Date: 20020116
Docket: 2001-2079-IT-I
BETWEEN:
KEVIN M. AUSTIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
_____________________________________________________________
For the Appellant: The Appellant himself
Counsel for the Respondent: Mark Heseltine
_____________________________________________________________
Reasonsfor Judgment
(Delivered orally from the Bench at Calgary, Alberta, on November 9, 2001)
McArthur J.
[1] This is an appeal from an assessment for the 1999 taxation year involving a claim by the Appellant for a disability tax credit under section 118.3 of the Income Tax Act. The Appellant abandoned his appeals for the taxation years 1987 through to 1998 because no notices of objection had been filed by him for those years and, therefore, they were not validly before the Court. For the l999 taxation year, the issue is whether the Appellant's dependent daughter Jessica suffered from a severe and prolonged mental or physical impairment within the meaning of sections 118.3. and 118.4 of the Act.
[2] Subsection 118.3(1) reads:
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 or would be 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 or would be markedly restricted,
(b) the individual has filed for a taxation year with the Minister the certificate described in paragraph (a.2), and
(c) no amount in respect of remuneration for an attendant or care in a nursing home, in respect of the individual, is included in calculating a deduction under section 118.2 (otherwise than because of paragraph 118.2(2)(b.1)) for the year by the individual or by any other person,
there may be deducted in computing the individual's tax payable under this Part for the year the amount determined by the formula ...
Subsection 118.3(2) permits a parent such as the Appellant to claim a credit with respect to a dependant. Subsections 118.4(1)(a), (b) and (c)(i) read as follows:
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;
...
The basis of the Appellant's case is that Jessica is markedly restricted in her ability to think, perceive and remember all or substantially all of the time or she requires an inordinate amount of time to do so.
[3] Jessica is now 14 years old. Her father, the Appellant, and Gregory M. Bullivant testified. Her father is a manager with Telus Corporation and her mother a practising chiropractor. Mr. Bullivant is a clinical psychologist and a highly qualified educator of children with learning disabilities. Jessica understandably did not testify. She attends school at Foothills Academy, a private school for those with learning disabilities. Obviously, the best evidence of her mental condition comes from her parents and teacher. The Respondent produced no witnesses. Jessica is the only child of Sherry Austin and her former partner, Mark Dochtermann. Her parents' relationship ended when Jessica was only 9 months of age and Mark has not had any contact with her since that time. Sherry is presently married to Kevin Austin and they one other child, a six-year old daughter, Alexandra.
[5] Jessica has had difficulties academically in reading, writing and mathematics since grade one. She has been tutored in math weekly or twice weekly for many years. In a psychological report dated October 11, 1998,[1] Dr. Linda J. Matsalla stated:
Jessica's conversational speech and language were age-appropriate. She had some difficulty comprehending and remembering spoken questions and directions and frequently needed repetition. She also experienced word-finding problems when attempting to answer questions verbally.
Under academic functioning, Dr. Matsalla added:
... Jessica is presently reading at a grade 5.2 level, which is almost a year behind her grade placement, but within Average limits. She became confused and used inappropriate word attack skills as words increased in length. She held her face very close to the page, moved her head and read word-by-word. As the length of sentences increased, she showed difficulties sorting out information and remembering what she read.
In math, she scored overall at grade 4.9, which is Below Average for her grade placement. She showed difficulties in written calculation and in applied problems. In written calculation she had trouble remembering the sequence of problem-solving steps, and would transpose numbers. She has difficulties with fractions and decimals. She also had difficulties sorting out relevant from irrelevant information and developing an organized problem-solving plan in applied problems.
Again, the focus is on Jessica's perceiving, thinking and remembering in 1999. At the present time, she is able to read at grade 8 or 9 level but does not comprehend or retain the text of what she has read. Since 1998, she has been attending Mr. Bullivant's special school for persons with her type of learning disability.
[6] Her father testified that she cannot retain instructions. If asked to pick up three things, she would return shortly having completely forgotten what her instructions were. Mr. Bullivant stated that if told in the classroom that the bathroom was down the hall to her left, she could not find it on her own. She watches others and follows. She is very private or inward with her thoughts and suffers from a severe inferiority complex or feelings of low self worth. She cannot use the bus system on her own because she cannot retain instruction and know where to get on and off, although she is bussed every day to and from school on her own.
[7] On the positive side, she has an interest in art and cooking. She watches television cooking shows. She gets along very well with her six year old sister and can care for her up to one hour at a time alone. Mr. Bullivant described her as a delightful girl who requires careful directions and is very, very passive. She is not spontaneous. She has progressed in her academic studies since 1999. She can feed and dress herself and shops for clothes with her mother.
[8] In the disability tax credit certificate dated February 3, 2000,[2] Mr. Bullivant completed the following answers to specific questions:
4. Mental Functions
Is your patient able to think, perceive, and remember, using medication or therapy if necessary?
"Severe LD" Ticked "No"
8. Has the impairment lasted, or is it expected to last, for a continuous period of at least 12 months?
Ticked "Yes"
9. Is the impairment severe enough to restrict the basic activities of daily living identified above all or almost all the time even with therapy and the use of appropriate aids and medication?
Ticked "Yes"
I accept the evidence of the Appellant and Mr. Bullivant. The Appellant was very emotional during his evidence. I can only imagine the love and concern he has for Jessica and the sacrifices he and Mrs. Austin have made and are making on behalf of their daughter.
[9] I find the facts in this appeal comparable to those in Radage v. The Queen,[3] and I adopt Judge Bowman's reasoning in every respect. There is no doubt that Jessica's ability to perform a basic activity of daily living is markedly restricted all of the time. Following Radage, which was confirmed by the Federal Court of Appeal in Johnson v. The Queen,[4] I find the severity of her disability entitles the Appellant to a disability tax credit and, therefore, the appeal is allowed with costs, if any.
Signed at Ottawa, Canada, this 16th day of January, 2002.
"C.H. McArthur"
J.T.C.C.
COURT FILE NO.: 2001-2079(IT)I
STYLE OF CAUSE: Kevin M. Austin and
Her Majesty the Queen
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: November 6, 2001
REASONS FOR JUDGMENT BY: The Honourable Judge C.H. McArthur
DATE OF JUDGMENT: November 16, 2001
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: Mark Heseltine
COUNSEL OF RECORD:
For the Appellant:
Name: N/A
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada