Docket: 2003-863(IT)I

BETWEEN:

DENISE RAE NESBITT,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

____________________________________________________________________

Appeal heard on October 28, 2003 at Saskatoon, Saskatchewan

Before: The Honourable Justice Georgette Sheridan
Appearances:
Counsel for the Appellant:	Andrew Mason
Counsel for the Respondent:	Anne Jinnouchi

____________________________________________________________________

JUDGMENT

          The appeal from the assessment made under the Income Tax Act for the 2001 taxation year is allowed, without costs, and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment.

Signed at Ottawa, Canada, this 30th day of December 2003.

"G. Sheridan"

Sheridan, J.

Citation: 2003TCC942

Date: 20031230

Docket: 2003-863(IT)I

BETWEEN:

DENISE RAE NESBITT,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

Sheridan, J.

ISSUE

[1]      The question is whether the medical condition afflicting the Appellant, Denise Nesbitt, impairs her ability to perceive, think and remember to the extent that she is entitled to claim a disability tax credit under s.118.4 of the Income Tax Act (the "Act").

FACTS

[2]      Denise Nesbitt is a wife and the mother of two little girls. In 1992, a motor vehicle accident left her in a state of chronic pain for which she has yet to find any effective medical treatment. Briefly put, Ms. Nesbitt has a constant headache. It is through the filter of that headache that her life is lived.

[3]      Ms. Nesbitt has been under the care of her family doctor, Dr. Vassos, since September 1994. After exhausting all modes of treatment without success, Dr. Vassos sent her to the Rothbart Pain Clinic, a medical facility in Toronto specializing in chronic pain. The specialist's report confirmed Dr. Vassos' diagnosis that the pain Ms. Nesbitt was experiencing in her head, neck and lower back impaired her ability to concentrate and focus and that it had a negative effect on her short-term memory. Rothbart offered little hope of relief other than the possibility of specialized surgery to kill the nerves in her neck and lower back.

[4]      As required by the Act[1], Ms. Nesbitt filed a disability tax credit certificate with Canada Customs and Revenue Agency (CCRA). The certificate is CCRA's Form T2201. It contains a list of standard questions to be answered by the taxpayer's doctor by checking "yes" or "no" in the space provided. In response to whether his patient could "perceive, think and remember", Dr. Vassos checked the "no" box. Not satisfied with Dr. Vassos' replies in the certificate, CCRA sent Dr. Vassos another standard form CCRA document, a questionnaire requesting additional information about Ms. Nesbitt's condition. In the opening paragraph of the questionnaire, the following instructions appear:

... On the attached Form T2201, "Disability Tax Credit Certificate", you stated that since 1999 your patient's ability to " think, perceive and remember" has been markedly restricted. Please answer the following questions based on your professional opinion and knowledge of your patient's medical condition.

[5]      Dr. Vassos identified her medical condition as "chronic headache/pain" and stated that Ms. Nesbitt's "[activities of daily living] are restricted due to chronic headaches, she has her child in daycare due to this problem, the headache pain causes emotional lability and impairment of short-term memory".

[6]      After receiving this additional material, the Minister denied Ms. Nesbitt's claim for a disability tax credit.

ANALYSIS

[7]      To succeed, Ms. Nesbitt has the onus of bringing her situation within ss.118.3 and 118.4. These are very complicated provisions with many statutorily defined words and phrases:

118.3. (1) Where

(a)         an individual has a severe and prolonged ... 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...

...

(b)         the individual has filed for a taxation year with the Minister the certificate described in paragraph (a.2), and

...

118.4. (1) For the purposes of subsection ...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 ... the individual 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,

...

(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.

[8]      Paraphrasing the above and applying it to the facts at hand, Ms. Nesbitt must prove on a balance of probabilities that she has had a severe impairment for a continuous period of at least 12 months which renders her unable to perceive, think and remember all or substantially all of the time. The Minister's position is that Ms. Nesbitt has not met this onus. Although he admits that her chronic pain has persisted for at least 12 months, he states that she has not established that the effect of the chronic pain is to markedly restrict her ability to perceive, think and remember all or substantially all of the time.

[9]      In support of this contention, the Minister points to Dr. Vassos' testimony on cross-examination regarding the supplementary questionnaire information he had provided to CCRA. To each of the following questions, Dr. Vassos had checked the "yes" box:

• Was your patient oriented to the three spheres (person, place and time)?
• Did your patient understand the concept of danger?
• Could your patient go out in the community alone?
• Could your patient remember instructions or information given to her during appointments at your office?
• Could your patient perform her personal hygiene (without help or supervision)?
• Could your patient make a simple purchase independently?

