Date: 19980611
Docket: 97-3668-IT-I
BETWEEN:
GILLES TREMBLAY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Lamarre, J.T.C.C.
[1] The appellant is appealing under the informal procedure from an assessment made with respect to the 1995 taxation year.
[2] By means of that assessment the Minister of National Revenue ("the Minister") disallowed the non-refundable tax credit in the amount of $719.61 claimed by the appellant for a mental or physical impairment pursuant to ss. 118.3 and 118.4 of the Income Tax Act ("the Act").
[3] According to the appellant's testimony, he has ventricular tachycardia. This physical impairment was diagnosed in 1986 when he had to be hospitalized for a period of 50 days. The impairment causes dizziness, shortness of breath and exhaustion and cannot be controlled by medication. Although the appellant is equipped with a pacemaker, he can suffer a tachycardia attack at any time if he makes the slightest effort. When that happens he has to go to the hospital emergency room at once. The attacks occur about ten times a month in the winter and three or four times a month in the summer. When he has an attack he can no longer function normally. Dr. Teresa Kus, who filled out the appellant's medical certificate (see Exhibit A-1), described this condition as follows:
[TRANSLATION]
Idiopathic ventricular tachycardia indicated by rapid palpitations and dizziness, requiring the implantation of an anti-tachycardia pacemaker, which can be activated only in a hospital emergency room, to interrupt the rapid rate under medical supervision. These tachycardias are induced by moderate effort.
[4] In addition to visits due to attacks the appellant has to go to the Institut de Cardiologie twice a week and to the Hôpital Sacré-Coeur in Montréal once a month.
[5] The appellant, who is still regarded as an employee of the Montreal Port Corporation, has been on disability leave since the massive tachycardia attack he suffered in 1986.
[6] Since that time, all of his income has come from the insurance proceeds he receives because of his disability. Thus, he receives income from the Sun Life of Canada insurance company and from his insurance policy with the Montreal Port Corporation. He also receives a disability pension from the Régie des Rentes du Québec. In addition, also because of the disability, he is exempt from payment of a portion of the premiums payable on his life insurance policy with the London Life company.
[7] According to the medical certificate provided by Dr. Teresa Kus, the appellant has had idiopathic ventricular tachycardia since 1986 and his physical activity has been markedly restricted since that time due to the risk of triggering the tachycardia.
[8] According to the evidence submitted to the Court, and based on this Court's decisions in Dennis Radage v. The Queen, [1996] T.C.J. No. 730, and Avril Maureen Cotterell v. The Queen, [1986] T.C.J. No. 1781, I consider that the appellant meets the requirements set out in ss. 118.3 and 188.4 of the Act for entitlement to a credit for mental or physical impairment.
[9] I am in complete agreement with the comments of Judge Bowman of this Court in Radage, at paragraph 46 (pp. 52-57), and will reproduce certain passages therefrom:
. . . Each case depends on its own facts and to a degree upon the court's perception of the severity of the problem. If asked "Where do you draw the line?" I can only answer that I draw the line in any given case where my own common sense, based on the evidence and on a compassionate view of what I think Parliament was trying to achieve in section 118.3, tells me to draw it.
(5) I do not mean by the foregoing to imply by any means that the determination [should] be based on an arbitrary and subjective knee-jerk reaction. It must be based not only on the facts of the particular case but upon appropriate legal principles. I shall try to state briefly those principles upon which this decision is based:
(a) The legislative intent appears to be to provide a modest amount of tax 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 everyone 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.
(b) The court must, while recognizing the narrowness of the tests enumerated in sections 118.3 and 118.4, construe the provisions liberally, humanely and compassionately and not narrowly and technically. . . .
. . .
. . . 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 provision must be given a humane and compassionate construction. Section 12 of the Interpretation Act reads as follows:
Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
(c) If there is doubt on which side of the line a claimant falls, that doubt should be resolved in favour of the claimant.
. . .
(e) Finally there must be considered -- and this is the most difficult principle to formulate -- the criteria to be employed in forming the judgement whether the mental impairment is of such severity that the person is entitled to the credit . . . . It does not necessarily involve a state of complete automatism or anoesis, but it should be of such a severity that it affects and permeates his or her life to a degree that it renders that person incapable of performing such mental tasks as will enable him or her to function independently and with reasonable competence in everyday life.
[10] The Federal Court of Appeal cited certain of the preceding passages with approval in Johnston v. The Queen, [1998] F.C.J. No. 169, in particular as regards the statutory interpretation relating to the application of ss. 118.3 and 118.4 of the Act. Létourneau J.A. added the following at paragraphs 11, 12 and 13:
[para11] 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.
[para12] In Landry v. Her Majesty the Queen ([1995] 1 C.T.C. 2030), Judge Lamarre Proulx reviewed the historical development of the legislation. . . .
[para13] In 1986, the scope of the deduction was extended to many severely disabling conditions which did not result in confinement to a bed or wheelchair (see the Budget Papers of May 23, 1985, at p. 56):
A new definition, applicable for the 1986 and subsequent taxation years, to be administered by medical experts in the Department of National Health and Welfare, has been developed which will include all severely disabled Canadians. It will cover persons with disabling conditions such as blindness, severe cardio-respiratory failure, mental retardation or mental illness, profound bilateral deafness, and functional impairment of the neuro- or musculo- skeletal systems, who also deserve tax assistance. Those administering the general medical definition will assess eligibility by evaluating information provided by the disabled person (or by his or her representative). If the effect of the disability is to markedly restrict the person in activities of daily living and if the disability has lasted or can be expected to last for a continuous period of at least 12 months, the person will be issued a disability certificate and will be eligible for the tax deduction. The new definition is compatible with the goal of independent living for disabled persons set out in the Report of the Special Parliamentary Committee on the Disabled and Handicapped.
[11] In Radage the claimant had a mental impairment. In the instant case, the appellant has a physical impairment. The rules of interpretation remain the same.
[12] Like Judge Bowman, I consider that this is a case in which the intent of Parliament could be no better served than by awarding the appellant the tax credit for physical impairment he is claiming.
[13] Additionally, the appellant pointed out that obtaining a medical certificate each year is very costly. I feel this is a case of a permanent physical impairment which should not require the production of other medical certificates in future, as is permitted by a Revenue Canada policy set out in Interpretation Bulletin IT-519R of February 20, 1995.
[14] The appeal is therefore allowed with costs to the appellant, if any.
Signed at Ottawa, Canada, June 11, 1998.
"Lucie Lamarre"
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 17th day of November 1998.
Stephen Balogh, revisor