Sub-committee on the Status of
Persons with Disabilities
by Lembi Buchanan
November 27, 2001
Thank you, Chair, Dr. Bennett and members of the Sub-Committee on
the Status of Person with Disabilities for recognizing the urgency
for a full review of the current DTC Certificate T2201 that affects
hundreds of individuals with mental illnesses in our country who
are being treated unjustly.
I will be following the
progress of this submission throughout the parliamentary process
until the issues brought forward today are resolved.
Are these individuals
less deserving than people with physical disabilities?
Not according to the Tax Act.
Mental illness is one
of the least understood and least accepted of all illnesses. Individuals
with mental illnesses remain among the most vulnerable members of
our society. Unlike individuals with physical disabilities, they
do not have the intellectual capacity or the mental stamina to pursue
their causes. For many people, and their families, these illnesses
are a source of shame and embarrassment. As a result they are unwilling
to stand up for their rights or to protest when an injustice has
been done to them.
That is why I am here
In recent years, it has
become virtually impossible for anyone with a serious mental illness
to qualify for the DTC without appealing the decision by the CCRA
to the Tax Court of Canada. Even for people who have qualified previously
for the benefit.
Questions requiring a
simple “yes” or “no” answer trivializes
the complexities of a serious mental illness such as bipolar disorder
The question, “Can
your patient think, perceive and remember” essentially excludes
all individuals with severe and prolonged mental illnesses because
they can still think, perceive and remember although their thought
patterns may be dysfunctional, erratic, bizarre or confused.
Such discrimination is
Such discrimination is
a poor reflection of our society’s values.
My husband who suffers
from bipolar disorder (also known as manic depressive illness) was
first diagnosed in February 1973 after he was discovered on the
roof of St. Patrick’s Cathedral, only partially clothed in
frigid weather waiting for a helicopter to take him directly to
God. He has not always been disabled by this medical illness caused
by a biochemical disorder in the brain. For almost 20 years, he
managed to lead a relatively normal, productive life because of
a new “wonder drug” called lithium carbonate, which
is nothing more than a common salt.
In December 1990, my husband suffered a major setback and never
fully recovered. At the time, he was working as a public relations
officer for a major mining company. This time, he actually believed
that he was God and that it was within his power alone to cure me
of cancer. He had to be committed to the psychiatric ward because
he was considered to be a danger not only to himself but others.
Since then, he has been unable to work in any capacity. There is
not a moment in the day or night that he is not held hostage by
an illness that can have devastating consequences not only for him
but the rest of his family. The roller coaster ride can begin at
any time, set off by a manic high with grandiose delusions and ultimately
plummeting into the depths of a debilitating depression.
For years, my husband
and so many others with serious mental illnesses qualified for the
tax credit. And now they are being rejected.
Why is this happening?
The Tax Act hasn’t
changed. The eligibility criteria haven’t changed. It is the
same diagnosis and prognosis. It is even the same doctor filling
out the form. Only the form has changed.
I believe that the government
bureaucrats and politicians do not always perceive mental impairments
to be as severe as physical impairments.
The Minister of Finance
wrote in a letter addressed to me on September 13, 1999: “The
DTC provides tax assistance for individuals that are severely impaired
in a basic activity of daily living such as walking, feeding and
dressing oneself which would indicate a much more severe disability.”
Than my husband? Mr. Martin neglected to mention that one of the
“basic activities of daily living” is “thinking,
And why does government
want to exclude individuals with mental illnesses?
It’s costing too
Once again, Paul Martin
explains: “If eligibility for the DTC were broadened to include
situations as you have described as well as persons with severe
disabilities, the federal cost would be much greater than the current
Are these individuals
Judge Diane Campbell
of the Tax Court of Canada didn’t think so when she ruled
in favour of my husband in James Buchanan v. the Queen. She said,
“It is an obvious case…”
With due respect to Mr.
Martin, the main problem facing government officials is the lack
of understanding of the disabling impacts of a server and prolonged
There is no question
that setting appropriate parameters or thresholds for mental impairments
is a more complicated process than for physical impairments but
only for someone who does not have the medical knowledge to do so.
Instead of consulting with health professionals, the federal government
has arbitrarily decided that mental functions can be measured in
the same manner as physical disabilities. As far as the government
is concerned, the functions of thinking, perceiving and remembering
can be measured on a scale of 1 to 100. One of the questions in
a supplementary form sent to doctors for clarification asks the
following. “During the year, what percentage of time is your
patient unable to think, perceive and remember?”
The question defies common
sense. As far as I know, there is no piece of technological equipment
that can provide such a measurement, unless the individual is brain
dead. Any other answer is pure speculation by the doctor.
Furthermore, CCRA officials
have ignored case law from previous appeals in the Tax Court of
Canada that provide significant guidelines in the determination
of whether or not an individual’s specific disability falls
within the eligibility criteria.
In Radage v. The Queen
1996, Tax Court Judge Donald Bowman suggested that the legislators,
when drafting the Tax Act referred to the basic activity of daily
living, that is thinking, perceiving and remembering, “in
a manner that conforms to common human experience.” Judge
Bowman explored the meaning of each word in depth and concluded
that Taavi Radage, at 24 years of age, was markedly restricted in
his ability to think, perceive and remember because of his intellectual
limitations even though he was in a work placement program and earning
$60 per week.
In Buchanan v. The Queen
2000, Judge Diane Campbell ruled in favour of the Appellant, quoting
extensively from the Radage case. “Although the Appellant
is certainly able to operate adequately in some areas, his impairment
permeates his entire existence. The facts that support that while
engaged in some seemingly rational activity to an outsider, all
other though processes are otherwise exploding in an array or erratic,
bizarre and potentially harmful activities. However, the Appellant’s
ability to perceive, think and remember, although non-existent,
is of such severity that his entire life is affected to such a degree
that is unable to perform the necessary mental tasks required to
live and function independently and competently in everyday life…
the Appellant’s condition and resulting behaviour so far exceeds
the normal and reasonable ambit that he comes within the otherwise
very narrow confines of these sections of the Act.”
CCRA not only ignores
the wisdom of the Tax Court Judges but also the provisions of the
Canadian Charter of Rights and Freedoms.
The Supreme Court of
Canada has recognized the distinct disadvantage and negative stereotyping
faced by persons with mental disabilities and has held that discrimination
against individuals with mental disabilities is unlawful.
In fact, the Charter
does not allow lesser benefits to individuals with mental impairments
than to individuals with physical impairments.
When Supreme Court Justice
J. Sopinka delivered the judgment in Battlefords and District Co-operative
Limited v. Gibbs, he stated the following: “One of the reasons
such legislation (referring to human rights legislation) has been
so described is that it is often the final refuge of the disadvantaged
and disenfranchised… the last protection of the most vulnerable
member of society.”
All employees were covered
by a disability insurance plan until 65 as long as they were disabled.
However, Betty Lu Gibbs had her disability benefits cut back after
two years because she suffered from a mental disorder. The Court
ruled that she was discriminated against by her employer.
The consequences of the
changes to the DTC form, whether intentional or not, is that the
tax credit has been cut back for individual with serious mental
illnesses. Even though they may have qualified previously for the
tax credit like my husband, and so many others with serious mental
illnesses, they no longer qualify. They are being discriminated
against in much the same manner as Mary Lu Gibbs.
As far as Judge Campbell
was concerned, in her ruling for James Buchanan v. The Queen 2000,
my husband’s psychiatrist misinterpreted the Tax Act when
completing the DTC Certificate for his patient. But that is hardly
surprising because the question regarding mental functions is incorrect,
incomplete and ambiguous. “From the facts and the evidence,
it is clear, in answering the questions on the form, he (Dr. Cooke)
clearly held the incorrect view that most individuals with mental
impairments did not qualify for the credit and that it was intended
instead for those (as he wrote in his correspondence to the Appellant
) who had difficulty ‘feeding themselves, dressing, using
the toilet or carrying on a simple conversation.’ He clearly
did not understand that the six items defining a basic activity
of daily living, as contained in subsection 118.4 (1) (c), are not
to be read together, but each activity is treated separately.”
A number of judges have
also criticized the form.
Judge Bowman stated in
his ruling in Morrison v. Her Majesty the Queen: “It is clear
that Parliament should reconsider the wording that led the Federal
Court of Appeal to the decision it reached…Having heard dozens
of these cases, I have found that such certificates are often unreliable,
contradictory or confusing... Section 118.3 is an important section
and it means a great deal to many small taxpayers…The result
of the decision of the Federal Court of Appeal is that severely
disabled people have no recourse when a doctor or his secretary
ticks the wrong box, whether negligently or deliberately, or refused
to sign a certificate.”
We cannot condone a government
department that has abandoned its responsibility to the most vulnerable
members of our society by creating a form. The fact that the assessment
process of the mental disorder may be perceived by CCRA officials
to be more difficult than a physical disability is no excuse.
We expect our government
to be fiscally responsible. But it is unconscionable when cost-saving
measures are carried out by targeting our most vulnerable members
Surely, as a society,
we can do better.
I am asking that a new
DTC Certificate is drawn up that provides the medical profession
an opportunity to make a fair assessment of their patients based
on their medical knowledge and the disabling impact of the illness.