Subsection 118.3(1) - Credit for mental or physical impairment
Cases
Attorney General of Canada v. Buchanan, 2002 DTC 7397, 2002 FCA 231
In the situation (such as the case at Bar) where a psychiatrist had made a legal error in giving a negative certificate, the question to be determined was whether, with the Judge applying the correct legal test, it was apparent that the physician would have issued a positive certificate, or whether there was still room for medical judgment to be exercised as to whether the certificate should be positive or negative. The former situation applied here, with the result that it was open to the Tax Court Judge to conclude (as she did) that the medical certificate was incorrectly completed and that, applying the correct legal test, the negative certificate should be treated as a positive one.
Partanen v. The Queen, 99 DTC 5436, Docket: A-112-98 (FCA)
The finding of the Tax Court that a certificate from a medical doctor was a prerequisite for obtaining the disability credit, and that the requirement for a medical certificate did not violate taxpayer's equality rights under section 15 of the Charter, was affirmed.
See Also
Pekofsky v. The Queen, 2014 DTC 1151 [at 3487], 2014 TCC 183
Lamarre J found that the Minister erred in finding that the taxpayer's daughter, although learning-disabled, was not markedly restricted in her ability to perform the activities of daily living. The psychologists' reports and other evidence all indicated that the daughter (para. 20):
...has problems not only with her learning activities at school but also with her daily activities, on account of her short-term memory impairment and her dysfunction with regard to the ability to use her judgment. The mother explained, amongst other things, that she constantly needs to supervise her daughter and that everything takes more time for her daughter to accomplish than is the case for other children of her age.
The taxpayer's disability tax credits were therefore allowed.
Walkowiak v. The Queen, 2013 DTC 1036 [at 170], 2012 TCC 453
Boyle J. denied the taxpayer's disability tax credit under s. 118.3(1) for ADHD and a DSM-IV Disability not otherwise specified, based on his finding that the taxpayer's difficulties were not severe enough to markedly restrict her ability to perform basic activities of daily living. She had difficulties in remembering tasks, expressing herself, finding solutions to problems, making appropriate judgments and organizing and executing plans. However, Boyle J. noted mitigating factors, including that:
- she had developed effective coping strategies, such as spending greater time on her studies and preparing sticky notes indicating things that needed doing;
- she was demonstrably up to raising her children, who had similar disorders, and she often took care of them independently; and
- she took prescribed medication that minimized the help she needed with everyday life situations.
McKenna v. The Queen, 2005 DTC 1410, 2005 TCC 599
The taxpayer unsuccessfully made a submission that it constituted discrimination contrary to s. 15(1) of the Charter for disability pension benefits that she received under the Canada Pension Plan Act to be included in her income without a credit being accorded to her under s. 118.3 of the Act.
Administrative Policy
27 March 2013 Folio S1-F1-C2
When a certification is being completed after the death of the eligible person with a disability, the disability tax credit will be available provided the certification is based on a prognosis, made by an appropriate medical practitioner before the person died, which concluded that the person's severe and prolonged impairment was reasonably expected to last for a continuous period of at least 12 months.
2 November 89 T.I. (April 90 Access Letter, ¶1180)
A taxpayer may claim both a credit under s. 118.3(1) and a deduction for full-time care under 118.2(2)(b) or (d) provided that they are being claimed for different mental or physical impairments.
Subsection 118.3(2) - Dependant having impairment
Administrative Policy
27 March 2013 Folio S1-F1-C2
[A] person is generally considered to be dependent on someone if the individual has actually supplied necessary maintenance, or the basic necessities of life (food, shelter and clothing) on a regular and consistent basis. Where the eligible person with a disability was in receipt of social assistance or any other type of financial or non-financial support, the supporting individual must be able to show that the other assistance was insufficient to fully meet the basic needs of the eligible person with a disability and that the person had to rely on the additional support provided by the supporting individual.