 1996, to June 12, 1997;
- From September 25, 2000, to December 7, 2000.
[6] Finally, I am also reproducing the
relevant parts of the questionnaire filled out by the attending
physician concerning the nature of the illness as well as
question 4 and the answer (Exhibit I-2):
[TRANSLATION]
. . .
1. How many
times did you meet with Ms. Fortin in 1996, 1997 and 1998?
A. 20 times
2. Explain in
concrete terms how Ms. Fortin's ability to perceive was
restricted in 1998.
A. Since 1987, she
has had a psychotic illness that has led to deficiencies in the
higher abilities and a decline in judgment, energy volition and
day-to-day organization.
3. Explain in
concrete terms how Ms. Fortin's ability to think was
restricted in 1998.
A. She is rather
distracted, inattentive, often slow and depressed, and this is
always a result of the development of the illness.
4. Explain in
concrete terms how Ms. Fortin's ability to remember (memory)
was restricted in 1998.
A. When she was
inattentive, distracted and preoccupied by her symptoms and
tears, she had trouble remembering.
5. What impact
did those restrictions have on the performance of her basic
activities of daily living in 1998?
A. All of the
deficiencies I have listed could not make her daily tasks and
activities any easier, far from it.
6. How did you
assess that impact on the performance of the basic activities of
daily living in 1998?
A. Not personally,
but people from the CLSC and family members were able to observe
it.
7. How did she
manage to live alone in 1998?
A. She lived with
her husband and children. She did not live alone or
independently.
8. What do you
mean when you claim that her condition stabilized in 1998?
A. The psychotic and
depressive symptoms had diminished or were in remission, but the
illness and vulnerability were still present, as were the
deficiencies.
. . .
[7] The documentary evidence therefore
shows objectively that the appellant's spouse had a severe
illness with consequences and effects that could prevent her from
thinking reasonably for long periods of time.
[8] Although the appellant admitted on
cross-examination that his spouse was capable of thinking,
perceiving and remembering, and although he stated that she had a
driver's licence and that her behaviour could be reasonably
acceptable, especially when she took all the medication she was
prescribed, my reading and understanding of the Act's
provisions are that a person's level of physical or mental
disability must be such that the person is never, or almost
never, capable of being self-sufficient. When the problem
is a physical or mechanical one, it is much easier to evaluate it
and assess the extent of its effects.
[9] The appellant said that his spouse
had good periods and periods that were not so good. He answered
my questions by saying that his spouse was able to shop, make
purchases and use a credit card during some periods. Is this
sufficient in itself to conclude that the disability was not
severe and prolonged enough? I do not think so.
[10] When the problem involves a mental
disability, the exercise is much more difficult and complicated,
since the outward signs are not always visible or apparent.
Moreover, a person who has such a disability may break down at
any time without there being any indications or warning
signs.
[11] In fact, the good periods described by
the close contacts of the appellant's spouse were basically
temporary and isolated since the illness or disability was always
present and was likely to produce effects at any time without
warning.
[12] This is a situation in which it is not
easy to decide, especially since there seems to be contradictory
case law.
[13] I must decide on the basis of evidence
that has a medical dimension. Not only do I not have all the
knowledge necessary to assess all the details and subtleties
thereof, but I must also assess evidence that is contradictory in
some respects.
[14] In the circumstances, I am relying on
the only objective piece of information in the evidence, namely,
the numerous and lengthy hospital stays by the appellant's
spouse. I think that so numerous and lengthy hospital stays
attest to the severity of her illness and above all to the fact
that her ability to perform certain activities of daily living
was markedly restricted.
[15] I am also taking account of the Federal
Court of Appeal's judgment in Friis v. Canada, [1998]
F.C.J. No. 823, in which Linden J.A. stated the following:
In my view, this section 28 application should be allowed in the
light of this Court's decision in Johnston v. Canada [1998]
F.C.J. No. 169 which was released following the Tax Court
Judge's decision in this case. In that case, Justice
Létourneau, quoting Judge Bowman in another case (Radage
v. R. [1996]
3 C.T.C. 2510), indicated that these "provisions must be
given a humane and compassionate construction" and should
not be interpreted "so restrictively as to negate or
comprise the legislative intent", which is to "provide
modest relief to persons who fall within a relatively restricted
category of markedly physically or mentally impaired persons. The
intent is neither to give the credit to every one who suffers
from a disability nor to erect a hurdle that is impossible for
virtually every disabled person to surmount. It obviously
recognizes that disabled persons need such tax relief and it is
intended to be of benefit to such persons."
[17] I therefore interpret the facts in a
humane and compassionate way, and I allow the appeal.
Signed at Ottawa, Canada, this 15th day of
August 2001.
J.T.C.C.
Translation certified true
on this 22nd day of January 2003.
Sophie Debbané, Revisor
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