TAX COURT OF CANADA

BETWEEN:

                                                          ____________APPELLANT

                                                                      - and -

                                                  HER MAJESTY THE QUEEN                                                      

RESPONDENT

            NOTICE OF APPEAL

                                                   PART I - INTRODUCTION  

1.                  XXXXXX (hereinafter the "Appellant"), is an individual residing at or near XXXXXXXXXXXXXX,XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXX, and whose mailing address is XXXXXXXXXX

2.                  The Appellant appeals to the Tax Court of Canada in respect of a reassessment by the Minister of National Revenue (the "Minister") of the Appellant's 2001 taxation year (the "Subject Taxation Year") under the Income Tax Act, R.S.C. 1985 (5^th Supp.) c. 1, as amended (the "Act") as set forth in a Notice of Assessment dated November 4, 2002 (the "Assessment").

3.                  The Appellant elects to have the Informal Procedure, provided by sections 18.1 to 18.28 of the Tax Court of Canada Act, applied to this appeal.

                                                            PART II - FACTS

4.                  The Appellant states that the following sets forth the material facts relied upon for the purposes of the present appeal:

(a)                   The Appellant is an individual, resident in XXXXXXXXXXXXXXX  XXXXXXX XXXXXXXX XXXXXXXXXXXX  XXXXXXXX XX XXXXXXXXXXXX

(b)                   The Appellant is the father of XXXXXXXXXXXXXXXX, whose date of birth is XXXXXX, XXXX;

(c)                   XXXXXXXXXXX was diagnosed with Type I (sometimes called Juvenile) Diabetes in 1992 and she/he has been insulin-dependant since that time.  

(d)                   Type1 Diabetes is a disease and there is currently no cure other than transplantation, a choice not offered to children or most adults. Insulin injection is the only therapy that reduces the effects and the mortality rate associated with the disease;  

(e)                   As with all types of diabetes, the metabolism of carbohydrates (including sugars such as glucose), proteins and fats is altered;  

(f)                     In Type I Diabetes, the beta cells no longer produce insulin.  Insulin is required to allow glucose to enter blood cells to be used as fuel;   

(g)                   Without insulin and monitoring of XXXXX XXXXXXX blood sugars and the assessment of trends and adjustments in her/his insulin dosages, XXXXX will suffer hypoglycemia caused by too much insulin in her system and hyperglycemia caused by too little insulin in her system;

(h)                   Without adequate insulin, glucose builds up in the bloodstream instead of going into the cells causing hyperglycemia;

(i)                     When suffering from hyperglycemia the body is unable to use this glucose for energy, despite high levels in the bloodstream, leading to increased hunger;  

(j)                     With hyperglycemia, the high levels of glucose in the diabetic's blood causes the diabetic to urinate more which, in turn, causes excessive thirst;  

(k)                   When XXXXX XXXXX has hyperglycemia, it means she/he does not have enough insulin in her/his body and this can result in her/him being very thirsty, tired, have blurred vision, frequent urination and nausea;  

(l)                     Hyperglycemia increases the risk for all types of strokes  

(m)                 Without intervention and treatment for hyperglycemia caused by too little, or no insulin, XXXXX XXXXX can develop Diabetic ketoacidosis, a life-threatening complication of hyperglycemia;

(n)                   Diabetic ketoacidosis, if untreated, is fatal;  

(o)                   With too much insulin in her/his body, XXXXX XXXXXXX blood glucose gets too low causing her/him to suffer from hypoglycemia.  

(p)                   When suffering from hypoglycemia, low levels of glucose in the body caused by too much insulin, the body does not have the energy required to function properly;   

(q)                   When XXXXX XXXXX suffers from mild – moderate hypoglycemia, or low blood sugar values, she/he feels weak, confused, irritable, hungry and tired;  

(r)                    Without intervention and/or treatment for hypoglycemia XXXXX XXXXX can develop severe hypoglycemia;   

(s)                    Severe hypoglycemia can cause unconsciousness, coma or convulsions;  

(t)                     In order to markedly reduce the frequency of hypoglycemic and hyperglycemic episodes XXXXX has suffered since developing Type 1 diabetes at the age of X  XXXXXXXXXXX began insulin pump therapy in 1999.  This therapy involves the use of an insulin infusion pump (“Infusion Pump Therapy” or “IPT”).  She/He wears the insulin infusion pump seven days a week for more than 23 hours a day;

(u)                   Insulin Pump therapy uses only rapid acting insulin;  

(v)                   Insulin Pump Therapy does not use cloudy insulin (NPH) which has drastically reduced the frequency of low to moderate hypoglycemic episodes that XXXXX suffered and to this date has prevented the onset of severe hypoglycemic episodes  

(w)                 XXXXX XXXXX has been using Insulin Pump Therapy since March of 1999;  

(x)                   The use of Insulin Pump Therapy has alleviated XXXXX XXXXXXX impairment caused by the frequency of hypoglycemic and hyperglycemic events while he/she was on multiple daily injection of multiple insulins.  While undergoing insulin pump therapy XXXXX is not markedly restricted in her/his ability to perform basic activities of daily living;  

(y)                   The use of the insulin infusion pump, accompanied by frequent monitoring of blood glucose values provides the data required to read trends and make proper adjustments in insulin requirements;   

(z)                    The use of Insulin Pump Therapy has given XXXXX XXXXX the ability to maintain healthier blood glucose levels leading to better physical health;  

(aa)                The use of Insulin Pump therapy has given XXXXX XXXXX more control over her disease alleviating the sense of hopelessness and helplessness;  

(bb)               The insulin infusion pump (Insulin Pump Therapy) is attached to XXXXX XXXXXXX body by a length of tubing through which the insulin is delivered from the pump and into an infusion set;  

(cc)                An infusion set consists of the tubing which runs from the reservoir of insulin in the insulin pump, an introducer needle which inserts a cannula under the skin and tape to keep it in place (much like an IV);  

(dd)               A cannula is flexible Teflon tubing, approx 6mm long, which lies under the skin and disperses the insulin which is ‘pumped’ through the tubing which runs from the insulin reservoir contained in the insulin infusion pump.  It has to be replaced and moved every 3-4 days;  

(ee)                The insulin infusion pump is a medical device which requires the user to enter pertinent information about the users needs;  This requires that the insulin infusion pump is regulated and set each day;

(ff)                   The insulin infusion pump requires maintenance and is battery operated;  

(gg)                Requires knowledge of its technical aspects and supplies which are necessary to use it properly;  

(hh)                Requires knowledge and attention to the insulin requirements of the person with diabetes, which can change daily according to age, growth, illness, activity, stress, and other physiological and environmental effects.  

(ii)                    Insulin Pump Therapy is used to deliver insulin, subcutaneously, for three different reasons.  Basal or background insulin, bolus insulin to cover carbohydrates which are ingested and correction doses to reduce high levels of glucose in the blood (hyperglycemia);

(jj)                   Insulin Pump Therapy provides a system where XXXXX XXXXX receives minute  doses of insulin automatically throughout the day to mimic what a healthy pancreas would provide if she were not diabetic.  This is called basal insulin and her basal requirements can change depending on growth, illness, activity, stress, and other physiological and environmental factors;  

(kk)               The amount of basal insulin required for XXXXX XXXXXX background insulin needs over a 24 hour period is manually entered into the insulin infusion pump and unless it is manually changed, will be delivered automatically on a continual 24 hour basis.   

(ll)                    Presently XXXXX XXXXX automatically receives minute doses of basal insulin approximately every 4 minutes resulting in approximately 360 doses of basal insulin over a 24 hour period;  

(mm)            Insulin Pump Therapy provides a system where XXXXX XXXXX can receive insulin for carbohydrates she consumes during the day.  This is called bolus insulin.  Each time XXXXX XXXXX ingests carbohydrates she/he must manually enter, into the insulin pump, the amount of insulin the insulin pump must give her to convert the carbohydrates to glucose which is used as fuel by her blood cells.  The requirements for each dose of bolus insulin varies depending on the amount of carbohydrates, the time of day, type of food, illness, activity, stress and other physiological and environmental factors;  

(nn)                Presently XXXXX XXXXX receives, on the average, 10 bolus doses of insulin a day to convert carbohydrates to fuel each time she/he eats and drinks;

(oo)               Infusion Pump Therapy provides a system whereby XXXXX XXXXX can correct a high blood glucose reading by giving her/himself a correction dose.  The amount of insulin required for a correction dose is arrived at by factoring in the glucose level and XXXXX XXXXXXX insulin sensitivity factor which is determined by her/his diabetes healthcare team..  This amount is then manually entered into her insulin pump for delivery.  

(pp)               Presently, on average,  XXXXX XXXXX requires 0-3 correction doses a day to maintain tight glucose control;  

(qq)               Form T2201E(01) was filled out and certified by Dr. XXXXXXXXX XXXXXXXX on ___________;  

(rr)                  Dr. XXXXXXXX certified that the use of insulin pump therapy was life-sustaining therapy;

(ss)                 For the Subject Taxation Year the Appellant claimed the Disability Tax Credit with respect to XXXXX XXXXXXX impairment;  

(tt)                   By Notice of Assessment dated ______________, the Minister disallowed the Appellant's Disability Tax Credit claim;

(uu)                On or about ___________________, the Appellant duly filed a Notice of Objection with respect to the subject taxation year within the time prescribed by subsection 165(1) of the Income Tax Act;  

(vv)                By way of letter dated ____________, the Minister issued a Notice of Confirmation with respect to the disallowance of the Appellant's claim for the Disability Tax Credit in respect to XXXXX XXXXX, his dependant;  

(ww)            The Appellant appeals to the Tax Court in response to the Minister's Notice of Confirmation and the Notice of Assessment dated ____________;  

(xx)                The Appellant filed his ______ Tax Return and did not claim the Disability Tax Credit in respect to XXXXX XXXXXXX disability as he was advised by representatives of the Minister on the basis that the claim had been disallowed for the subject taxation year.

                                                          PART III - ISSUES  

5.                  The Minister erred in disallowing the Disability Tax Credit claimed with respect to the Appellant’s dependant’s impairment for the Subject Taxation Year.

                                         PART IV - STATUTORY PROVISIONS

6.                  The Appellant relies upon the following statutory provisions:

(a)                   Subsection 118.3 and, more specifically, 118.3(1)(a.1) of the Act; and  

(b)                   Such other statutory provisions as the Appellant may advise.  

PART V - GROUNDS FOR APPEAL  

7.                  The Appellant intends to rely upon the following reasons for the purposes of the present appeal:  

(a)                   The Appellant submits that the claim for the Disability Tax Credit with respect to his dependant's impairment is correct;  

(b)                   The Appellant claims under provision of the Act in force for the year 2000 and subsequent on the basis that, in the absence of insulin therapy, his daughter's basic activities of daily living would be markedly restricted;  In fact, his daughter would die;  

(c)                   That the use of Insulin Pump Therapy is therapy within the meaning of the Act;

d)                   That Insulin Pump Therapy is essential for sustaining vital functions of XXXXX XXXXX.  Namely, the therapy when used properly, drastically reduces her chances of  severe hypoglycemia  and diabetic ketoacidosis;

(e)                   Insulin Pump Therapy requires that the mechanism be physically attached to XXXXX XXXXX for almost 24 hours a day, seven days a week and that, while attached to XXXXX XXXXX, it automatically administers .1 units of basal (background) insulin every 4 minutes equaling  ± 360 injections of insulin continuously over each 24 hour  period.  

(f)                     Insulin Pump Therapy requires that the mechanism be physically attached to XXXXX XXXXX when she/he delivers a bolus dose of insulin to cover any carbohydrates she ingests during the day.  This amount of insulin required is manually entered into the pump by pushing the buttons.  The pump then delivers the required insulin over a period of time  

(g)                   Insulin Pump Therapy requires that the mechanism be physically attached to XXXXX XXXXX when she requires a correction bolus of insulin in order to lower blood glucose levels when they are out of acceptable range.  

(h)                   The use of Insulin Pump Therapy cannot reasonably be expected to be of significant benefit to a person without Type I or Type II Diabetes; and  

(i)                     Such other grounds as the Appellant may advise and this Honourable Court may allow.

                                                 PART VI - RELIEF SOUGHT

8.                  The Appellant seeks the following relief from this Honourable Court:  

(a)                   that the Notice of Assessment for the Subject Taxation Year be referred back to the Minister for further reassessment on the basis that:  

A.             The Appellant is entitled to claim the Disability Tax Credit pursuant to subsection 118.3 of the Act with respect to the Appellant's dependant, XXXXX XXXX XXXXX; and  

B.              Such further and other relief as this Honourable Court may allow, including the costs of the Appeal.  

9.                  The Appellant requests that this appeal be heard in XXXXXXX XXXXXXXXXXXXX