http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/232845/index.do
Mullings v. The Queen (July 10, 2017 – 2017 TCC 133, Jorré J.).
Précis: The taxpayer’s youngest child, X, suffered from “classical phenylketonuria (“PKU”). PKU is a genetic disorder that eliminates or severely restricts the body’s ability to metabolize phenylalanine (“Phe”)” [para. 1]. Left untreated PKU can lead to brain damage. The taxpayer, who was very familiar with PKU since her first child also suffered from it (the older child was not a subject of the appeal), followed a very vigilant regimen to protect X’s health. The question before the Court was whether PKU fell within the definition of “mental or physical impairment” for the purposes of the disability tax credit (“DTC”). CRA held it did not and the taxpayer appealed to the Tax Court. The issue boiled down to whether the therapy for PKU “is required to be administered at least three times each week for a total duration averaging not less than 14 hours a week” for the purposes of the DTC within the meaning of subparagraph 118.3(1)(a.1)(ii) of the Income Tax Act (the “Act”). The Court held that, on the evidence, the PKU therapy met the 14 hour threshold and allowed the appeal. There was no order as to costs because this was an informal procedure appeal.
Decision: The sole issue to be determined was whether the therapy for PKU “is required to be administered at least three times each week for a total duration averaging not less than 14 hours a week” within the meaning of subparagraph 118.3(1)(a.1)(ii) of the Act. The Court found that the primary burden of providing therapy fell on the taxpayer since X was only 2 years old during the taxation year in question (2015):
[30] Generally X’s therapy takes away a limited amount of time from what the child would otherwise be doing because, given her age, she is unable to manage her own therapy. However, the Appellant, as X’s primary caregiver, is obliged to implement the therapy; this implementation is time consuming and includes the following:
– sourcing and storing medical formula and medical food;
– planning and preparing X’s meals and snacks including:
• weighing food so as to measure, calculate, and log the amount of Phe from all sources prepared for X’s consumption so as to ensure the correct amount of daily Phe consumption as well as
• measuring and logging the formula to ensure adequate consumption of all the other amino acids (apart from Phe) constituting protein;
– supervising X’s consumption of food so the amount of Phe actually consumed is monitored;
– if necessary, after a meal or snack, recalculating Phe consumption for the rest of the day and adjusting subsequent meals or snacks to take account of actual consumption (for example, if a food is not eaten or only partly eaten with the result that less food than planned was consumed, then it will be necessary to ensure more Phe is consumed by adding or substituting something; another example, where adjustments have to be made, is this: if, for instance, in spite of efforts to avoid this, X winds up eating some other child’s food it may be necessary to try to make an offsetting reduction in Phe consumption for the day);
– educating others, such as caregivers, teachers, classmates and other parents, regarding PKU so as to prevent consumption of more Phe than planned (for example, ice cream at a friend’s home);
– when picking up X from the care of others, finding out what medical formula and medical food and ordinary food was consumed — normally the Appellant will pick up any leftover meal or snack items so that they can be measured (weighed) and the amount of Phe consumed up to that point in the day can be recalculated for the purpose of making adjustments for the rest of the day;
– attending various medical appointments with different doctors and the dietitian;
– monitoring X’s Phe blood level through weekly blood tests to ensure that the prescribed Phe‑restricted diet is effective.
[31] In annex B, I have reproduced the full list of tasks contained in the time sheet the Appellant filed setting out her estimate of the time she spent to implement her child’s therapy. She estimated that in an average week she spent about 29 hours.
The Court accepted the evidence of the taxpayer and, in particular, found that certain activities described in annex B to the decision clearly exceeded 14 hours per week without having to inquire into the other activities described in that annex:
[42] Thus the time spent relating to the blood tests and to the administration of the formula can be counted as part of administering the therapy. This includes items 1, 2, 3, 4 and 23 listed in annex B. This totals an average of 531 minutes a week or somewhat less than nine hours a week.
…
[49] When one examines the time estimate of the Appellant for the different categories of activity, it is clear that the total time spent on activities that may properly be counted for the purpose of the 14‑hour test exceeds 14 hours. Specifically, items 5, 6, 10, 11, 14, 15, 16, 17, 19, 20 and 22 in annex B are clearly devoted to Phe measurement and the control of Phe consumed.
[50] This amounts to an average of 585 minutes a week or almost nine hours. When added to the 531 minutes above, that is an average of some 1,116 minutes or over 18 hours a week spent administering the therapy within the meaning of subsection 118.3(1.1).
[51] Given that the activities in annex B that I have just enumerated exceed an average of 14 hours, it is unnecessary for me to determine whether other activities listed in the annex do or do not qualify to enter into the computation of the 14‑hour a week average.
[Footnotes omitted]
As a result, the Court held that, on the evidence, the PKU therapy met the 14 hour threshold and allowed the appeal. There was no order as to costs because this was an informal procedure appeal.