Date: 20010517
Docket: 2000-4473-IT-I
BETWEEN:
RAY F. HAMILTON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
_________________________________________________
Agent for the Appellant: Quintin Wight
Counsel for the Respondent: Shalene Curtis-Micallef
_________________________________________________
Reasons for Judgment
(delivered orally from the Bench on April 5, 2001 at Ottawa, Ontario)
Campbell, J.
[1] This is an appeal from an assessment made by the Minister of National Revenue (the "Minister"), for the 1999 taxation year.
[2] The issue is whether the Appellant, Ray Hamilton, is entitled to a tax credit for physical impairment, pursuant to sections 118.3 and 118.4, of the Income Tax Act (the "Act"), by reason of the effect of celiac disease. More specifically, I must decide whether the Appellant's impairment is a severe and prolonged physical impairment, which markedly restricts his ability to perform a basic activity of daily living, in accordance with paragraph 118.4(1)(b).
[3] Section 118.4 clarifies and restricts section 118.3 and states that the impairment is prolonged where it has lasted or can reasonably be expected to last for a continuous period of at least 12 months (subparagraph 118.4(1)(a)).
[4] Paragraph 118.4(1)(b) sets out that an individual's ability to perform a basic activity of daily living is markedly restricted where all or substantially all of the time, even with therapy and the use of appropriate devices and medication, the individual is unable to perform a basic activity of daily living. The basic activity of daily living which the Appellant contends is markedly restricted, is "feeding oneself", as set out in subparagraph 118.4(1)(c)(ii).
[5] It is the Appellant's position that his ability to feed himself is markedly restricted, as it takes him an inordinate amount of time to perform this activity. The Respondent contends that the language of the provisions in the Act is not broad enough to encompass those activities of the Appellant and if they are broad enough, "shopping" for the appropriate food is not included in the definition.
Facts
[6] The Appellant is a retired individual who has suffered with celiac disease since 1983. As a diabetic since 1979 he is also dependent on insulin.
[7] In celiac disease, according to Barbara Wendland, an expert in this area, called by the Respondent, gluten contained in some food products causes a "shaving away" or "eroding" of the villi contained on the surface on the inside surface of the inside lining of the bowel. The villi may be destroyed, and as a result, nutrients cannot be absorbed from food, causing a whole host of other problems and susceptibility to diseases.
[8] Ms. Wendland stated that the spectrum of five products that causes the symptoms are: wheat, rye, barley, oats and triticale.
[9] All of the evidence and the exhibits filed indicate that this disease is permanent, incurable and maybe life threatening, unless a gluten-free diet is strictly followed.
[10] Gluten is found in a wide variety of products, and may even be present in such far ranging products as some toothpaste, icing sugar, some pharmaceutical products such as vitamin supplements and may be included in some make-up products such as lipstick. It is essential the Appellant read the label of all products he intends to ingest. It was the evidence of the Appellant that he must check the labels of brand name products each and every time he buys, as manufacturers, being profit motivated, may reformulate the ingredients with no notice to the consumer. A brand product then, that the celiac could rely on for a period of time, may suddenly change its ingredients and no longer be gluten-free. There are the obvious fresh, raw or natural foods that are safe, for example, fresh fruits and vegetables, rice, potatoes, chicken, meat. However, among those so called "safe" gluten-free products, the evidence was that the celiac patients still have to remain vigilant if such foods were processed or cross contaminated.
[11] The Appellant argued that this greatly increased the amount of time he had to spend to shop for gluten-free products. He also stated that these diet restrictions affected the appropriate nutrition he required as a diabetic. He stated that he modified his celiac diet to accommodate his diabetes to ensure he received proper levels of calories, etc., as a diabetic. In addition to the time reading labels on each shopping excursion, the Appellant stated that, in each month, he would make one to several calls to manufacturers reciting new bar codes and numbers from products to ascertain if the same product he had been purchasing was still suitable for his diet, as the codes had changed.
[12] He shops at specialty stores and at a regular retail establishments to obtain the necessary replacement food products.
[13] After years of reading labels and shopping, he stated that he had used the guidelines contained in a pamphlet published by the Canadian Celiac Association entitled "Eat well, Be well" (Exhibit A-4) but stated that he had to continue to be vigilant in reading labels each time he shopped. He stated that it did not take him longer to eat but the time-consuming activity was in the purchasing and the preparation.
[14] At home, separate storage of his products, use of a separate area of the toaster and separate utensils, pots and pans are maintained to prevent cross contamination.
[15] Gluten-free baked products take longer to prepare and cook. The Appellant's gluten-free products are prepared first before his wife's regular foods, again to prevent cross contamination.
[16] Exhibit A-3 explains cross contamination as a process by which a gluten-free product loses that status because it comes in contact with something that is not gluten-free. For example, cross contamination could potentially occur if gluten-free and gluten containing products were prepared on the same counter or using the same utensils without adequate cleaning. The evidence of the Appellant was that he had to be cautious not only of the ingredients in gluten-free food but also wary of the possibility of cross contamination in the preparation of food at home, in restaurants, and in the purchase of some products, as well.
[17] The Appellant's wife gave evidence which corroborated that of her husband's. She stated that she prepared the food for both, with the Appellant assisting, and on occasion he prepared his own meals. All recipes for the Appellant must be adapted to his diet restrictions, both celiac and diabetic.
[18] Gillian MacDonnell, President of the Canadian Celiac Association, also gave evidence and corroborated the Appellant's evidence that even if a celiac is familiar with a label, he or she must continue to check labels for changes by the manufacturer. Ms. MacDonnell confirmed that the pamphlet (Exhibit A-4) "Eat well, Be well" referred to and used by the expert, Barbara Wendland, when establishing dietary guidelines for and in counselling celiac patients, was simply that - a reasonable starting guide for celiacs but that the Celiac Association could not keep up, on a regular basis, with constant manufacturer labelling changes.
[19] She stated that all labels must still be checked on a continuous basis with the occasional check with a manufacturer. In fact, this pamphlet contains the following cautionary note:
Manufacturers frequently change the ingredients used in their products.
Note that a variation in name or the addition of words such as "New or "Improved" may indicate that different ingredients have been introduced. Celiacs should carefully read all labels on a regular basis to ensure that products have remained gluten-free. In addition ... Canadian law does not require manufacturers to list ingredients which may contain gluten used in the processing or packaging of foods or beverages.
[20] Ms. MacDonnell also confirmed that baking was a trial and error experience with a 50% success rate in her particular case. She herself has had celiac disease for 16 years and stated that over time, familiarity with labels, products and stores, develops but that the time spent on these activities does not subside substantially over time.
[21] Relating this to her own particular experience, she stated her time devoted to these activities might have been reduced by one-third of the original amount of time she spent on such activities after first contracting the disease.
[22] The Disability Tax Credit Certificate (Exhibit R-1), filed in evidence confirmed at paragraphs 8 and 9 that the impairment was severe enough to restrict the basic activities of daily living and that it has lasted and was expected to last for a continuous period of at least 12 months.
Analysis
[23] It is clear that the Appellant suffers from celiac disease and that this disease has lasted for the past 17 to 18 years. No cure is available and the only control/treatment is the implementation of the specific gluten-free diet. The evidence supports that the Appellant is suffering from a severe and prolonged impairment.
[24] What I must then, determine in the circumstances of the present case, is whether the Appellant's ability to perform a basic activity of daily living, i.e. feeding oneself, is markedly restricted. Paragraph 118.4(1)(b) sets out the criteria that the Appellant must all or substantially all of the time be unable to perform that activity or require an "inordinate amount of time in which to do so". Therefore, does the Appellant devote an inordinate or excessive amount of time to performing the activity of feeding himself such that, given the facts before me, he is markedly restricted in feeding himself?
[25] In considering this same issue, Judge Lamarre in Leduc v. The Queen [1999] T.C.J. No. 765 relied on Létourneau, J.A. of the Federal Court of Appeal in Robert C. Johnston v. The Queen, 98 D.T.C. 6169 case. The Federal Court of Appeal in Johnston considered the appeal of a taxpayer who had been born with a congenital condition which affected the taxpayer's ability to walk, and feed and dress himself. At page 6172, Létourneau, J.A. discussed the notion of "markedly restricted" as follows:
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. (Emphasis added)
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."
[26] Judge Bonner of this Court discussed the act of feeding oneself in M.R. Hodgin v. The Queen, [1995] T.C.J. No. 1183 and stated:
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 foodstuffs 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. (Emphasis added)
[27] Létourneau, J.A. in the Johnston case agreed with the above caption quote from Judge Bonner's decision and went on to state that the notion of feeding oneself involves the ability to prepare a meal which conforms to a medically prescribed diet.
[28] I am aware that there are two lines of thought in this Court with respect to this very issue. All are under the informal procedure and are not of precedential value. On the evidence presented before me, I find that the Appellant must take an inordinate or excessive amount of time to prepare his meals in comparison to that of healthy persons not afflicted with celiac disease. The preparation of a reasonable variety of foods, sufficient to maintain a gluten-free diet and yet complement his diabetic requirements, requires the following:
(1) Canvassing several retail outlets for food products not commonly available in grocery stores.
(2) Reading each and every label, even those purchased regularly due to manufacturer changes.
(3) Monthly calls to the manufacturer to ascertain certainty of ingredients.
(4) Time spent locating, reading and adapting recipes to ensure reasonable range of food.
(5) Time spent in preparation and cooking time in excess of that involved in a healthy person's diet.
(6) Separation of products, utensils, pots and pans to prevent cross contamination of gluten-free products with those food products which are not.
(7) Additional kitchen cleanliness procedures not normally required for healthy persons.
[29] Such activities together are a marked departure from normality and represent a significant departure from what is common and customary. The Federal Court of Appeal in Johnston has stated that the notion of feeding oneself involves the ability to prepare a meal. Respondent's counsel argued that the act of shopping is not a part of the act of feeding oneself. I cannot agree. The purchase and preparation of gluten-free foods is the only avenue of control for this life threatening disease. To prepare appropriate nutritious gluten-free meals, the Appellant must shop for the proper food products. Without those he clearly cannot prepare a meal to satisfy both a gluten-free and diabetic diet. Shopping is the first logical step in this preparation process. I conclude that the preparation of meals for this Appellant involves shopping for and the selection of gluten-free foods with the attendant additional time expended including label reading, checking with manufacturers ensuring no cross contamination, adapting recipes, separation of products, additional preparation and cooking time to ensure a food item is gluten-free. This is more than mere inconvenience. The totality of all these activities taken together in anticipation of preparing every meal as gluten-free equates to an inordinate amount of time spent on feeding oneself compared to the time spent by the ordinary healthy person following a routine diet. The Appellant must live within the long shadow of this disease and in doing so must bear the additional costs and expend the necessary time to control this impairment. Judge Bowman of this Court stated in Radage v. The Queen, 96 D.T.C. 1615 at page 1625:
...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.
[30] In this same case, Judge Bowman went on to say that if there is doubt on which side of the line a claimant falls, the doubt should be resolved in favour of the claimant. In every case involving these provisions, this statement of Bowman's must in the end be the guiding directive.
[31] For these reasons, I allow the appeal and refer the assessment back to the Minister for reconsideration and reassessment on the basis that the Appellant is entitled to the section 118.3 disability tax credit for the 1999 taxation year.
Signed at Ottawa, Canada, this 17th day of May 2001.
"D. Campbell"
J.T.C.C.