3 October 1995 Internal T.I. 9524756 - "INORDINATE AMOUNT OF TIME" MEANING

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the Department.

Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle du ministère.

Principal Issues:

meaning of "inordinate amount of time" for purposes of the credit for mental or physical impairment

Position:

means something longer than usual or longer than the average person would take to perform the task. Phrase must be read in its entire context ("...the individual is blind or is unable (or requires an inordinate amount of time) to..."). Evident that the period of time being referred to is a time so excessive or so great that were it not for the necessity of performing the basic activity it might not otherwise be undertaken.

Reasons:

"modern rule" for the construction of statutes

									October 3, 1995

	Client Assistance					HEADQUARTERS
	Ministerial Correspondence Section		Sandra Short
	Cumberland Bldg - Rm 8000			(613) 957-8953

									952475

Subsections 118.3(1) and 118.4(1): Meaning of "markedly restricted" and "inordinate amount of time"

This is in reply to your memorandum of September 18, 1995 which queries whether a recent informal decision by the Tax Court of Canada (Edward Ray Conner v. Her Majesty the Queen, 95 DTC 198) impacts whether XXXXXXXXXX a client, is entitled to the credit for mental or physical impairment. You enclosed with your query a copy of the July 1995 edition of CGA Magazine in which, in discussing the Conner decision, it was the opinion of the contributor that the Department tends to interpret the provisions for the credit in "very narrow terms".

Mr. Conner, suffering from chronic back pain, required one half hour or more to dress and, when walking, had to stop and rest after every 100 metres or so. He appealed to the Tax Court of Canada when the Department disallowed his claim for the mental or physical impairment tax credit. Mr. Conner's appeal was allowed. In finding for the appellant, T.C.C.J. Sobier applied what he termed the "common-sense everyday use of" the phrase "inordinate amount of time" which he quoted as meaning "excessive", "longer than usual" when compared with normal people. He found that it took Mr. Conner "more time than, say, a normal person to do the same tasks such as dressing and walking".

As discussed in our telephone conversation of September 27 (Emberley/Short), we have been unable to view and consider the reasons for not appealing this adverse decision. We understand that you are currently attempting to charge out the applicable correspondence in this regard and that you have already initiated contact with the Department of Justice. We, therefore, will limit our comments to the case involving XXXXXXXXXX and make our general comments relating to our interpretation of "an inordinate amount of time".

XXXXXXXXXX wrote our Minister on August 30 of this year because he is concerned that he will not qualify for the credit for mental or physical impairment. He writes that he is permanently disabled, having had polio as an infant. As attested to by his physician, he is paralysed in his right leg and requires a full leg brace to walk. He indicates being able to walk 50 metres on level ground when wearing his brace but being unable to climb 5 flights of stairs. He describes a walk to his local corner store or other location on a warm summer day as causing him "severe difficulties" because of chafing which may cause boils and infections serious enough that he cannot walk at all for a day or two. He summarizes by stating that he may be able to walk 50 metres with relative ease on any given day but on other days he cannot walk at all. He believes that many of the daily living activities which non-disabled individuals enjoy are either impossible for him or at least severely curtailed as a result of his impairment. It is his view that an ability to walk 50 metres, which is the suggested standard in assessing the effect of the impairment, is in no way a plausible measure of his disability. He has asked how the definition of disability came about, who makes the decision as to whether an individual's basic daily activities are "markedly restricted" and how we define an excessive amount of time.

We would clarify that the Department of Finance has not attempted to define "disability" in the general sense nor has it acceded to requests to add some precision to the phrase "an inordinate amount of time". The information sheet that accompanies the Form T2201 (Disability Tax Credit Certificate) emphasizes that not all people with disabilities will be able to claim the credit. In this sense, the legislation itself defines what "markedly restricted" means in relation to the credit. Sections 118.3 and 118.4 of the Act serve to clarify which disabled individuals qualify for the credit for mental or physical impairment. Paragraph 118.4(1)(b) provides that, for the purposes of the credit, an individual's ability to perform a basic activity of daily living is markedly restricted only where all or substantially all of the time, even with therapy and the use of appropriate devices and medication, the individual is blind or unable (or requires an inordinate amount of time) to perform a basic activity of daily living. The information sheet makes reference to "an excessive amount of time", the terminology used by XXXXXXXXXX as another way of expressing the same concept. Also, subsection 118.3(4) provides that the Department may obtain the advice of Health Canada (now Human Resources Development Canada) as to whether the individual has a severe and prolonged impairment that markedly restrict his or her ability to perform a basic activity of daily living.

XXXXXXXXXX comments suggest that while there are days when he is incapable of walking, those days or instances do not appear to constitute "all or substantially all of the time". Throughout the Income Tax Act the term "substantially all" is interpreted to mean 90% of the time. However, he seems to imply that he perhaps requires "an inordinate amount of time" to walk on those days (or some of those days) that he is capable of walking. His specific question is "how fast is one normally expected to travel these 50 metres before the simple act of walking is considered taking an excessive amount of time?

For obvious reasons, there is no predetermined or set "speed" test applied in determining whether one takes an inordinate amount of time to perform a basic activity of daily living. It is our opinion that an interpretation of "an inordinate amount of time" would mean something more than longer than usual or longer than the average person would take to perform the task. For example, if a particular activity takes the average person 10 minutes to complete we would not view 11 minutes as being an inordinate amount of time simply because it exceeds the average time. The phrase "an inordinate amount of time" must be examined in its full context. The phrase itself is not defined in the Act and, therefore, it must be interpreted in its ordinary sense. In accordance with the "modern rule" for the construction of statutes, as expressed by E.A. Dreidger in "Construction of Statutes", 2nd ed., and as referred to by Estey J. in Stubart Investments Limited v. Her Majesty the Queen, (S.C.C.) 84 DTC 6305 at page 6323, the words must "be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament".

The Oxford English Dictionary, 2nd ed., defines "inordinate" to mean "not kept within orderly limits, immoderate, intemperate, excessive". While these terms may also be considered subjective, when the phrase is looked at in its context ("...the individual is blind or is unable (or requires an inordinate amount of time) to ..."), it becomes fairly evident that the period of time being referred to is a time so excessive or so great that were it not for the necessity of performing the basic activity it might not otherwise be undertaken.

We believe this interpretation to be harmonious with the object and spirit of the Act and reflective of the intent of Parliament. In amending the previous version of the provision which referred to "blind persons and persons confined to bed or wheel chair" as it read in 1986, the Department of Finance announced its intention to expand the deduction to severely disabling conditions which did not result in confinement to a bed or wheelchair. The legislation is clear in its wording that an impairment must be "severe" and "prolonged" before an individual is entitled to it. "Severe" implies something more serious than moderate or mild. The credit does not even extend to severely disabled individuals who are capable of performing the basic activities of daily living (as these activities are codified in paragraph 118.4(1)(c) of the Act) in the same or nearly the same time frames as an unimpaired individual as it is not the impairment which qualifies an individual for the credit but rather the effects of the impairment on the individual.

B.W. Dath
Director
Business and General Division
Income Tax Rulings and Interpretations
Directorate
Policy and Legislation Branch

c.c. E. Pastuch, Assessment & Collections Branch

J. Yu, Appeals & Referrals Division