St-Onge J.T.C.C.: — The appeal of Lynn Smith was heard on the 27th of September 1995 in the City of Vancouver, B.C., and the issue is whether the appellant can claim the disability tax credit for her son in her ’93 taxation year. In reassessing the appellant the Minister made the following assumptions of fact:
7. In so reassessing the Appellant, the Minister made the following assumptions of fact:
(a) the Appellant’s son, Matthew, was diagnosed with Attention Defecit disorder (“impairment”) in 1989;
(b) the impairment did not cause the Appellant’s son, Matthew, to be makedly restricted in the basic activities of daily living;
(c) the impairment did not last for a continuous period of at least 12 months; and
(d) the Appellant’s son, Matthew, wqas not suffering from a severe and prolonged mental or physical impairment.
At the hearing the appellant admits subparagraph 7(a):
(a) the Appellant’s son, Matthew, was diagnosed with Attention Deficit disorder (“impairment”) in 1989.
And denies the others.
The appellant testified that her son had an attention deficit disorder; that he does have problem with perception, and remembering; that the main things is his thinking at school continue to drop.
But all this does not affect his basic activity of daily living.
Upon cross-examination she explained that she is on full time, from 9:00 to 5:00, a day in her occupation; that her son went to St. Michael, regular school, in 1993 and was in grade 5 at the age of 10 years old; that she would wake up at 7:00 and her son at 8:00 to be back at 9:00; that he takes the bus every day for a distance that lasts between 10 to 15 minutes from her home; that at the end of school she goes by bus to the grandparents to get him back every day; every day he brings his lunch for the noon hour; he plays hockey with children of his age.
Dr. Sutherland, a family physician, and expert witness to deal with this type of case for Revenue Canada, testified that she is mandated as employee of a group to look to the information received to know if a person is able to do the basic activities of daily living.
She did study the file and, according to the information received from doctors, the appellant’s son had shorter attention at school; could perceive, think, and remember; he could get the bus and feed himself at school; he had a very good IQ, better than 87 per cent of the children of his age, and was capable of good learning.
She explained that the test to get a deduction for disability tax credit is not about what people are doing at school, but to know if people are well enough to do the basic activities of daily living. According to her in 1993 the appellant’s son was able to think, to remember, to play hockey and, above all, to do all the basic activities of daily living.
Counsel for the respondent argued that the appellant’s son was not markedly restricted in his basic activities of daily living; that he was able to perceive, to think and to remember, that according to the evidence this life-type was normal. His intelligence test was very good and his trouble at school doesn’t mean that he was not able to do the basic activity of daily living.
The evidence adduced by the mother did not convince the court that her son, Mathew, was markedly restricted in the basic activities of daily living. The court prefer to rest on the report of the expert witness of the respondent, Dr. Sutherland, the conclusion of which reads as follows:
Matthew Smith is an eleven year old boy who is diagnosed as having an attention deficit disorder without hyperactivity. Matthew Smith has an intelligent quotient at a level equal to or better than approximately 87 % of children at the same age. He is able to see, hear, and talk. He can dress himself, feed himself, walk and manage his personal hygiene without supervision. In 1991 his psychological test revealed Matthew had a tendency to be slightly distractible but has no significant evidence of a serious learning disability.
His mother indicates that Matthew has trouble controlling his temper and takes longer to complete assignments than most children in his class. In 1989 he took ritalin but is not on this medication now. There is no medical evidence on file to indicate that Matthew Smith was continuously markedly restricted in his basic activities of daily living throughout the tax years involved.
Because of the evidence adduced and the report of the expert witness the court is convinced that Mathew is completely autonomous. Consequently, the appellant is not entitled to a disability tax credit pursuant to section 118.4 and paragraph 118.3(i) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (the “Act”), and the appeal is dismissed.
Appeal dismissed.