[OFFICIAL ENGLISH TRANSLATION] __________________________________________________________________
Appeal heard on November 4, 2004, at Roberval, Quebec.
____________________________________________________________________
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 2001 taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 6th day of December 2004.
Tardif J.
Translation certified true on this 3rd day of March 2005
Jacques Deschênes, Translator
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Tardif J.
[1] This appeal pertains to the 2001 taxation year. The issue is whether the Minister of National Revenue properly disallowed a disability credit claimed by the appellant.
[2] The appellant represented himself, and expressed himself with great ease. He explained all the reasons that led him to appeal the assessment.
[3] The fact that the appellant suffered from a significant disability is not in doubt because the Régie des Rentes du Québec recognized his permanent total disability and he is receiving a disability pension.
[4] However, he has managed to function well even though he must take a significant amount of medication. He lives alone and independently in his apartment. He has no automobile, but he does have a driver's licence on which the only restriction is a requirement to wear corrective glasses.
[5] He explained that on some days, intense back pain, which requires him to take anti-inflammatories, made it difficult for him to begin activities. He is also on antidepressants and medication for high blood pressure.
[6] Based merely on seeing the appellant at the hearing, it is clear that he was not eligible for the credit in question at the time. However, the credit claimed is for the taxation year 2001, not the current year.
[7] In support of his claim for the credit, the appellant had to produce a medical assessment by his physician, but the answers that the physician provided to the questions confirm that the appellant was not entitled to the credit. I reproduce here the questions and the answers obtained:
[TRANSLATION]
. . .
Can your patient see? Yes.
Can your patient walk? Yes.
Can your patient speak? Yes.
Can your patient perceive, think and remember? Yes.
Can your patient hear? Yes.
Can your patient feed or dress himself or herself? Yes.
Can your patient personally manage bowel and bladder functions? Yes.
. . .
Does your patient meet these conditions for life-sustaining therapy? No.
[8] Dr. Jacqueline Lacasse also answered the questions addressed to her by the Canada Customs and Revenue Agency on August 9, 2002. The questions and answers were as follows:
[TRANSLATION]
. . .
Was your patient oriented to the three spheres (person, place, and time)? Yes.
Did your patient understand the concept of danger? Yes.
. . .
Was your patient able to retain instructions/information conveyed to him/her during appointments at your office? Yes.
Was your patient able to perform his/her personal hygiene (without assistance or supervision)? Yes.
. . .
Did your patient's mental impairment restrict his/her ability to live independently? No.
Could your patient make a simple purchase independently? Yes.
. . .
Did your patient require medication and/or therapy? No.
Was your patient's ability to think, perceive and remember improved with medication and therapy? Please explain: Does not require medication [illegible word]
Do you expect the severity of your patient's functional limitations will change? No.
. . .
[9] Sections 118.3 and 118.4 of the Income Tax Act read as follows:
. . .
[10] In MacIsaacc. Canada, [1999] F.C.J. No. 1898 (QL), Sexton J.A. stated as follows:
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.
[11] Although it is not easy to answer the questions generally raised by the form, the answers have a decisive effect on eligibility for the disability tax credit. In the instant case, it has been made patently clear that the appellant did not meet the eligibility criteria for the credit. In fact, the answers provided by his primary care physician are consistent with what the Court observed at the hearing.
[12] For the period in issue, namely the 2001 taxation year, the preponderance of the evidence, both from the appellant's testimony and from the opinion of his primary care physician, discloses that the appellant was an independent and able to look after himself. He had to take several medications, but he was functional. He had, at all times, had the physical and mental abilities needed to carry out all the basic activities of daily living without requiring an inordinate amount of time, as contemplated in the provisions of the Income Tax Act:
[13] Consequently, the appeal must be dismissed.
Signed at Ottawa, Canada, this 6th day of December 2004.
Tardif J. Translation certified true on this 3rd day of March 2005
Jacques Deschênes, Translator
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SOURCE: http://decision.tcc-cci.gc.ca/en/2004/html/2004tcc752.html | Generated on 2005-04-03 |