Date: 20010907
Docket: 2000-3406-IT-I
BETWEEN:
GEORGES NOAILLE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor Judgment
Bowman, A.C.J.
[1] This is an appeal from an assessment for the year 1998.
[2] The appellant's spouse has a severe and permanent disease, celiac disease, which results in extreme intolerance to all foods containing gluten. She is doubly afflicted because she also suffers from lactose intolerance. This disease has an impact on all aspects of her life. She must avoid consuming all foods and beverages containing gluten — in general, grains — or lactose — in general, foods and beverages containing substances derived from milk.
[3] She cannot travel or eat at restaurants. Purchasing and preparing food are difficult tasks which take an excessive amount of time. If she accidentally eats food containing gluten or lactose, or if she uses a dish or utensil, such as a knife or spoon, that has touched those substances, she experiences severe abdominal pain, nausea and diarrhea and could suffer serious intestinal damage.
[4] The disease is accurately described in a publication produced by the Canadian Celiac Association.
Celiac Disease is a medical condition in which the absorptive surface of the small intestine is damaged by a substance called gluten. This results in an inability of the body to absorb nutrients: protein, fat, carbohydrates, vitamins and minerals, which are necessary for good health.
Although statistics are not readily available, it is estimated that 1:200 persons in Canada are affected by Celiac Disease.
A wide range of symptoms may be present. Symptoms may appear together or singularly in children or adults. In general, the symptoms of untreated Celiac Disease indicate the presence of malabsorption due to the damaged small intestine.
Gluten is a protein found in wheat, rye, tritical, barley, and oats. In the case of wheat, gliadin has been isolated as the toxic fraction. It is the gluten in the flour that helps bread and other baked goods bind and prevents crumbling. This feature has made gluten widely used in the production of many processed and packaged foods.
. . .
What is Celiac?
COMMON SYMPTOMS
Anemia - Chronic Diarrhea - Weight Loss - Fatigue - Cramps and Bloating - Irritability
Although some or all of these symptoms occur in Celiac Disease, some can also occur in many other diseases more common than Celiac Disease.
In other cases, sufferers from gluten-intolerance develop an intense burning and itching rash called Dermatitis Herpetiformis. The intestinal symptoms of Celiac Disease may or may not appear in Dermatitis Herpetiformis
DIAGNOSIS
. . .
A definitive diagnosis can only be made by a small bowel biopsy . . . .
TREATMENT
Celiac Disease as yet has no known cure, but can usually be effectively treated and controlled. The treatment of Celiac Disease is strict adherence to a GLUTEN FREE DIET FOR LIFE. This requires knowledgeable dietetic counseling . . . . Celiacs must be alert to hidden sources of gluten such as HVP/HPP (hydrolyzed vegetable/plant protein); malt; . . . and certain drug products.
Today's processed and packaged foods have many hidden sources of gluten . . . . Particular care should be taken in the selection of soups, luncheon meats and sausages.
The person with Celiac Disease MUST READ THE LIST OF INGREDIENTS ON ALL LABELS, EVERY TIME.
There is a great variation in sensitivity to gluten among those with Celiac Disease, and although one may have no obvious symptoms, damage to the intestinal lining may still occur.
WHO ARE CELIACS?
Celiac Disease can surface at any age. Until recently, it was recognized mainly in children. The rate at which adults are being diagnosed is increasing, particularly those in the 40-50 year old range, due to great awareness and improved diagnosis skills. . . .
IS IT HEREDITARY?
While it is still unknown whether Celiac Disease is passed on by a dominant or recessive gene it has been established that genetic factors are involved. About 10% of the relatives of persons with Celiac Disease may also have the condition.
IS THERE A CURE?
Not yet. However, research efforts continue. But Celiac Disease can be controlled. Strict adherence to the GLUTEN-FREE DIET is essential for good health.
[5] The expert report of Nicole Doucet, dietitian, contains the following observations:
[TRANSLATION]
Celiac Disease and Diet
What is Celiac Disease?
Celiac disease, also called enteropathy or gluten hypersensitivity, is a medical condition in which the absorptive surface of the small intestine is damaged by a substance called "gluten". Gliadin is the protein fraction of gluten that destroys the tissues of the small intestine, causing a cytotoxic reaction in the mucus membrane and results in atrophy of the intestinal villi and micro-villi. This results in an inability of the body to absorb nutrients such as protein, fat, carbohydrates, vitamins and minerals, which are necessary for good health. Eliminating foods containing gluten (wheat, rye, barley, oats and tritical) enables the intestinal mucosa to return to normal and restores absorption of nutrients in the small intestine.
The risk of developing celiac disease appears to be the result of a complex combination of genetic predispositions and environmental factors (for example, foods containing gluten). The disease is present around the world and recent epidemiological studies suggest it is very likely under-diagnosed. The frequency of typical and atypical cases is just beginning to be known. The frequency of celiac disease in North America was originally considered quite low, although it is now compared to the frequency of the disease in Europe.
Symptoms of Celiac Disease
The clinical signs of celiac disease vary with the age of the patient and the duration and severity of the disease. In some persons, symptoms are severe, even debilitating, whereas, in others, they may be few and not very severe. The nature of the symptoms appears to reflect the presence and degree of malabsorption through the damaged intestinal mucosa.
The classic symptoms of celiac disease generally appear in infancy, the first observed symptoms being a stunting of growth when cereals are introduced into the diet. The most common symptoms an anorexia, irritability, a pale complexion and a weakened appearance together with abdominal bloating, diminished muscle tone and a gradual decline in weight gain. In addition, soft, foul-smelling and clay-coloured stools are commonly observed in this age group. Severe abdominal cramps may signal the onset of celiac disease in pre-school-age children, while anemia and slow growth may be observed in older children.
The onset of celiac disease may occur at any time in life. Symptoms are usually less severe in adults, in whom the precursors of the disease are slight iron deficiency, fatigue and minor weight loss. Other, more frequently observed, symptoms are alternating diarrhea and constipation, abdominal pain, abdominal bloating and flatulence.
In Canada, the most common symptoms, as reported in the national survey of the Canadian Celiac Association are diarrhea, abundant and floating stools, weight loss, stunted growth in children, abdominal bloating, abdominal pain, irritability or apathy and nausea or vomiting. Other relatively common symptoms include constipation, easy bruising, swelling or edema, and anemia. These symptoms are alleviated by appropriate dietary changes.
[6] According to the evidence of the appellant and his spouse, Mrs. Noaille has all the aforementioned symptoms to an extreme degree.
[7] Mrs. Noaille's dual affliction is clearly so severe that it makes all aspects of her life virtually intolerable. I am satisfied that her celiac disease and lactose intolerance are a severe and prolonged physical impairment and that the effects of her impairment are such that Mrs. Noaille's ability to perform an activity of daily living is markedly restricted. Section 118.4 of the Income Tax Act reads as follows:
(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] The activities relevant to Mrs. Noaille's case are:
(1) feeding oneself; and
(2) eliminating (bowel or bladder functions).
[9] I agree with the physician who signed the disability tax credit certificate. The relevant parts of his certificate are as follows:
[TRANSLATION]
. . .
Date your patient became markedly restricted:
Year Month
1985 02
. . .
Indicate medical diagnosis relevant to the impairment and describe the restriction and aids used. Failure to complete this area might result in the claim being disallowed or the assessment of the income tax return being delayed.
Patient can only eat gluten-free products because of an intolerance causing: diarrhea, malabsorption and risk of neoplasia and thus severe physical impairment.
. . .
6. Feeding and dressing
Yes No
(a) Is your patient able to feed
himself or herself, using an
aid if necessary? ___ X
. . .
7. Elimination
Is your patient able to control and personally
manage bowel and bladder functions, using
an aid if necessary?
(For example, has uncomplicated ostomy or
uses a catheter.) ___ X
. . .
9. 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? X ___
[10] According to the Federal Court of Appeal in A.G. of Canada v. MacIsaac et al., 2000 DTC 6020, the box the physician checks is of absolute importance and his finding may not be questioned by the Court, even if the conclusion indicated by the physician is absurd and contrary to the evidence adduced in court. The strange result to which the Federal Court of Appeal's decision leads may be seen from what happened when these two cases were reheard by this Court (Morrison v. R., [2000] 3 C.T.C. 2291). In one of those cases, the physician admitted that he had intended to check "yes". Unfortunately, he gave the form to his secretary, who mistakenly checked "no". In the other case, the physician had filed three certificates. He had checked "yes" on the first, "no" on the second and between the two boxes on the third. The Court of Appeal nevertheless held that the Court must not question the infallibility of physicians. I therefore allowed the appellant the credit since one of the boxes the physician had checked was the right one.
[11] In the instant case, I am far from disputing the physician's conclusion. I accept it, assuming that he managed to express it and knowing that I am not free to question it, and I support it fully. The physician checked the right box, and, according to the Federal Court of Appeal, that settles the matter.
[12] I acknowledge that there appears to be a difference of opinion within this Court concerning celiac disease. In Hagen v. Canada, 1997 CarswellNat 1305, [1997] T.C.J. No. 827, and McMaster v. Canada, [1998] T.C.J. No. 301, [1999] 1 C.T.C. 2658, two judges of this Court held that persons with celiac disease were not entitled to the tax credit for severe and prolonged physical impairment.
[13] In Hamilton v. Canada, [2001] T.C.J. No. 300, and Leduc v. Canada, [1999] T.C.J. No. 765, two other judges of this Court found that persons with the disease are entitled to the credit.
[14] The decision in Hamilton was appealed to the Federal Court of Appeal. The Crown discontinued an appeal to the Federal Court of Appeal from this Court's decision in Leduc.
[15] It would be pointless to try to reconcile these two lines of decisions. Each case turns on its own facts and, particularly in the case of celiac disease, differences in the severity of the disease are extreme and striking. Mrs. Noaille's case is clear and extreme.
[16] I agree with and adopt Judge Lamarre's reasoning in Leduc and that of Judge Campbell in Hamilton. In their decisions, both judges followed the reasoning of the Federal Court of Appeal in a previous decision in Johnston v. The Queen, 98 DTC 6169.
[17] Celiac disease is a severe and debilitating impairment and it is high time that the courts and tax authorities recognized it as such.
[18] There is another point at issue in this case. The appellant is seeking a credit for the cost of special gluten-free bread. I regret that I cannot help Mr. Noaille on this point. The medical expenses that enter into the calculation of the tax credits under section 118.2 are (according to paragraph 118.2(2)(n)) the following:
(n) for drugs, medicaments or other preparations or substances (other than those described in paragraph (k)) manufactured, sold or represented for use in the diagnosis, treatment or prevention of a disease, disorder, abnormal physical state, or the symptoms thereof or in restoring, correcting or modifying an organic function, purchased for use by the patient as prescribed by a medical practitioner or dentist and as recorded by a pharmacist . . . .
[19] Gluten-free bread meets all the conditions of this paragraph except the last one — it is not recorded by a pharmacist. It can be obtained in natural food stores.
[20] The appeal is allowed and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the appellant is entitled to a tax credit under sections 118.3, 118.4 and 118.8 because his spouse had a severe and prolonged physical impairment.
Signed at Ottawa, Canada, this 7th day of September 2001.
"D. G. H. Bowman"
A.C.J.
Translation certified true on this 30th day of October 2001.
[OFFICIAL ENGLISH TRANSLATION]
Stephen Balogh, Revisor
[OFFICIAL ENGLISH TRANSLATION]
2000-3406(IT)I
BETWEEN:
GEORGES NOAILLE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on June 21, 2001, at Montréal, Quebec, by
the Honourable Associate Chief Judge D. G. H. Bowman
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Michel Lamarre
JUDGMENT
It is ordered that the appeal from the assessment made under the Income Tax Act for the 1998 taxation year be allowed and that the assessment be referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the appellant is entitled to a tax credit under sections 118.3, 118.4 and 118.8 because his spouse had a severe and prolonged physical impairment.
Signed at Ottawa, Canada, this 7th day of September 2001.
|
"D. G. H. Bowman" |
A.C.J.
Translation certified true
on this 30th day of October 2001.
Stephen Balogh, Revisor