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Date: 20030121 |
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Docket: 2002-549(IT)I |
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BETWEEN: |
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SUSAN JASPER, |
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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 January 8, 2003 at Nanaimo, British Columbia
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Before: The Honourable Judge L.M. Little |
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Appearances: |
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Agent for the Appellant: |
Stephen Jasper |
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Counsel for the Respondent: |
Michael Taylor |
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JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 2000 taxation year is allowed, without costs, and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
Signed at Vancouver, British Columbia, this 21st day of January 2003.
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"L.M. Little" |
J.T.C.C.
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Date: 20030121 |
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Docket: 2002-549(IT)I |
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BETWEEN: |
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SUSAN JASPER, |
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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
Little, J.
A. FACTS
[1] Several doctors have determined that the Appellant has significant chemical, environmental and food sensitivities. Doctors have also determined that the Appellant suffers from Fibromyalgia. The Appellant's medical condition is hereinafter referred to as the "Medical Condition".
[2] The Appellant's Medical Condition was first diagnosed in 1987 and has persisted over the years, i.e. the Appellant's Medical Condition is severe and prolonged.
[3] The Appellant testified that due to severe and life threatening reactions to certain foods she was admitted to St. Joseph's Hospital in Comox on an emergency basis on three separate occasions, the first in 1997, the second in 1998 and in 1999. (See Exhibits A-1, A-2 and A-3.)
[4] The Medical Condition requires that the Appellant maintain a daily journal containing information on the food that she eats as well as the reaction that she suffers when she consumes various types of food.
[5] The Appellant testified that the Medical Condition restricts her ability to feed herself. Officials of the Canada Customs and Revenue Agency (the "CCRA") do not agree with this statement.
[6] The Appellant maintains that she requires an inordinate amount of time to manage and maintain her diet. Officials of the CCRA do not accept this statement. The Appellant testified that because of her extreme sensitivity to many foods she has determined that she tolerates some foods better if she has six meals per day. This requirement means that the Appellant has to lengthen the daily time required to prepare and consume food.
[7] The Appellant maintains that she suffers from an impairment that markedly restricts her ability to perform the basic activities of daily living of feeding herself.
[8] When the Appellant filed her income tax return for the 2000 taxation year she claimed a disability tax credit in the amount of $4,293.00 in respect of the Medical Condition.
[9] By a Notice of Reassessment dated the 16th day of July 2001 the Minister of National Revenue (the "Minister") disallowed the disability tax credit.
B. ISSUE
[10] Is the Appellant entitled to the disability tax credit in determining her income for the 2000 taxation year?
C. ANALYSIS
[11] When the Appellant filed her income tax return for the 2000 taxation year she included with the tax return a copy of a Disability Tax Credit Certificate (the "Certificate") signed by Dr. Rick Potter-Cogan. Dr. Potter-Cogan is the Appellant's family doctor.
[12] The Certificate contained the following question:
Indicate medical diagnosis relevant and describing the restriction ...
In answer to this question Dr. Potter-Cogan made the following comment regarding the Appellant's Medical Condition:
Multiple food intolerances. Has a very restricted diet and has to try and prepare special meals.
[13] The Certificate also contained nine separate questions with the following heading:
Complete the boxes that apply.
Note: If your patient requires an inordinate amount of time to perform one of these activities, answer "NO" to the applicable question.
. . .
Question 6. Feeding and dressing
(a) Is your patient able to feed himself or herself using an aid if necessary?
Dr. Potter-Cogan made the following note in the Certificate:
Yes No
√ √
[14] Dr. Potter-Cogan also made the following comment in the Certificate:
This patient spends a lot of time searching for and preparing a separate, special diet.
[15] The Certificate also contained the following question:
9. Is the impairment severe enough to restrict the basic activities of daily living identified above, all or almost all of the time, even with therapy and the use of appropriate aids and medications?
Dr. Potter-Cogan indicated YES in the Certificate and made the following comment:
Cannot eat normally - needs special diet.
[16] Dr. Potter-Cogan was called as a witness by counsel for the Respondent. Dr. Potter-Cogan testified that he found some of the words in the Certificate confusing and that is why he marked YES and NO in answer to Question No. 6. He specifically stated that in his opinion the Appellant was able to feed herself (i.e. the answer to this question is "YES") but he also felt obliged to answer "NO" to the question because in his opinion the Appellant required an inordinate amount of time to feed herself.
[17] In my opinion the Certificate provided by Dr. Potter-Cogan and the explanation provided by Dr. Potter-Cogan during his testimony satisfies the requirement contained in paragraph 118.3(1)(a.2) of the Income Tax Act (the "Act").
[18] I must now determine if the Appellant qualifies under subsection 118.4(1) of the Act. This subsection provides that the disability tax credit is available to anyone with a severe and prolonged mental or physical impairment that markedly restricted the person's ability to perform a basic activity of daily living. A basic activity of daily living is defined in subsection 118.4(1) to include feeding oneself but to exclude working, housekeeping or a social or recreational activity.
[19] A person's ability to feed oneself is "markedly restricted" if, all or substantially all of the time, the person is unable or requires an inordinate amount of time to feed himself or herself. Létourneau J.A., speaking for the majority of the Federal Court of Appeal in Johnston v. Canada (1998), 223 N.R. 101, [1998] 2 C.T.C. 262, 98 DTC 6169, [2001] F.C.J. No. 169 (F.C.A.), said at paragraph 18:
... 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.
[20] In Radage v. Canada, [1996] 3 C.T.C. 2510, 96 DTC 1615, Judge Bowman of the Tax Court of Canada explained the object of the disability tax credit as follows at page 1625:
The legislative intent appears to be to provide a modest amount of tax relief to persons who fall within a relatively restricted category of markedly physically or mentally impaired persons. The intent is neither to give the credit to everyone who suffers from a disability nor to erect a hurdle that is impossible for virtually every disabled person to surmount. It obviously recognizes that disabled persons need such tax relief and it is intended to be of benefit to such persons.
[...]
... 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. ...
[21] I also refer to the statement of Bonner T.C.J. in M.R. Hodgin v. The Queen, ([1995] E.T.C. 515, [1995] T.C.J. No. 1183):
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 food stuffs 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. Here the limitations on the movement of the Appellant's hands required the assistance of her husband in meal preparation to a degree that supports a conclusion that the Appellant was incapable of feeding herself.
[22] In reaching my conclusion I have reviewed in detail the comments made by Madam Justice Sharlow in Hamilton v. Canada, [2002] F.C.J. No. 422. In that case Madam Justice Sharlow said at page 3:
The notion of feeding, in my view, also involves the ability to prepare a meal which conforms to a medically prescribed diet and medication which maintains one's state of health or prevents its deterioration.
To limit the notion of feeding to the ability to eat a meal is to overlook the objective of the statute which, it bears repeating, is to financially assist those who, because of their disability, require assistance in fulfilling such a basic activity of daily living. To include the preparation of a reasonable meal in the notion of feeding is, on the contrary, fully consistent with such objective and the spirit of the disability credit.
[23] At page 6 Sharlow J.A. said:
In my view, the legal question raised by this case is whether, in the context of the disability tax credit provisions of the Income Tax Act, the work required to find and procure foods that can safely be eaten are properly considered part of "food preparation", which the jurisprudence has now established is an aspect of "feeding oneself" under subsection 118.4(1). In this case, Judge Campbell answered that question in the affirmative, as have other Tax Court Judges in other cases (discussed below). I respectfully agree with that conclusion. Anyone who has ever prepared a meal must recognize that the process of food preparation begins with choosing and procuring the food. No other conclusion makes sense.
That is not the end of the debate, however. A person with a medical condition that imposes dietary constraints may claim that, because of those constraints, food procurement takes an inordinate amount of time. If the existence of the medical condition and the resulting dietary constraints are established, it would then be a question of fact whether, for that person, the time spent in finding and procuring a safe food supply is excessive or inordinate in the sense of a marked departure from the time spent by normal persons.
Thus, not everyone with celiac disease is automatically entitled to the disability tax credit. Eligibility for the disability tax credit would depend on the circumstances of the claimant. The symptoms suffered in a particular case may or may not be as severe as in the case of Mr. Hamilton, and they may or may not require the person to take an inordinate amount of time to procure food that can be safely ingested.
The critical role played by the evidence in each case is illustrated by the jurisprudence in the Tax Court. Apart from this case, there are five reported decisions of the Tax Court involving persons claiming the disability tax credit on the basis of a marked restriction in the ability to feed oneself. Three claims succeeded, and two failed. As I read these cases, differences in result are attributable primarily to the evidence.
