Asperger's Syndrome

Difficulties initiating and responding to social interactions is a legal test for the DTC

In Jean-Christophe Benoit-Otis v. The Queen, the Appellant suffers from Asperger’s syndrome, a neurological disorder similar to autism.

The Appellant has a steady job as an assistant to a member of the Immigration and Refugee Board under a government equal access program for people with disabilities. However, much of the work is repetitive and routine and he is provided with assistance when overwhelmed tasks he is not familiar with. The Appellant also has a driver’s licence but takes public transportation to work.

The Appellant had recently moved into his own apartment but still relies on his parents for extensive support and guidance. Judge Lamarre Proulx noted in his ruling that the Appellant "required intermittent but lifelong supervision."

Judge Proulx also recognized that the defining effect of Asperger’s syndrome is the difficulty these individuals have with social relations even though they have higher than average intelligence and may be skilled in a number of other areas.

The current tax legislation defines a “mental function necessary for everyday life” as “adaptive functioning” that includes the following: “abilities related to self-care, health and safety, (and) abilities to initiate and respond to social interaction.”

Learning Disability

Supplementary questionnaire responses are not legal tests for DTC

In McDermid v. The Queen, Leslie McDermid's son was diagnosed with learning disabilities, requiring significant parental supervision for a broad range of activities, including the morning routine before school and social activities. He has also scored very low in written language skills and auditory working memory.

According to court records, the Minister of National Revenue denied the tax credit because "it relied in a large part on information given by the doctor in a supplementary questionnaire (clarification letter)… and concluded (the son's) mental functions were not severely impaired all or substantially all of the time."

Judge J.M. Woods allowed the DTC because the responses solicited by the questions did not accurately reflect the disabling impact of the mental impairment. For example, in the following question, the doctor is asked to choose between a, b and c:

"Which statement describes you patient's ability to perform the basic skills of daily living (e.g., managing personal hygiene, or playing with peers)?

  1. ___ is able to perform these skills at an age-appropriate level.
  2. ___ requires assistance or takes an inordinate amount of time to perform them, but ONLY with complex tasks (e.g., completing homework) during periods of exacerbation or in stressful situations.
  3. ___ requires continuous assistance or takes an inordinate amount of time to perform them all or substantially all of the time, 90% of the time.

The doctor checked b) to this question and similar ones in the form. When asked on cross-examination why she ticked this box, she testified that she had trouble with the form and assumed that c) applied only if the child is essentially unable to perform any basic activity of daily living.

Judge Woods concluded that the check-the-box format can give a misleading picture of the disability stating, "In my view, the Minister's reliance on this form was misplaced… answers to these types of questions (in the form) should be disregarded."

Severe intellectual limitations justify DTC

Without a doubt, one of the most important TCC cases dealing with the DTC is Radage v. The Queen. At the time of the trial, the claimant's son is 24 years old. Although he has a severe intellectual disability, with an I.Q. in the 70-84% range, he has a part-time job at a government sponsored sheltered workshop. He attended schools for children with special needs and graduated from grade 12 in accordance with the standards of that school. He can feed and dress himself without assistance. He can also be left alone, although he would be unable to do anything but the simplest cooking, generally heating up meals previously prepared by his mother. However, he is unable to manage money or day to day affairs. He is also impulsive, emotionally labile and lacks an appreciation of consequences.

Judge Donald G. H. Bowman noted that the claimant's son does not have a single, severe disability, but the cumulative sum of his handicaps denies him the privilege of being able to address most of the issues generally expected from an able adult. He explained that the severity of his mental impairment creates significant barriers to independent living, employment and social functioning:

"I have concluded that, on balance, his intellectual limitations are severe enough to justify the credit. It cannot be said that his capacity to think, perceive and remember is non-existent, but it is sufficiently limited to fall within the guidelines I have indicated above. In arriving at this conclusion I have endeavoured to put into the balance that which he can do and that which he cannot do. There are certainly things that he can do, but they are in my opinion outweighed by his severe intellectual limitations that render him incapable of performing such mental tasks as will enable him to function independently and with reasonable competence in everyday life."