Date: 20020525
Docket: 2001-3428-IT-I
BETWEEN:
BLAIR DIRK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor Judgment
Sarchuk J.
[1] This is an appeal by Blair Dirk from a reassessment of his 1999 taxation year by virtue of which the Minister of National Revenue (the Minister) denied the Appellant's claim for a disability tax credit. The Minister's position is that the Appellant was not entitled to the credit under subsections 118.3(1) and 118.4(1) of the Income Tax Act (the Act) because he was not markedly restricted in his ability to perform a basic activity of daily living.
Background
[2] In 1985, when he was in his early 20s, the Appellant lost his right arm and has been wearing a prosthesis since that time. It was difficult for him to describe the problems encountered as a result of his disability because he has learned to adapt and as he observed: "sometimes it's kind of hard to picture the things I have trouble with, just because I am so used to doing them now". By way of example, he made reference to the various things that had to be done in the course of preparing a meal, the length of time it took and the problems he encountered in performing such basic tasks as opening jars and cans, gripping utensils and pots, cutting food and even something as simple as spreading butter on toast. He explained that a process such as opening a can requires him to grip an opener in his prosthesis. However, "the grip isn't strong enough so sometimes it doesn't ...".
Question: It slips?
Answer: Yeah, it slips and it makes - so you have to go around and around it.
Question: But you can get it off eventually?
Answer: Yeah, oh yeah".
This is but one example of a number of basic food preparation activities that take the Appellant a frustratingly long time to perform. It is understandable that he was unable to estimate how much longer it took him to chop an onion, to prepare a chicken stir fry or to peel a potato - all questions which seemed of great importance to counsel for the Minister. Nonetheless, his testimony made it quite apparent that on a comparative basis the preparation of a simple meal took him a disproportionate amount of time.
[3] On the subject of dressing, counsel again asked the Appellant to compare the length of time it takes him to dress with the time it took him to do so 20 years ago prior to the loss of his arm. Not surprisingly, he was unable to answer counsel's questions. On the other hand, his testimony clearly established the simple fact that dressing takes much more time. He described the difficult time he has dealing with all fasteners, buttons, zippers, hooks, tying shoelaces etc., most of which normally require the use of both hands. With respect to zippers, he stated: "zippers are a real pain because you have to sort of hold your ... and pull it up, and the prosthesis can't really grab the little zipper tab".[1] He tried different approaches but was unable to find one of use, in good measure because he is not able to articulate the prosthetic device close enough towards his body. He said: "I can't reach my face, like sort of with the hook or close into my body because of the type of prosthesis it is. So you know, doing things close into my body with the prosthesis doesn't really work. So you're basically then just one-handed". The Appellant's problems are compounded by one further factor which is that he had been right-handed but is now forced to use his left hand for many functions such as brushing his teeth. Even after 20 years he still finds it difficult because "it's not my dominant hand".
[4] The problems he encounters on a daily basis are exacerbated by the fact that he is not able to wear his prosthesis at all times. This, he said, occurs when sores develop where the:
Stump fits in your socket, and when that happens, then I have to take my arm off and then I have a real problem doing all of these things. You know, it just makes it probably, I don't know ten times harder than it does with the prosthesis. This is not a rare occurrence happening "more in the summertime when it's hot, because then you perspire, and then it seems to aggravate it more.
The Appellant also described having occasional bouts of "phantom pain" which are "like an electrical shock that you feel. And when that's occurring, you can't wear your prosthesis as well".
[5] For a number of years including the year under appeal, he was self-employed, operating a courier/delivery service. In this context, he made mention of the fact that to ensure that he is able to use his prosthesis at work, he avoids using it "a lot in order to be able to wear it all day, which makes the tasks that I have to do harder, because you avoid using your prosthesis". I took that to mean that to be certain that he is able to carry out the activities associated with his employment (which in addition to driving involves the lifting and moving of the parcels and other material being delivered) he, of necessity must limit the personal use of his prosthesis.
[6] Section 118.4 defines the nature of an impairment as follows:
118.4(1) For the purposes of subsection 6(16), sections 118.2 and 118.3 and this subsection,
(a) ...
(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) ...
In Johnston v. The Queen,[2] the following comments were made by Letourneau J.A. with respect to this subsection:
No definition has been given of what constitutes an inordinate amount of time in the performance of the basic activities of daily living. In my view, the expression "inordinate amount of time" refers to an excessive amount of time, that is to say one much longer than what is usually required by normal people. It requires a marked departure from normality.
The purpose of sections 118.3 and 118.4 is not to indemnify a person who suffers from a severe and prolonged mental or physical impairment, but to financially assist him or her in bearing the additional costs of living and working generated by the impairment. As Bowman, T.C.J. wrote in Radage v. R. at p. 2528:
The legislative intent appears to be to provide a 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.
The learned Judge went on to add, at p. 2529, and I agree with him:
If the object of Parliament, which is to give to disabled persons a measure of relief that will to some degree alleviate the increased difficulties under which their impairment forces them to live, is to be achieved the provisions must be given a humane and compassionate construction.
Indeed, although the scope of these provisions is limited in their application to severely impaired persons, they must not be interpreted so restrictively as to negate or compromise the legislative intent.
I am satisfied that the evidence adduced in these appeals meets the test set out in Johnston, supra. There is no question that the Appellant's ability to perform the essential task of dressing and the personal hygiene associated with it takes him an inordinate amount of time on any reasonable comparison with "normality". I reach the same conclusion with respect to the amount of time required by the Appellant to prepare his meals and feed himself. I also note that on those occasions when he is not able to wear his prosthesis because of the discomfort/pain, he would be severely restricted in his ability to attend to these otherwise fairly simple tasks.
[7] However, that is not the end of the matter since in order to qualify a properly completed Disability Tax Credit Certificate must be provided. In this case, the Appellant filed as an exhibit the Certificate partly completed by Dr. M. Gordon which had been submitted to the Minister.[3] With respect to paragraph 6, Feeding and Dressing, the certificate poses two questions: "Is you patient able to feed himself, using an aid if necessary"? and "Is you patient able to dress himself, using an aid if necessary"? to which Dr. Gordon responded "yes" and "see below". With respect to question 9: "Is the impairment severe enough to restrict the basic activity(ies) of daily living identified above all, or almost all of the time, even with therapy and the use of appropriate aids and medication"? Dr. Gordon responded:
does experience restriction, takes longer than average for grooming and dressing ? bad enough to qualify - need you to decide,
but failed to place any checkmarks in the appropriate box.
[8] According to the Appellant, the doctor:
"Told me that as he was filling this out he really didn't want to, because, he said, as he understands it, you have to be blind, in a wheelchair, or confined to bed in order to qualify. ... So he fills out this form for me and leaves, you know, a box blank for Revenue Canada to decide, which ends up being a negative against me, because he didn't fill it out, whether he knows I'm markedly restricted or not".
I appreciate that Dr. Gordon may have found it difficult to complete the necessary form. However, his refusal to answer the question in the form required precluded the Appellant from having his claim decided on its merits. No one will dispute that there are problems inherent in the language used by the legislators in these questions but, in my view, that is no excuse for the doctor's conduct. It was his responsibility to ask sufficient questions of the patient to determine whether or not the questions were to be answered yes or no. If at the conclusion of his examination he was unwilling to do so, he should have advised the patient to that effect and permitted him to seek another opinion.
[9] In two recent cases, The Attorney General of Canada v. Joan MacIsaac and The Attorney General of Canada v. Kenneth G. Morrison,[4] the Federal Court of Appeal had occasion to consider what is required in the context of the T2201 forms which are to be completed by the claimant's physicians and made the following comments:
... 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.
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.
[10] In view of the failure of Dr. Gordon to properly complete the Disability Tax Credit Certificate, I have no alternative but to disallow the Appellant's appeal.
Signed at Ottawa, Canada, this 24th day of May, 2002.
"A.A. Sarchuk"
J.T.C.C.
COURT FILE NO.: 2001-3428(IT)I
STYLE OF CAUSE: Blair Dirk and Her Majesty the Queen
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 8, 2002
REASONS FOR JUDGMENT BY: The Honourable Judge A.A. Sarchuk
DATE OF JUDGMENT: May 24, 2002
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: Nadine Taylor
COUNSEL OF RECORD:
For the Appellant:
Name: N/A
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-3428(IT)I
BETWEEN:
BLAIR DIRK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on March 8, 2002, at Vancouver, British Columbia, by
the Honourable Judge A.A. Sarchuk
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Nadine Taylor
JUDGMENT
The appeal from the assessment of tax made under the Income Tax Act for the 1999 taxation year is dismissed.
Signed at Ottawa, Canada, this 24th day of May, 2002.
|
"A.A. Sarchuk" |
J.T.C.C.