Where the time spent in food procurement was only slightly more than normal or represented only increased inconvenience, the person was held not to be entitled to the disability tax credit: Hagen v. Canada, [1997] 3 T.C.C. 3128, [1997] T.C.J. No. 827 (T.C.C.) per Judge Bonner, and McMaster v. Canada, [1999] 1 C.T.C. 2658, [1998] T.C.J. No. 301 (T.C.C.) per Judge Lamarre Proulx. The following appears at paragraph 14 in McMaster:
... if the foods that a person could eat were so rare that a person had to spend an inordinate amount of time looking for them, it would have to be concluded that looking for food was not separate from the activity of feeding oneself. That is not the case here, however. The suitable foods are not so rare that the appellant can hardly find anything to eat. To a very large degree, however, he can find his food in supermarkets like other people do, although he must be careful to check the ingredients in prepared foods. He has to go farther away to obtain some foods, such as pasta. Because of that, and because of the care he must take in purchasing prepared products, he argued that he is different from other people. But to what extent? To an extent that strikes me as minimal.
By contrast, in Leduc v. Canada, [2000] 3 C.T.C. 2264, [1999] T.C.J. No. 765 (T.C.C.), Judge Lamarre found that a person with celiac disease was entitled to the disability tax credit. She said this at paragraph 16 of her reasons:
... I find the evidence shows that, in order to feed herself (that is to say to take all the necessary steps in preparing meals suitable to her diet), Ms. Michalk must take much more time than healthy persons are normally required to devote to this activity. In my view, it requires a marked departure from normality.
Most recently, in Noaille v. Canada, [2001] T.C.J. No. 603, Judge Bowman also found that a person who suffered the symptoms of celiac disease was entitled to the disability tax credit. He said this at paragraphs 12, 15 and 16:
[12] I acknowledge that there appears to be a difference of opinion within this Court concerning celiac disease ...
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[15] It would be pointless to try to reconcile these two lines of decisions. Each case turns on its own facts and, particularly in the case of celiac disease, differences in the severity of the disease are extreme and striking. Mrs. Noaille's case is clear and extreme.
[16] I agree with and adopt Judge Lamarre's reasoning in Leduc and that of Judge Campbell in Hamilton. In their decisions, both judges followed the reasoning of the Federal Court of Appeal in a previous decision in Johnston v. The Queen, 98 DTC 6169.
In Nantel v. Canada, [2000] T.C.J. No. 345, Judge Lamarre Proulx held, again following Johnston, that the disability tax credit was available for children whose exceptionally severe food allergies required the mother to spend an inordinate amount of time looking for and preparing foods. She said this at paragraph 17 of her reasons:
When it comes to the activity of feeding oneself, it is not just the act of putting food in one's mouth that must be considered. Looking for and preparing food must be as well. ... As regards celiac disease, I have not found that a person suffering therefrom requires very much more time for feeding himself or herself than is required by normal people. In the instant case, however, I feel that the time spent looking for and preparing food greatly exceeds the time usually spent by normal people on those activities.
To summarize, persons with celiac disease or other medical conditions that impose dietary restrictions are eligible for the disability tax credit if, but only if, they can establish by evidence that they require an inordinate amount of time to find, procure and prepare foods that can safely be eaten.
[24] From the evidence presented by the Appellant and the testimony of Dr. Potter-Cogan I have concluded that the Appellant requires an inordinate amount of time to find, procure, prepare and consume foods that she can safely eat. Based on the Hamilton decision and the other decisions referred to above, the appeal is allowed.
Signed at Vancouver, British Columbia, this 21st day of January 2003.
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"L.M. Little" |
J.T.C.C.
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COURT FILE NO.: |
2002-549(IT)I |
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STYLE OF CAUSE: |
Susan Jasper and Her Majesty the Queen |
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PLACE OF HEARING: |
Nanaimo, British Columbia |
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DATE OF HEARING: |
January 8, 2003 |
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REASONS FOR JUDGMENT BY: |
The Honourable Judge L.M. Little |
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DATE OF JUDGMENT: |
January 21, 2003 |
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APPEARANCES: |
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Agent for the Appellant: |
Stephen Jasper |
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Counsel for the Respondent: |
Michael Taylor |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
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Firm: |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |