Date: 20020813
Docket: 2001-2693-IT-I
BETWEEN:
JOHN E. CONNOLLY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
For the Appellant: The Appellant himself
Counsel for the Respondent: Ms. Christa MacKinnon
____________________________________________________________________
Reasons for Judgment
(delivered orally from the Bench
on April 18, 2002 at Halifax, Nova Scotia)
GARON, C.J.T.C.C.
[1] These are appeals from income tax assessments for the 1998, 1999 and 2000 taxation years. By the reassessments for the three years in question, the Appellant was not granted the disability tax credit, either because this credit was denied to him or because he did not claim it in his return of income.
[2] The Appellant was the sole witness at the hearing of his appeals.
[3] The Appellant worked for a number of years for Canada Post Corporation. He was a letter carrier. As a result of his work as a letter carrier, the Appellant testified that he suffered a back injury in 1992 from which he has not yet recovered. His condition is chronic.
[4] With respect to the back injury, I should mention that the Appellant has been involved for many years in a lawsuit with his former employer. This litigation started in 1995. He had initially retained the services of a lawyer in connection with this litigation, but later on had to continue the legal proceedings without the assistance of counsel because he could not afford the resulting expenditure.
[5] The Appellant suffered a major depression in 1998. Because of this, he stated that he did not file a notice of objection in respect of the assessment of the Minister of National Revenue for that year. He recognized however, that at the time he should have filed a notice of objection in respect of the 1998 assessment, probably some time in the fall of 1999, his condition had improved to some extent. Also, he did not apply for an extension of time for filing a notice of objection.
[6] In the course of his testimony, the Appellant filed two letters with the Court. The first letter dated May 21, 1998, addressed to Dr. Lyons from Joy Moore of the Portland Physiotherapy Clinic of Dartmouth, Nova Scotia. The second letter dated September 2, 1999, addressed "To whom it may concern," is from Dr. Nigel P. Allison, a psychiatrist.
[7] In the letter from the physiotherapist, it is stated that the Appellant was "referred to physiotherapy after his symptoms had plateaued with rest and limited activity". The physiotherapist mentioned, among other things, that the Appellant had made progress throughout his program but added in the concluding paragraph of his discharge report the following:
Unfortunately for John his coverage was terminated prior to the completion of his program and arrangements could not be made for him to ease back to work. It was recommended that John continue a regular exercise program for maintenance of his back pain.
[8] The second letter from the psychiatrist, contains certain observations which are worth noting. The first paragraph of this letter reads thus:
Mr. John Connolly has been an office patient of mine since April 1999, when he was referred by his family physician for ongoing evaluation of depressive illness. His depression has improved to a significant extent with medication but it was clear that he had suffered from a Major Depression in the recent past.
[9] The last paragraph of the psychiatrist's letter is hereinafter reproduced:
While he does not have any consistent clear-cut features of an ongoing depression, there is a strong risk of relapse with this illness, particularly in view of the other environmental stresses. At the same time he is clearly in a great deal of discomfort with his back injury and is cognitively preoccupied with ongoing issues with his employer. In my opinion, together these issues render him currently disabled for any form of work and I have strongly recommended that he never return to his previous employer.
[10] A letter dated June 23, 2000 from Canada Post Corporation was also put in evidence. It shows that the Appellant was released for incapacity by Canada Post Corporation, effective August 18, 2000.
[11] With regard to his condition during the years in issue, the Appellant stated he could not walk for more than 10 or 15 minutes without stopping for a rest. He also said that he experienced a fair amount of discomfort in dressing himself. He also deposed that during the years in issue he had a total loss of focus. In all his thoughts, he was preoccupied with the litigation with Canada Post Corporation and with the manner he was treated by the latter corporation between 1993 and 1998. He recognized, however, that during the relevant period he was able to drive a car. He could "take money out of the bank using an interac card. He could prepare a snack."
[12] The general question is whether the Appellant is entitled to the tax credit for mental or physical impairment.
[13] The requirements for the entitlement to this credit are set out in section 118.3 of the Income Tax Act. A taxpayer is entitled to this credit if he has a severe and prolonged mental or physical impairment to the extent that his ability to perform the basic activities of daily living is markedly restricted. The expression "basic activities of daily living" is defined in section 118.4 of the Income Tax Act. Section 118.3 of the Income Tax Act also imposes the requirement that the impairment is certified by a medical doctor or other professional, according to the nature of the impairment, to be a severe and prolonged mental or physical impairment, the effects of which are such that the individual's ability to perform the basic activities of daily living is markedly restricted. The certificate in question must be filed for each taxation year in respect of which the tax credit is claimed. Unfortunately, in the present case, the Appellant has not filed such certificate for any of the three years in issue. In this connection, it has been held in the case of Partanen v. R., [1998] 2 C.T.C. 2941, that the filing of a certificate is a prerequisite for obtaining the tax credit established by section 118.3 of the Income Tax Act. The decision of my colleague, Judge Lamarre Proulx, has been confirmed by the Federal Court of Appeal ([1999] 3 C.T.C. 79).
[14] In any event, even if the certificates had been filed for the three taxation years in issue, I doubt that the Appellant could have established that his ability to perceive, think and remember and to walk was restricted to the extent required by the Income Tax Act and the case law. In saying this, I am not suggesting that the Appellant's condition was not a serious one. However, it must be emphasized that the threshold for the entitlement to this tax credit established by the Act is high.
[15] In addition, in the case of the appeal from the assessment for the 1998 taxation year, the Appellant has not filed a notice of objection. This is an essential requirement that must be met prior to instituting an appeal, as provided by section 169 of the Income Tax Act.
[16] For these reasons, I am constrained to dismiss the appeals from the assessments for the 1998, 1999 and 2000 taxation years.
Signed at Ottawa, Canada, this 13th day of August 2002.
|
"Alban Garon" |
C.J.T.C.C.
COURT FILE NO.: 2001-2693(IT)I
STYLE OF CAUSE: John E. Connolly and
Her Majesty The Queen
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: April 16, 2002
REASONS FOR JUDGMENT BY: The Honourable Alban Garon
Chief Judge
DATE OF JUDGMENT: April 23, 2002
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: Ms. Christa MacKinnon
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada