In this case, Justice Miller thought that Ms. Wiley was not entitled to the tax credit because the woman's physician gave a "negative medical certificate." That means the physician said that the woman's ability to dress was not markedly restricted nearly all the time. In her affidavit, the physician explained what she wrote in her medical certificate:
“'Annette Wiley takes an inordinate amount of time to dress herself at times, but is able to dress herself without being markedly restricted between these periods. In other words, Ms. Wiley sometimes takes an inordinate amount of time to dress herself due to pain.'” (Para. 12)
Based on this "negative certificate", Justice Miller looked at the Federal Court of Appeal decisions on this topic and concluded that she had to dismiss the appeal. But the cases the judge referred to seem to say that she could have allowed the appeal, at least by giving Ms. Wiley a chance to correct the certificate.
Miller J. noted that the FCA said that "dressing oneself includes the ability to perform basic and elementary personal hygiene associated with it, such as shaving and bathing." (Para. 15, citing Johnston v. Canada, 1998 CanLII 7435 (FCA) at para. 37.) Ms. Wiley had some evidence that her bathing was restricted too. So, the Judge said:
"If that definition [including bathing in the meaning of "dressing"] had been included in the certificate, I question whether Dr. Arthur’s response would have been the same. There was evidence from both the Appellant and her daughter that the Appellant took a long time to bathe and/or shower and she needed help with bathing." (Para. 15)
Despite believing that Ms. Wiley might have been able to get a "positive certificate" from her physician, if the definition of "dressing" were better explained, Miller J said she could do nothing to help Ms. Wiley because of the FCA's decision in Buchanan v R, 2002 FCA 231 at paragraph 19. (Para. 16.) But Justice Rothstein, who wrote the decision in Buchanan and who is now a member of the SCC said there were ways a judge could help in this case.
In Buchanan, Rothstein JA said that if a judge thinks that the physician gave a negative certificate because he misunderstood the law, then the Tax Court judge should "remit the matter to the Minister with a direction to reassess on the basis of a positive certificate." (Buchanan at 21.) And "if the Tax Court Judge was doubtful as to the correctness of the negative certificate, at most, the recourse would be to remit the matter to the Minister for reassessment on the basis that the taxpayer file a new positive certificate, if one could be obtained." (Buchanan at 22, also 23.)
So, that option was open to Justice Miller. Being uncertain whether the negative certificate was right, because the physician might have been misled about the meaning of "dressing", Justice Miller could have referred the case back to the CRA to give Ms. Wiley a chance to get a positive certificate.
See Wiley v. The Queen, 2013 TCC (VA Miller)