97-1606(IT)I
BETWEEN:
VILHO A. PARTANEN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on November 19, 1997 at Montréal, Quebec by
the Honourable Judge Louise Lamarre Proulx
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Michel Lamarre
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1995 taxation year is dismissed, without costs, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 19th day of January 1998.
|
"Louise Lamarre Proulx" |
J.T.C.C.
Date: 19980119
Docket: 97-1606(IT)I
BETWEEN:
VILHO A. PARTANEN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Lamarre Proulx, J.T.C.C.
[1] This is an appeal by way of the informal procedure; it concerns the disability tax credit provided for by section 118.3 of the Income Tax Act (the "Act") which was claimed by the Appellant for the 1995 taxation year.
[2] The questions at issue are whether it is an essential condition of entitlement to this credit that a certificate issued by a doctor be provided, and if so, whether this essential condition infringes the Appellant's rights as guaranteed by the Charter of Rights and Freedoms (the "Charter").
[3] The Minister of National Revenue (the "Minister"), in assessing the Appellant, disallowed the disability tax credit for the reasons described in paragraph 7 of the Reply to the Notice of Appeal (the "Reply"), as follows:
a) for the 1995 taxation year, the Appellant claimed a disability tax credit in the amount of $719.61 ($4,233 x 17%) for himself;
b) the Appellant has not submitted with his tax return a prescribed form T2201 duly completed and signed by a doctor;
c) without additional information, the Minister considered that the Appellant's ability to perform a basic activity or daily living was not markedly restricted during the 1995 taxation year;
d) given that the Appellant's ability to perform a basic activity or daily living was not markedly restricted during the 1995 taxation year, the disability tax credit in the amount of $719.61 was not allowed.
[4] The Appellant explained to the Court that, on January 23, 1981, he had a car accident while driving a taxi in the City of North York in the Municipality of Metropolitan Toronto (Exhibit A-1). This car accident resulted in a knee injury, neck pain and headaches (Exhibit A-2, Orthopaedic Report dated May 3, 1984). Since his accident, the Appellant appears to have become unable to cope in a work situation and apparently receives a disability pension.
[5] He provided the Court with his medical record and with his correspondence with government authorities respecting the effects of this accident which material was filed, as Exhibits A-3 to A-6.
[6] He also explained to the Court that it would be nearly impossible for him to obtain a doctor's certificate as doctors do not want to see him and he may not want to see them. Moreover, he said that he did not have the money to pay for such a certificate, although no evidence was tendered to show that these certificates had to be paid for or what amount would have to be paid. Despite the statement that he did not see doctors anymore, later on in the hearing he said that he had recently seen an eye doctor at Notre-Dame Hospital. Asked why he had not asked this doctor to complete the required certificate, he answered that he could not ask this doctor to complete a disability certificate when he was seeing him for his eyes.
[7] He testified that he lived by himself in an apartment, that he walked to a nearby grocery store to do his grocery shopping, that he did his own cooking, washed his dishes himself and also cleaned his apartment himself. He says that the people in the neighbourhood are friendly and that he has some friends nearby.
[8] Paragraph 118.3(1) of the Act reads as follows:
(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,
(a.2) a medical doctor, or where the impairment is an impairment of sight, a medical doctor or an optometrist, has certified in prescribed form that the individual has 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,
(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,
for the purposes of computing the tax payable under this Part by the individual for the year, there may be deducted an amount determined by the formula
A x $4,118
where
A is the appropriate percentage for the year. (Emphasis added.)
[9] It is a requirement of the Act that a medical doctor must have certified in prescribed form that the individual has 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.
[10] It is also my view that the requirement under section 118.3 of the Act that a certificate of a medical doctor be filed with the income tax return of the individual claiming the tax credit does not contravene the equality rights guaranteed by the Charter since this requirement is imposed on every taxpayer who claims the tax credit for mental or physical impairment. Nor do I see how it can be argued that it is a matter of systemic discrimination since in Canada the health care system is universal.
[11] As he has not filed the prescribed certificate, the Appellant's appeal should fail. I must say that it should also fail because the evidence has not revealed that the Appellant was unable or required an inordinate amount of time to perform any basic activity of daily living as defined in subparagraph 118.4(1)(c) of the Act.
[12] Paragraph 118.4(1) of the 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.
[13] There is not one of the basic activities described in subparagraph 118.4(1)(c) of the Act that the Appellant is unable to perform. Indeed, according to his testimony he is quite able to manage his life on his own. I must add with respect to the activity of working that the fact that the Appellant may be unable to perform this activity is not relevant since it is specifically excluded from the meaning of basic activities by subparagraph 118.4(1)(d) of the Act.
[14] The appeal is therefore dismissed.
Signed at Ottawa, Canada, this 19th day of January 1998.
|
"Louise Lamarre Proulx" |
J.T.C.C.
COURT FILE NO.: 97-1606(IT)I
STYLE OF CAUSE: Vilho A. Partanen and
Her Majesty The Queen
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 19, 1997
REASONS FOR JUDGMENT BY: The Honourable Louise Lamarre Proulx
DATE OF JUDGMENT: January 19, 1998
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: Michel Lamarre
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: George Thomson
Deputy Attorney General of Canada
Ottawa, Canada