Date: 20000608
Docket: 1999-4819-IT-I
BETWEEN:
SERGE NANTEL,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Lamarre Proulx, J.T.C.C.
[1] This is an appeal for the 1998 taxation year.
[2] The issue is whether the appellant was entitled, with respect to his daughters, to the non-refundable disability tax credit transferred from dependants other than a spouse.
[3] The facts on which the Minister of National Revenue ("the Minister") relied in disallowing the disability tax credit are set out as follows in subparagraphs 3(d), (h), (k) and (l):
[TRANSLATION]
(d) disability tax credit certificates (T2201) in respect of the appellant's two daughters, Chloé and Audrey-Maude, that were signed by Dr. Léopold Medou (hereinafter "the doctor") on July 10, 1998, were submitted for the 1998 and subsequent taxation years;
. . .
(h) on January 27, 1999, a letter was sent to the appellant informing him that:
(1) our medical advisers had finished reviewing his application;
(2) his daughters did not meet the eligibility criteria;
(3) according to the medical information examined, his daughters had a severe and prolonged impairment;
(4) his daughters were not, however, severely restricted in the basic activities of daily living;
. . .
(k) during the taxation year at issue, the appellant's daughters did not have a severe and prolonged mental or physical impairment the effects of which were such that their ability to perform a basic activity of daily living was markedly restricted;
(l) accordingly, the Minister determined that the appellant was not entitled, with respect to his daughters, to the non-refundable disability tax credit transferred from dependants other than a spouse for the 1998 taxation year.
[4] The appellant was not present at the hearing. He was represented by his spouse, the mother of their two daughters. She testified for the appellant. No one testified for the respondent.
[5] The T2201 certificates and the medical certificates referred to in subparagraphs 3(d) and (e) of the Reply were filed as Exhibit I-1 as regards Chloé Gareau Nantel and as Exhibit I-2 as regards Audrey-Maude Gareau Nantel.
[6] I quote two paragraphs from Chloé's medical certificate:
[TRANSLATION]
. . .
Child: Chloé Gareau Nantel
. . .
The above-mentioned child has allergy problems to an extent that is very rare, especially allergies to foods, anesthetics and other medication, as well as displaying symptoms as unexpected as hypoglycemia. She is even allergic to foods as basic as sugar. She cannot take the usual antibiotics and must always carry with her an EpiPen syringe (in case of allergy) and a syringe of glucagon (in case of hypoglycemia).
The range of the items to which she is allergic is such that she is very restricted in her movements and her relations with children of her own age. Thus, even at school, she must eat more often to prevent hypoglycemia. . . . She must have special meals, which are moreover rather difficult to put together since her mother, in seeking a balanced diet, must go to various places in the city to look for complementary nutrients that will not be dangerous for the child.
[7] The certificate concerning the other daughter is almost identical since both of them have the same food allergy to bovine protein. Each reacts just as strongly to sugar.
[8] Ms. Gareau explained that she breast-fed both her daughters for about five months after they were born. It was a good thing she did so, she said, because her daughters' lives would have been in grave danger. It was while breast-feeding them that she realized that, depending on what she herself ate, her daughters could find themselves covered in eczema or having breathing problems.
[9] Her daughters must avoid eating beef, veal, lamb, gelatin, whey (which may be found in margarine), sugar, honey and maple syrup. Ms. Gareau said that all products contain sugar nowadays, even bread, since yeast is sugar-based. Her daughters can eat fish and chicken. In the case of chicken, it depends on how the chicken was fed. Ms. Gareau explained that she has succeeded in finding a farmer or place that produces or sells chicken to which her children do not react. The same search was required for bread. For years, she had to make her own bread. After many years, she finally found a baker who was able to follow and stick to the proper recipe. With regard to fruit, it is necessary to be very careful because it all depends on the insecticide used. Her daughters react to the type of insecticide found on oranges, grapefruit and lemons. They cannot eat these fruit, even when peeled. There seems to be more leeway with vegetables, although there is always a risk that certain insecticides might be present.
[10] When they have an allergy attack, her daughters' throats swell and they have breathing problems: provision must be made for an adrenaline shot and 20 minutes must be allowed to get to the hospital. Moreover, since their food allergy is related to sugar, her daughters, like diabetics, must eat at certain times. Otherwise, there is a possibility of falling into a coma. This is an additional concern. Attacks are rarer now, since her daughters are careful.
[11] With regard to her own lifestyle, Ms. Gareau said that it is like going 150 years back in time. She must make bread, mustard, mayonnaise and jam (the jam is sweetened with rice syrup, which is expensive). Even organic products cannot be considered safe. Wheat must not contain chemicals. She must make most of her daughters' food herself. She must also look for foods to which her daughters are not allergic. All of this takes a great deal of time. In the summer, she has a vegetable garden so that she can produce healthy foods for her daughters herself. Even her daughters spend a great deal of time preparing their food.
[12] Ms. Gareau is trained as an accountant. She cannot practise that profession since she must devote most of her time to feeding and caring for her daughters. No one else could look after feeding them. If I were to throw in the towel or if I had the misfortune to get sick even, it's quite simple—my daughters would not live, period. She explained that she was bedridden at one point and that two people had to replace her on a full-time basis, namely her mother-in-law and her sister-in-law, both of whom are fairly well aware of the foods that her daughters can eat.
[13] Counsel for the respondent referred to two decisions by this Court concerning persons suffering from celiac disease, namely Judge Bonner's decision in Hagen v. The Queen, [1997] T.C.J. No. 827, and my decision in Fernand McMaster v. The Queen, [1998] T.C.J. No. 301. Counsel cited the following passage from McMaster:
[13] By referring to the Federal Court of Appeal's decision in Johnston v. The Queen, I can see that the objective test that must be used to decide such cases is whether the problem the individual has is such that he or she normally requires assistance from another person to perform the basic activity or requires an inordinate amount of time to perform the activity in comparison with someone who does not have the same disability.
[14] Based on this reasoning, it seems to me that if the foods that a person could eat were so rare that the person had to spend an inordinate amount of time looking for them, it would have to be concluded that looking for food was not separate from the activity of feeding oneself. That is not the case here, however. The suitable foods are not so rare that the appellant can hardly find anything to eat. To a very large degree, he can find his food in supermarkets like other people do, although he must be careful to check the ingredients in prepared foods. He has to go farther away to obtain some foods, such as pasta. Because of that, and because of the care he must take in purchasing prepared products, he argued that he is different from other people. But to what extent? To an extent that strikes me as minimal. It seems to me that many individuals are concerned about the ingredients in prepared products and travel a few kilometres to obtain products they like, whether because of their freshness, taste or price. While it is true that going to restaurants is difficult, that is the case for anyone with a food allergy. As regards the actual activity of feeding oneself, the appellant did not claim that he takes longer to eat than anyone else. I therefore conclude that the appellant does not have a physical impairment the effects of which are such that he requires an inordinate amount of time to perform the activity of feeding himself.
[14] Referring to that decision, counsel for the respondent explained that the respondent's position is that what counts with regard to the application of the tax credit is the ability of the person with the impairment to feed himself or herself. There is some doubt as to whether the time spent by other people on feeding themselves must be taken into account. There is also some doubt as to whether the time spent looking for and preparing food must be considered.
[15] I therefore consider it helpful to refer to Johnston v. The Queen, [1998] F.C.J. No. 169, at paragraphs 17-18 and 31-33, where the Federal Court of Appeal looked at the activity of feeding oneself and what it involves:
[17] The expression "markedly restricted" has been defined to refer to an individual's inability, at all or substantially all of the time, even with therapy and the use of appropriate device and medication, to perform a basic activity of daily living. An individual's ability is also deemed to be markedly restricted if he requires an inordinate amount of time to perform such activity.
[18] 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.
. . .
[31] Counsel for the Respondent argued before us, and it was accepted by the learned Judge, that the notion of "feeding" refers to a person's capacity to take food from a plate and bring it to his mouth. I strongly disagree. There is no doubt that a two-year-old child can take food from a plate and put it in his mouth, but there is also no doubt that nobody would assert that that child is able to feed himself. I agree with this statement of Bonner T.C.J. in M.R. Hodgin v. The Queen ([1995] E.T.C. 515):
I turn next to feeding oneself. That involves, in my view, something more than eating a meal prepared by another person. One cannot feed oneself unless one is capable of taking basic food stuffs in the form commonly available in a grocery store and cooking or otherwise preparing and setting out a meal. The test is feeding oneself, not simply eating a meal. The language of the legislation is clear in that respect. The requisite ability to feed oneself involves the ability to prepare a reasonable range of food and not just to prepare and set out snacks, junk foods or frozen dinners. Here the limitations on the movement of the Appellant's hands required the assistance of her husband in meal preparation to a degree that supports a conclusion that the Appellant was incapable of feeding herself. [Emphasis not in original.]
[32] The notion of feeding, in my view, also involves the ability to prepare a meal which conforms to a medically prescribed diet and medication which maintains one's state of health or prevents its deterioration.
[33] To limit the notion of feeding to the ability to eat a meal is to overlook the objective of the statute which, it bears repeating, is to financially assist those who, because of their disability, require assistance in fulfilling such a basic activity of daily living. To include the preparation of a reasonable meal in the notion of feeding is, on the contrary, fully consistent with such objective and the spirit of the disability credit.
[16] According to this decision, a person's ability is markedly restricted if the person requires an inordinate amount of time to perform a basic activity of living. The phrase "inordinate amount of time" refers to a much longer time than is normal. The notion of feeding oneself involves the ability to prepare a meal that conforms to the diet required by the person's condition. The activity of feeding oneself includes meal preparation.
[17] When it comes to the activity of feeding oneself, it is not just the act of putting food in one's mouth that must be considered. Looking for and preparing food must be as well. If these latter two activities have to be performed by someone other than the person with the impairment, that person's time must be taken into account in assessing whether it takes an inordinate amount of time to perform a basic activity of living. As regards celiac disease, I have not found that a person suffering therefrom requires very much more time for feeding himself or herself than is required by normal people. In the instant case, however, I feel that the time spent looking for and preparing food greatly exceeds the time usually spent by normal people on those activities.
[18] It is impossible not to consider the rare food allergies of the appellant's daughters to be a severe and prolonged impairment and not to find that much more time than usual is required to overcome that impairment and remain autonomous. The description given by Ms. Gareau shows that she currently requires an inordinate amount of time—in comparison with what is normal—to prepare the food required by her daughters, as do her daughters themselves. If these problems diminish in the future as a result of medical discoveries that are to be desired, so much the better. However, given what these individuals currently have to do when it comes to eating, there is no doubt that they require more time than is normal to look for and prepare their food.
[19] The appeal is allowed without costs.
Signed at Ottawa, Canada, this 8th day of June 2000.
"Louise Lamarre Proulx"
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]