[10]     The Minister argues that Dr. Vassos' answers to these questions are at odds with his initial conclusion in Form T2201 that Ms. Nesbitt is impaired in her ability to "perceive, think and remember". Accordingly, his original diagnosis cannot stand and Ms. Nesbitt's claim must fail. It is further argued that a "yes" answer to these questions proves that Ms. Nesbitt's ability to "perceive, think and remember" is not markedly restricted all or substantially all of the time.

[11]     Dealing with the latter point first, whether Ms. Nesbitt is impaired within the meaning of the Act is a question of fact based on all the circumstances of the case. Dr. Vassos' answers in the questionnaire form part of the fact-finding but are not in themselves determinative of whether Ms. Nesbitt can "perceive, think and remember". The questions that appear in the questionnaire are merely the Department's attempt to provide some guidance in assessing the degree of impairment; they are not conditions set out in the Act. They certainly do not operate to the exclusion of any other evidence of the patient's medical condition.

[12]     The questionnaire asks the responding physician to provide additional information "based on [his] professional opinion and knowledge of [his] patient's medical condition". It was on this basis, not as an exercise in statutory interpretation, that Dr. Vassos furnished details, to the extent permitted by the confines of a standard form document, regarding Ms. Nesbitt's condition.

[13]     Are his answers inconsistent with his responses in the T2201 certificate? In the questionnaire, Dr. Vassos named chronic headaches/pain as the impairment restricting Ms. Nesbitt's ability to perceive, think and remember: this is consistent with his answer on T2201. He went on to explain that "multiple analgesics" and other medication failed to improve Ms. Nesbitt's condition and that the severity of her functional limitations would not change without surgical intervention: this is consistent with his T2201 answer that her impairment was not likely to improve. Finally, his opinion that her "cognition is impaired (focus, concentration and short term memory)" is consistent with his original diagnosis that "chronic disability pain severe headaches that impair cognitive function". On cross-examination, he confirmed that his opinion had not changed regarding his responses to these questions. It is not for the Court to second guess the doctor's professional medical opinion; the task is to see whether his diagnosis falls within the ambit of the statute.

[14]     The Minister takes the position that it does not. He points to s. 118.4(1)(d) which expressly excludes working, housekeeping and social activities from the definition of "basic activities of daily living". For this reason, he argues that even if Ms. Nesbitt suffers an impairment, it does not markedly restrict a "basic activity of daily" living as defined by the Act.

[15]     That the Court ought to take a "humane and compassionate approach" in the interpretation of sections 118.3 and 118.4 as first suggested by Bowman, ACJ[2] has received the approval of the Federal Court of Canada[3]. This does not mean, however, that the Court can ignore the exclusionary language in s. 118.4(d) which states that "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."[Emphasis added.]

[16]     Ms. Nesbitt's evidence is that she's had to give up her job at the bank, she is now unable to look after the house and she and her husband no longer have any social life. S. 118.4(1)(d) is written disjunctively. If Ms. Nesbitt had based her claim for a disability tax credit just on her inability to work or to keep house or to socialize, the exclusionary provision would clearly operate to deny each of these claims. But that is not the basis of her case. It is her inability to "perceive, think and remember" as set out in s. 118.4(1)(c)(i) that has turned her life on its ear. Her evidence is that because of its over-arching effect, the pain she experiences impairs all aspects of her life. By necessity, this must include her ability to work, housekeep and socialize. But it also denies her the opportunity to be a mother. It prevents her from enjoying the solitary pleasure of reading a book or going for a walk. It deprives her of the innumerable cognitive skills that, while healthy, we take for granted but without which, we lose any meaningful connection to the world.

[17]     In Ms. Nesbitt's words: "It's not clear... it's foggy. I can't think to remember to do things. It's all the time - I have my headaches all the time". The Court is satisfied that there is sufficient evidence to conclude that Ms. Nesbitt's ability to perceive, think and remember has been impaired within the meaning of s. 118.4 so as to entitle her to claim a disability tax credit.

[18]     The appeal is therefore allowed.

Signed at Ottawa, Canada, this 30th day of December 2003.

"G. Sheridan"

Sheridan, J.

CITATION:

2003TCC942

COURT FILE NO.:

2003-863(IT)I

STYLE OF CAUSE:

Denise Rae Nesbitt and H.M.Q.

PLACE OF HEARING:

Saskatoon, Saskatchewan

DATE OF HEARING:

October 28, 2003

REASONS FOR JUDGMENT BY:

The Honourable Justice G. Sheridan

DATE OF JUDGMENT:

December 30, 2003

APPEARANCES:

Counsel for the Appellant:

Andrew Mason

Counsel for the Respondent:

Anne Jinnouchi

COUNSEL OF RECORD:

For the Appellant:

Name:

Andrew Mason

Firm:

Dufour Scott Phelps & Mason Saskatoon, Saskatchewan

For the Respondent:

Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada

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