[OFFICIAL ENGLISH TRANSLATION]
98-2310(IT)I
BETWEEN:
JEAN-PIERRE BÉRUBÉ,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard at Val d'Or, Quebec, on May 4, 1999, by
the Honourable Deputy Judge J.F. Somers
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Anne Poirier
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1996 taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 21st day of May 1999.
|
"J.F. Somers" |
D.J.T.C.C.
Translation certified true
on this 10th day of July 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 19990521
Docket: 98-2310(IT)I
BETWEEN:
JEAN-PIERRE BÉRUBÉ,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Somers, D.J.T.C.C.
[1] The appellant served on the Minister of National Revenue ("the Minister") a notice of objection to the Minister's refusal to grant him the tax credit for a severe and prolonged mental or physical impairment for the 1996 taxation year.
[2] The appellant was the only witness heard in this case. He explained his disability, which he has had since birth. He has clubfeet, which reduces his ability to walk.
[3] The appellant is a 41-year-old man with a CEGEP education, which he completed in 1979. After his studies, he worked as a truck driver transporting goods in the Rimouski area for two years. He was able to do that work with assistance and sometimes alone. He worked in Baie-Comeau as a mechanic for two years. For three to seven years, he was a logging equipment operator, driving a delimber and a skidder. During that time, he was able to drive a truck.
[4] Since 1993, he has been working for a school board in Senneterre, Quebec, as a maintenance worker. He manages the ventilation, cooling and heating system. He drives his own vehicle to get to the school at about 7:45 a.m.
[5] His job enables him to work in a mainly seated position. He has to walk 10 or so times a day to go to the secretary's office, which is about 20 metres away, to the cafeteria 30 metres away and to the bathroom 10 metres away, which he does without using a cane. He occasionally has to wear prostheses. He can walk 100 metres without a cane. Because of the pain in his feet, he has to take aspirin or Tylenol three or four times a week.
[6] His visits to the doctor are limited to about two every three years. Medical reports explaining his physical disability were filed.
[7] In making and confirming the assessment for the 1996 taxation year, the Minister assumed, inter alia, the following facts set out in paragraph 6 of the Reply to the Notice of Appeal:
[TRANSLATION]
(a) a T2201 (96) form, the Disability Tax Credit Certificate, was completed on September 8, 1997, by a licensed doctor, Dr. Juan Carlos L. Chirgwin, who diagnosed his patient as having clubfeet; however, his view was that the appellant could walk using an aid;
(b) on November 27, 1997, the Minister acknowledged receipt of a second T2201 (96) form, the Disability Tax Credit Certificate, that had been completed on November 27, 1997, by a licensed doctor, Dr. Juan Carlos L. Chirgwin, who diagnosed his patient as having clubfeet and as being unable to walk 50 metres on level ground using an aid;
(c) on December 24, 1997, the Minister requested Dr. Juan Carlos L. Chirgwin in writing to complete a questionnaire concerning the appellant's ability to walk;
(d) on January 28, 1998, the Minister sent the Disability Tax Credit (DTC) committee in Ottawa the two T2201 (96) forms that the appellant had submitted to him as well as the questionnaire completed by Dr. Juan Carlos L. Chirgwin on January 6, 1998;
(e) on February 4, 1998, the DTC committee, after checking into the matter, determined that during the 1996 taxation year the appellant was not markedly restricted in performing the basic activities of daily living because of a severe and prolonged mental or physical impairment;
(f) the Minister determined that the appellant is not markedly restricted in performing the basic activities of daily living;
(g) during the 1996 taxation year, the appellant was not clearly restricted in performing the activities of daily living because of a severe and prolonged mental or physical impairment.
[8] In the questionnaire he completed, Dr. Juan Carlos L. Chirgwin stated that the appellant is not confined to bed and does not use a wheelchair. He can walk using specialized prostheses. Dr. Chirgwin stated that the appellant has a 25 percent inability to walk even with the use of aids. In conclusion, his disability could deteriorate with time and affect his degree of functional limitations.
[9] Subsections 118.3(1) and 118.4(1) of the Income Tax Act ("the Act") and Regulations for 1996, which apply to a severe and prolonged mental or physical impairment, read as follows:
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,
(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.
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,
(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.
[10] Paragraph 118.4(1)(b) uses the term "markedly". The case law has defined that term as follows:
. . . 'markedly restricted' will continue to mean that, despite the use of medication, therapy or devices, the effect of the impairment is to greatly restrict the performance of activities of daily living.
[11] The evidence showed that the appellant has a severe and prolonged physical disability. However, he can attend to his daily business without being markedly restricted.
[12] He can walk 100 metres without a cane. He occasionally uses prostheses. He must take aspirin or Tylenol two or three times a week to relieve his pain. His disability does not prevent him from driving his car or walking while at work. These symptoms do not meet the definition of "markedly".
[13] Although the Court sympathizes with the appellant because of his physical disability, he is able to engage in the basic activities of daily living. If his disability worsens, his condition might meet the conditions imposed by the Act.
[14] The Minister was right in concluding that the appellant is not entitled to the disability tax credit for the 1996 taxation year because he was not clearly restricted in performing the activities of daily living as a result of a severe and prolonged mental or physical impairment within the meaning of sections 118.3 and 118.4 of the Act.
[15] The appeal is therefore dismissed.
Signed at Ottawa, Canada, this 21st day of May 1999.
|
"J.F. Somers" |
D.J.T.C.C.
Translation certified true
on this 10th day of July 2003.
Sophie Debbané, Revisor