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Docket: 2003-572(IT)I |
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BETWEEN: |
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WILLIAM GOSSIFIDOU, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
____________________________________________________________________
Appeal heard on August 7, 2003, at Hamilton, Ontario,
By: The Honourable Justice E.A. Bowie |
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Appearances: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Joel Oliphant |
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JUDGMENT
The appeal form the assessment of tax made under the Income Tax Act for the 2001 taxation year is dismissed.
Signed at Ottawa, Canada, the 2nd day of September, 2003.
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"E.A. Bowie" |
Bowie J.
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Citation: 2003TCC609 |
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Date: 20030902 |
Docket: 2003-572(IT)I |
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BETWEEN: |
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WILLIAM GOSSIFIDOU, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
REASONS FOR JUDGMENT
Bowie J.
[1] Mr. Gossifidou brings this appeal from his income tax assessment for 2001. It was heard at Hamilton, Ontario under the Court's informal procedure. The issue is whether he is entitled to the disability tax credit that is provided for in sections 118.3 and 118.4 of the Income Tax Act (the Act).
[2] The Appellant has been involved in two separate motor vehicle accidents, and they have left him considerably limited in his daily living activities. He has degenerative disc disease affecting three vertebrae in his neck; he has nerve damage affecting his spine; he has arthritis in his arms and legs. He can walk more than six blocks, but he does so slowly, and certainly not for long distances without taking frequent rests. After he walks any great distance, he suffers from muscle spasms and pain in his legs. His bowel and bladder functions are affected in that it takes him a considerable time to evacuate; he said that he may spend as much as two or three hours in the bathroom. He does housework, but it can take him as long as five and one-half hours to vacuum his apartment and do the dishes. He said that he does not sleep well because of the pain.
[3] The Appellant has received the disability tax credit annually since 1984. Having once qualified to receive it, he was not asked to file a medical certificate, or any other evidence of his medical condition until 2001. Although the Minister of National Revenue is entitled to require taxpayers who claim the credit to provide the prescribed medical certificate each year, in practice he seldom does so. That was the case with Mr. Gossifidou for the years between 1984 and 2000. He made it clear in his evidence that he felt that it was unfair to require him to requalify in 2001, but that is a matter for the Minister's discretion, not mine. My jurisdiction is limited to deciding, on the basis of the evidence before me, whether the Appellant has met the requirements of the Act so as to be entitled to the credit that he claims.
[4] Unfortunately for Mr. Gossifidou, the medical certificate that his doctor provided for him to file with his return for 2001 does not establish the minimum requirements to qualify him to receive the credit under section 118.3. The relevant part of that subsection 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 but for therapy that
(i) is essential to sustain a vital function of the individual,
(ii) is required to be administered at least three times each week for a total duration averaging not less than 14 hours a week, and
(iii) cannot reasonably be expected to be of significant benefit to persons who are not so impaired,
(a.2) in the case of
(i) a sight impairment, a medical doctor or an optometrist,
(i.1) a speech impairment, a medical doctor or a speech-language pathologist,
(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 but for therapy referred to in paragraph (a.1),
(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 ...
[irrelevant]
The certificate signed by Mr. Gossifidou's doctor states that he has "severe cervical and lumbar disc disease", but in answer to each of the specific questions:
"Can your patient see?"
"Can your patient walk?"
"Can your patient speak?"
"Can your patient perceive, think and remember?"
"Can your patient hear?"
"Can your patient feed or dress himself or herself?"
"Can your patient personally manage bowel and bladder functions?"
the doctor answered "yes". As a result the Minister denied the Appellant the tax credit.
[5] Having heard Mr. Gossifidou's evidence as to his disability, and the degree to which it affects his activities, I cannot say that it is inconsistent with the answers given by the doctor in completing the prescribed form.
[6] The Federal Court of Appeal dealt with a very similar situation in McIsaac v. The Queen.[1] In that case Sexton J.A., speaking for the Court, said:
5 While we sympathize with both Respondents and with the position taken by the Tax Court Judge we cannot agree with him on this question. Section 118.3(1)(a.2) of the Income Tax Act is not merely directory. It is mandatory. Simply put, there must be a certificate by the doctor that the individual suffers impairments in the language of these subsections. This Court held to the same effect in Partanen v. Canada, [1999] F.C.J. 751 and we feel bound by this decision.
6 It is not obvious that putting the questions as they are in this form results in a thorough consideration by the doctor of the questions confronting him. Putting checks in boxes is perhaps not the best way of eliciting a just result. Nevertheless the Act requires such certificates as a prerequisite to obtaining disability tax credits.
[7] Mr. Oliphant very fairly brought to my attention the decision of Rip J. in Watkin v. Canada.[2] The Appellant in that case was not prevented by her medical condition from carrying out any one activity of daily living, but Rip J. held that the cumulative effect of her condition on a number of activities of daily living was such that she nevertheless qualified for the tax credit. However, the medical certificate in that case did certify that the taxpayer's activities of daily living were markedly restricted, although apparently no one activity alone was sufficiently restricted to meet the statutory test. In the present case, there is no such certification at all. Moreover, in this case much of the Appellant's evidence as to the demands that were made on his time by activities other than walking related specifically to housework, which Parliament has specifically excluded from the definition of "a basic activity of daily living" found in paragraph 118.4(1)(c) of the Act. This is not a case to which the principle of Watkin can be extended.
[8] In the absence of any certificate satisfying the requirements of section 118.3, I have no alternative but to dismiss this appeal. I appreciate that it is difficult for Mr. Gossifidou, and others in the same position, to understand why they were eligible to receive this tax credit a decade ago but are now found to be ineligible, even though their symptoms often have become more severe with the passage of time. One reason for this is that Parliament amended the Act in 1994, and in doing so made it more difficult for a taxpayer to qualify.
[9] The appeal is dismissed. In view of the history of this matter the Minister may consider it an appropriate case in which to apply his power under subsection 220(3.1) of the Act to waive any interest that would otherwise be payable by the Appellant.
Signed at Ottawa, Canada, this 2nd day of September, 2003.
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"E.A. Bowie" |
J.T.C.C.
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CITATION: |
2003TCC609 |
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COURT FILE NO.: |
2003-572(IT)I |
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STYLE OF CAUSE: |
William Gossifidou and Her Majesty the Queen |
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PLACE OF HEARING: |
Hamilton, Ontario |
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DATE OF HEARING: |
August 7, 2003 |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice E.A. Bowie |
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DATE OF JUDGMENT:
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September 2, 2003 |
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APPEARANCES: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Joel Oliphant |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
N/A |
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Firm: |
N/A |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |