Date: 20020211
Docket: 2001-1963-IT-I
BETWEEN:
DOUG GRIFFETH,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Counsel for the Appellant: Tracey D. Beaudoin
Counsel for the Respondent: Mark Heseltine
____________________________________________________________________
Reasons for Judgment
(Delivered orally from the bench on
January 11, 2002, at Edmonton, Alberta)
McArthur J.
[1] The Appellant appeals from an assessment by the Minister of National Revenue for the 1999 taxation year, denying him a disability tax credit under section 118.3 of the Income Tax Act on the basis that the Appellant was not markedly restricted in his ability to perform a basic activity of daily living. The activity in issue in this appeal is "hearing" as defined in section 118.4 of the Act.
[2] In 1999, the Appellant was left permanently deaf in his left ear after surgery to remove a tumor. Dr. Richard Wiznura who signed the requisite disability tax credit certificate testified at length on behalf of the Appellant. There is no doubt that the Appellant has 100% hearing loss in his left ear and that loss cannot be assisted with a hearing aid or other device. His hearing in the right ear is normal and his overall physical condition appears excellent. Dr. Wiznura concluded that the impairment is severe enough to restrict his basic activity of daily living within the meaning of the Act. The doctor admitted in cross-examination that the Appellant's left ear deafness did not interfere with the Appellant's hearing in a doctor/patient conversation in the setting of a doctor's office. The doctor's conclusion that the hearing loss which impaired the Appellant's ability to work as a consultant was based on what the Appellant told him and not on the doctor's personal observations.
[3] In completing the disability tax credit certificate, Dr. Wiznura replied to the question: Is your patient able to hear so as to understand a spoken conversation, in a quiet setting, using an aid if necessary? by ticking off the word "No". During his testimony, the doctor stated he was referring to the deaf ear only. I do not consider the certificate conclusive.
[4] The Appellant also testified. He was represented by able counsel. His testimony was honest. Observing the Appellant throughout the examination in chief, cross-examination and re-direct, he appeared to hear normally. To accommodate him, he used the witness box to my right, directing his right ear to the examiners. He impressed me as a highly intelligent and able 45-year old. I believe he is a software consultant with SAP Canada Limited. He is married with children and appears to live an active normal life. He had no apparent difficulty in hearing and carrying on a normal conversation in the courtroom setting. The tone of voices was normal. During the 30 or 40 minutes in which he testified, I do not recall one instance when he did not immediately hear the question put to him.
[5] The hearing test in section 118.4 is "... hearing so as to understand, in a quiet setting, another person familiar with the individual...". I find that the Appellant passes this test. His hearing defect does not impede him from enjoying movies, television with his family, restaurants with friends, driving the car or competing in the work force, although he does suffer from some inconveniences and some difficulties.
[6] In his lengthy Notice of Appeal, the Appellant stated in part:
I contend that the qualifying parameters "so as to understand, in a quiet setting, another person familiar with the individual" used to define hearing as a basic activity of daily living as outlined in 118.4(1)(c)(iv) above are invalid and that it is the basic, unqualified, act of hearing that constitutes the basic activity of daily living.
The basis for the definition relies on a social activity, a conversation between individuals. As stated in 118.4(1)(d) above, social activity is not considered a basic activity of daily living. This presents a contradiction in that an activity that is not accepted as a basic activity of daily living is used to define a basic activity of daily living. I believe this contradiction invalidates the qualifying parameter "so as to understand, in a quiet setting, another person familiar with the individual" from being used in the definition of hearing as a basic activity of daily living. As a result, it is the basic, unqualified, act of hearing that constitutes the basic activity of daily living.
...
I contend that I take significantly more time to hear than would be taken by an average person not afflicted by the impairment.
It is a matter of fact that impaired hearing reduces a person's ability to recognize spoken words. Two significant impacts result from this restriction. First, I must expend a significant amount of time and energy focussing on the words spoken to me and, on a highly frequent basis, either repeat what I heard back to the individual or ask the individual to repeat themselves for clarification. Thus, it takes me significantly more time to hear than would be taken by an average person not afflicted by the impairment. Second, on frequent occasion, I misunderstand an individual because I "hear" different words than what were spoken to me. Later, if at all, when it comes to light that I did not correctly understand, time must be taken to correct the misunderstanding, thus taking me significantly more time to hear than would be taken by an average person not afflicted by the impairment.
Another factor that is involved with a hearing impairment such as mine is directional "blindness". Because I have no hearing on my left side, I can not distinguish sounds originating from that direction. Two significant impacts result from this restriction. First, I must constantly be aware of my surroundings and check if I am being spoken to. If I notice someone is trying to speak to me, I must ask the individual to repeat themselves, thus taking me significantly more time to hear than would be taken by an average person not afflicted by the impairment. Second, on frequent occasion, I do not notice people trying to speak to me. In this situation, the person must get my attention and then repeat himself or herself, thus taking me significantly more time to hear than would be taken by an average person not afflicted by the impairment.
According to Interpretation Bulletin IT-519R2 - Medical Expense and Disability, "disabling ailments and conditions must generally be considered on a case-by-case basis, since it is the effect of the impairment on the ability to perform the activities of daily living, which effect differs between individuals, rather than the ailment or condition itself, which determines whether an individual is eligible for the disability tax credit." I contend that there is no objective manner in which to assess the effect of my hearing impairment on my ability to perform this basic activity of daily living. This claim is substantiated by my Clinical Audiologist (see enclosed letter). Without an objective manner on which to base an assessment of the effect of my hearing impairment on my ability to perform this basic activity of daily living, I believe consideration as to my eligibility for the tax credit must be based solely on whether I meet the criteria as outlined under paragraph 118.4(1)(b) of the Income Tax Act.
Based on the arguments stated above, I am asking the Tax Court of Canada to reconsider my 1999 income tax assessment and allow my claim for the Disability Tax Credit.
[7] The Appellant stated that his greatest hearing difficulties were in work situations being in open concept cubicle offices where he spends most of his working time. The peripheral noise causes him difficulty in hearing and he has to position himself favouring his right side to carry on a conversation without asking one to repeat. If the sound or conversation is directed at his left side he has to change position or have it repeated. He can hear the television, but often only at a louder level than is comfortable for his family. He can hear his door bell, but not as easily as he could with two good ears. As a passenger in an automobile he has to turn his head to the speaker. Because of his impairment he sometimes, if not often, misses or misinterprets words.
[8] His salary has shown a steady rise over the years. In 1997, he earned $92,000, $108,000 in 1998, $115,000 in 1999, the year of his operation, and $125,000 in 2000. He incurs no expenses as a direct result of his impairment. This fact is probably the deciding factor in my decision to disallow the appeal.
[9] These are difficult cases and the line must be drawn somewhere. Both parties referred me to the decision of the Federal Court of Appeal in Johnston v. The Queen, 98 DTC 6169. Counsel for the Appellant referred to that case as the watershed or turning point in these cases and I agree with that comment. Letourneau J. stated at page 6171 and 6172:
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. The Queen at page 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.
...
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.
In the present instance, I do not find a marked departure from the normality that Judge Bowman refers to.
[10] Appellant's counsel also referred me to several other cases which I have reviewed. While I agree disability cases should be viewed with compassion, the evidence falls far short of establishing that the Appellant does not understand, in a quiet setting, another person familiar with the individual. He may not understand when spoken to on his left side, but that is not the test the legislature has set out.
[11] I find the present facts somewhat similar to those before Campbell J. of this Court, in the case of Ewen v. The Queen, 2000 T.C.J. No. 845, which was provided to me by counsel for the Respondent. In Ewen, the Appellant was legally blind in her right eye and her left eye had a mild impairment. Campbell J. stated:
... From the evidence, however, this did not appear to interfere with her ability to continue working.
...
The Appellant appears to be able to continue functioning in her basic activities of daily living while enduring eyestrain, headaches, etc., and the inconvenience of not being able to drive at night.
... she is not blind in the ordinary sense of the word. Certainly the quality of life of the Appellant may have been affected, but I am unable to do other than dismiss her appeal as she does not fall within the intent of the legislation.
I agree with Judge Campbell's reasoning and apply it to the present case.
[12] The appeal is dismissed.
Signed at Ottawa, Canada, this 11th day of February, 2002.
|
"C.H. McArthur" |
J.T.C.C.
COURT FILE NO.: 2001-1963(IT)I
STYLE OF CAUSE: Doug Griffeth and Her Majesty the Queen
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: January 9, 2002
REASONS FOR JUDGMENT BY: The Honourable Judge C.H. McArthur
DATE OF JUDGMENT: January 15, 2002
APPEARANCES:
Counsel for the Appellant: Tracey D. Beaudoin
Counsel for the Respondent: Mark Heseltine
COUNSEL OF RECORD:
For the Appellant:
Name: Tracey D. Beaudoin
Firm: Bennett Jones
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada