Date: 20021009
Docket: 2002-791-IT-I
BETWEEN:
KATHERINE LYNN WEAR,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for judgment
Miller J.
[1] Until 1995 Ms. Wear, the Appellant, was a gainfully employed member of society. In that year, she had the first of a series of five surgeries to remove tumours behind her eye. She is legally blind in one eye and barely able to function in many aspects of her life. She claimed a disability tax credit for 1999 and 2000, though provided no physician's certificate in support. Indeed, the Respondent presented four negative doctor's certificates. The issue in these appeals under the informal procedure is whether Ms. Wear qualifies for the disability tax credit in 1999 and 2000.
[2] Ms. Wear experienced her first blackout in 1995 while at work. She had to have surgery at that point to remove a meningioma in her head. She has required four subsequent operations: one in 1998, two in 1999 and one in 2000, due to recurrent growths. She has had over 30 bouts of radiation to eradicate the problem. She is legally blind in one eye and must wear sunglasses. She reads with a magnifying glass. She is heavily medicated, relying on the drug Dilatin to prevent grand mal seizures, though this has limited success, as she continues to experience seizures as recently as in June and July of this year. She remains constantly tired due to her medication. She describes every day as a challenge, suffering from daily headaches and pain. She requires time to think of what she needs to say, and she suffers memory loss. She also complains of some hearing loss. The radiation has led to difficulties with tooth decay. She must get cat scans every six months.
[3] Her friend, Tom Hartle, in his very emotional testimony described Ms. Wear as being incapable of functioning. According to Mr. Hartle, Ms. Wear takes hours to prepare a meal, three days to do her laundry, cannot remember what she had for breakfast or even what movie she saw the night before. He was present when she had four seizures in a row and was advised that a fifth seizure might have killed her. She is unable to work and barely able to look after herself, as she needs to spend a good deal of the day sleeping. He described her as being unable to focus for more than five minutes.
[4] Ms. Wear presented in Court as a fragile, confused individual whose life has been completely upended by the onslaught of recurring tumours.
[5] The Respondent presented four doctors' certificates:
(i) Certificate of Dr. R. Nigam (ophthalmologist) dated May 24, 2001,[1] in which she answered yes to all the following questions:
Can your patient see?
Can your patient walk?
Can your patient speak?
Can your patient perceive, think and remember?
Can your patient hear?
Can your patient feed or dress himself or herself?
Can your patient personally manage bowel and bladder functions?
Dr. Nigam went on in the Certificate to answer yes to the question: "Has your patient's blindness, marked restriction in a basic activity of daily living, or need for life-sustaining therapy lasted, or is it expected to last, for a continuous period of at least 12 months?".
(ii) Certificate of Dr. C. Bourque (neurologist) dated December 13, 2001[2] in which he likewise answered all seven questions, yes. He did not answer the question dealing with the duration of the impairment.
(iii) Certificate of Dr. Williams (neurosurgeon) dated November 18, 1999[3] in which he indicated the patient became markedly restricted in June 1999 and yet indicated "not" when asked to indicate how the patient was markedly restricted. He answered yes to all seven questions re: vision, walking, speaking, mental functions, hearing, feeding and dressing, and elimination. He answered no to the following two questions:
Has the impairment lasted, or is it expected to last, for a continuous period of at least 12 months?
Is the impairment severe enough to restrict the basic activity of daily living identified above all, or almost all, the time, even with therapy and the use of appropriate aids and medication?
(iv) Certificate of Dr. Nigam dated December 2, 1999[4] indicating the patient became markedly restricted in December 1999, that the marked restriction is permanent and it relates to vision. Then Dr. Nigam only answered one question of the seven, by answering yes to the question of whether her patient was able to see.
[6] Before my analysis, I wish to comment on the form of the Certificates. The incongruities within the Certificates do not instil a great deal of confidence that the form is appropriately structured to obtain a fair result. The form appears to confuse the nature of the impairment (disease, illness, physical impairment) from the effect of the impairment (can't see, can't walk, can't hear, etc.). The question regarding the duration of the impairment (to determine if it is prolonged) should go to the nature of the impairment, not the effect. It would make sense that such question is asked first in conjunction with the description of the impairment (example, schizophrenia, multiple sclerosis, etc.). This would more readily reflect the structure of section 118.3. Then the seven questions regarding the effect of the impairment can be asked to determine if the effect markedly restricts a basic activity of daily living. The form asks these questions in reverse and even then inappropriately asks the duration question in terms of the length of the marked restriction, rather than the length of the impairment. No wonder doctors may be confused and presumably why, in this case, a doctor says there is no marked restriction in one place and says the marked restriction has continued for more than 12 months in another place.
[7] The relevant provisions of the Income Tax Act are subsections 118.3(1) and 118.4(1) as follows:
118.3(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,
(iii) an impairment with respect to an individual's ability in feeding and 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,
(b) the individual has filed for a taxation year with the Minister the certificate described in paragraph (a.2), and
(c) ...
118.4(1) For the purposes of subsection 6(16), sections 118.2 and 118.3 and this subsection,
(a) an impairment is prolonged where it has lasted, or can reasonably be expected to last, for a continuous period of at least 12 months;
(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) a basic activity of daily living in relation to an individual means
(i) perceiving, thinking and remembering,
(ii) feeding and dressing oneself,
(iii) speaking so as to be understood, in a quiet setting, by another person familiar with the individual,
(iv) hearing so as to understand, in a quiet setting, another person familiar with the individual,
(v) eliminating (bowel or bladder functions), or
(vi) walking; and
(d) 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.
[8] Section 118.3 of the Act lists three requirements to claim a disability tax credit: (a) the individual must have a severe and prolonged mental or physical impairment; (b) the effects of the impairment are such that her ability to perform a basic activity of daily living is markedly restricted; and (c) she must provide a doctor's certificate certifying (a) and (b). As I have indicated in another recent disability tax credit case,[5] even if I find the taxpayer has a severe and prolonged impairment, the effects of which are such that she is blind or requires an inordinate amount of time to perform one of the basic activities of daily living, I must still find that a physician has certified to that effect. As Justice Stone indicated in the case of Buchanan v. The Queen,[6] a recent Federal Court of Appeal decision:
The Court must be faithful to the words in the Income Tax Act. The Act requires a positive certificate of a physician. That means that the function of the Tax Court judge is not to substitute his or her opinion for that of a physician, but to determine, based on medical evidence, whether a negative certificate should be treated as a positive certificate.
[9] While it is difficult not to have a great deal of sympathy for Ms. Wear, I am not prepared to displace four doctors' certificates with my own observation of Ms. Wear's appearance during her testimony. There must be something more concrete about the unreliability of a doctor's certificate than simply Ms. Wear's testimony that the doctors were wrong. I may be satisfied on the basis of her testimony and that of Mr. Hartle, that she does indeed have a prolonged impairment, the effect of which markedly restricts basic activities of daily living. This meets the first two conditions of the legislation. I do not, however, have a doctor's certificate that meets the third condition; indeed, I have four certificates that go quite contrary to Ms. Wear's explanation of the effect of her impairment. Some of the certificates seem to suggest that there is indeed a prolonged impairment but none of them indicate that the effect of the impairment represents a marked restriction on a basic activity of daily living.
[10] I am not a physician: I have not observed Ms. Wear over a period of time. To find that all four physicians' certificates, which were consistently answered in the negative, with respect to the marked restriction on a basic activity of daily living, can be interpreted as being positive certificates would require at the very least some evidence from one of the physicians as to why he or she completed the certificate as they did. If, as in the Buchanan case, there was proof of an underlying misunderstanding, or if there was shown to be some bias, or if there was an admission that the physician had indeed erred, then I might be in a position to interpret a negative certificate as positive. I have none of such evidence before me.
[11] Certainly there are some minor ambiguities in the certificates, arising more by the form of the certificate, as I have previously mentioned, but there is certainly no inconsistency in the answers to the seven questions dealing with the effect of the impairment. None of the certificates indicate that she is blind or cannot walk, speak, think, perceive, remember, hear, feed herself, dress herself or control or manage bowel and bladder function. Yet, she clearly has a serious condition; it is debilitating and it affects not just one but all of the above functions. As each of these functions is addressed individually in the legislation, and consequently in the requisite certificates, there is no opportunity for a physician to address a cumulative effect. The legislation simply does not contemplate that.
[12] I am satisfied Ms. Wear is disabled due to the recurring growth of tumours in her head. She has been unable though to obtain a medical certificate attesting that the effect of that disability is so grave that it qualified her for the disability tax credit. As I do not have any evidence to interpret the doctors' certificates as positive, rather than negative, I must dismiss Ms. Wear's appeals. I have raised this before and I raise it again: the form of certificate required to be signed by a physician can stand some improvement.
[13] The appeals are dismissed.
Signed at Ottawa, Canada, this 9th day of October, 2002.
|
"Campbell J. Miller" |
J.T.C.C.
COURT FILE NO.: 2002-791(IT)I
STYLE OF CAUSE: Katherine Lynn Wear and
Her Majesty the Queen
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: September 30, 2002
REASONS FOR JUDGMENT BY: The Honourable Judge Campbell J. Miller
DATE OF JUDGMENT: October 9, 2002
APPEARANCES:
For the Appellant: The Appellant herself
Counsel for the Respondent: Michael Van Dam
COUNSEL OF RECORD:
For the Appellant:
Name: N/A
Firm: N/A
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2002-791(IT)I
BETWEEN:
KATHERINE LYNN WEAR,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeals heard on September 30, 2002, at Winnipeg, Manitoba, by
the Honourable Judge Campbell J. Miller
Appearances
For the Appellant: The Appellant herself
Counsel for the Respondent: Michael Van Dam
JUDGMENT
The appeals from the assessment of tax made under the Income Tax Act for the 1999 and 2000 taxation years are dismissed.
Signed at Ottawa, Canada, this 9th day of October, 2002
|
"Campbell J. Miller" |
J.T.C.C.