Létourneau J.A. (Desjardins J.A. concurring):
Facts and Issues
1 These are applications for judicial review of a decision of a Tax Court Judge which denied the Applicant the disability tax credit found in paragraphs 118.3(1)(a.1) and 118.4(1)(c) of the Income Tax Act (the “Act”).
2 Under paragraph 118.3(1)(a.1), a taxpayer is entitled to a credit for mental or physical impairment where
(a) an individual has a severe prolonged mental or physical impairment,(a.1) the effects of the impairment are such that the individual's ability to perform a basic activity of daily living is markedly restricted,
(a.2) a medical doctor, or where the impairment is an impairment of sight, a medical doctor or an optometrist, has certified in prescribed form that the individual has a severe and prolonged mental or physical impairment the effects of which are such that the individual's ability to perform a basic activity of daily living is markedly restricted,
(b) the individual has filed for a taxation year with the Minister the certificate described in paragraph (a.2) and
(c) no amount in respect of remuneration for an attendant or care in a nursing home, in respect of the individual, is included in calculating a deduction under section 118.2 (otherwise than because of paragraph 118.2(2)(b.1) for the year by the individual or by any other person.
3 Section 118.4 defines the nature of an impairment in the following terms:
118.4: Nature of impairment
(1) For the purposes of subsection 6(16), sections 118.2 and 118.3 and this subsection,
(a) an impairment is prolonged where it has lasted or can reasonably be expected to last, for a continuous period of at least 12 months;
(b) 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 device and medication, the individual is blind or is unable (or requires an inordinate amount of time) to perform a basic activity of daily living;
(c) a basic activity of daily living in relation to an individual means
(i) perceiving, thinking and remembering,
(ii) feeding and dressing oneself,
(iii) speaking so as to be understood, in a quiet setting, by another person familiar with the individual,
(iv) hearing so as to understand, in a quiet setting, another person familiar with the individual,
(v) eliminating (bowel or bladder functions), or
(vi) walking; and
(d) for greater certainty, no other activity, including working, housekeeping or a social or recreational activity, shall be considered as a basic activity of daily living.
4 In the cases at bar, the issue is to determine whether, through a severe and prolonged physical impairment, the Applicant's ability to walk and to feed and dress himself is so markedly restricted as to say that he is unable, or that it requires from him an inordinate amount of time, to perform a basic activity of daily living.
5 The Applicant was born in July 1935 with a congenital condition identified as spinal epiphyseal dysplasia. The result of this condition is that the joints in many locations of the body do not form normally. The condition leads to a degenerative type of arthritis at different levels. The Applicant's condition was not identified at birth or in early childhood. About the age of nine, he started having problems with his right hip. It would go numb and cause him to collapse if he was running or being active. The family doctor thought it was a bone chip in the right hip and put him on crutches for almost two years. When the Applicant was ready to come off the crutches, he had x-rays which located a problem in his back. He was told it was osteoarthritis.
6 Although he and his family lived in Edmonton, he was sent to the Children's Red Cross Hospital in Calgary for close to two years. He was placed in a frame bed which arched his back and placed his head and feet at different levels. When he was released from the Red Cross Hospital about the age of 13, he had to learn to walk again. He returned to his family in Edmonton and completed high school but was not able to participate in team sports. When the Applicant finished high school in 1952 at age 17, he knew that he had to get a job where he could sit down because his back and hips would not permit him to work in a standing position. He got a job in the accounting department of Alberta Government Telephones (“AGT”); he progressed there and worked for 35 years until he retired in 1987 at age 52. He retired at that time because of health problems but deferred his pension until 1990 when he turned 55 in order to avoid a reduced pension.
7 The Applicant has had a number of serious medical problems which seem to be linked directly or indirectly to his condition of spinal epiphyseal dysplasia. In 1977, his right hip was replaced. In 1980, the cartilage was removed from his left knee. In 1982, his left knee was surgically broken and re-set in the hospital. In 1983, he had a heart attack, probably connected with his bone and joint condition because he was not able to get adequate exercise for his cardiovascular system. In 1990, he had triple by-pass heart surgery. In March 1994, his left hip was replaced. The techniques for hip replacement have improved significantly over the past 20 years but he was told in 1977 that his artificial right hip would last about 15-20 years.
8 Notwithstanding the health problems summarized above, the Applicant led an active life. He has equipped himself and his house with various kinds of aids and devices to assist him in the performance of these basic activities of daily living, i.e., walking, dressing and feeding.
9 The learned Tax Court Judge concluded that, although the Applicant's disability was severe and prolonged, his ability to walk, to feed himself and to dress himself were not, in 1992 and 1993, markedly restricted within the meaning of paragraph 118.4(1)(b) and, therefore, the Applicant was not entitled to the disability credit for these years.
Purpose and History of the Legislation
10 The purpose of sections 118.3 and 118.4 is not to indemnify a person who suffers from a severe and prolonged mental or physical impairment, but to financially assist him or her in bearing the additional costs of living and working generated by the impairment. As Bowman T.C.J. wrote in Radage v. R.[FN1: <p>[1996] 3 C.T.C. 2510 (T.C.C.).</p>] at p. 2528:
The legislative intent appears to be to provide a modest relief to persons who fall within a relatively restricted category of markedly physically or mentally impaired persons. The intent is neither to give the credit to every one who suffers from a disability nor to erect a hurdle that is impossible for virtually every disabled person to surmount. It obviously recognizes that disabled persons need such tax relief and it is intended to be of benefit to such persons.
The learned Judge went on to add, at p. 2529, and I agree with him:If the object of Parliament, which is to give to disabled persons a measure of relief that will to some degree alleviate the increased difficulties under which their impairment forces them to live, is to be achieved the provisions must be given a humane and compassionate construction.
11 Indeed, although the scope of these provisions is limited in their application to severely impaired persons, they must not be interpreted so restrictively as to negate or compromise the legislative intent.
12 In Landry c. R.[FN2: <p>(1994), [1995] 1 C.T.C. 2030 (T.C.C.).</p>] , Judge Lamarre Proulx reviewed the historical development of the legislation. Before 1986, as she mentions, the deduction was allowed to persons who were totally blind or confined to a bed or a wheelchair for long periods every day as the result of an illness, injury or infirmity. The taxpayers were entitled to the tax credit if he had not applied for any deduction in respect of remuneration for an attendant or care in a nursing home by reason of their disability.
13 In 1986, the scope of the deduction was extended to many severely disabling conditions which did not result in confinement to a bed or wheelchair[FN3: <p>See the<em>Budget Papers</em>of May 23, 1985, at p. 56.</p>] :
A new definition, applicable for the 1986 and subsequent taxation years, to be administered by medical experts in the Department of National Health and Welfare, has been developed which will include all severely disabled Canadians. It will cover persons with disabling conditions such as blindness, severe cardio-respiratory failure, mental retardation or mental illness, profound bilateral deafness, and functional impairment of the neuro- or musculo- skeletal systems, who also deserve tax assistance. Those administering the general medical definition will assess eligibility by evaluating information provided by the disabled person (or by his or her representative). If the effect of the disability is to markedly restrict the person in activities of daily living and if the disability has lasted or can be expected to last for a continuous period of at least 12 months, the person will be issued a disability certificate and will be eligible for the tax deduction. The new definition is compatible with the goal of independent living for disabled persons set out in the Report of the Special Parliamentary Committee on the Disabled and Handicapped.
14 The words “activities of daily living” found in the 1986 statute were left undefined. However, the administrative guidelines published by Revenue Canada interpreted the words as referring to basic functions such as seeing, hearing, speaking and walking. They excluded working as well as social, recreational and housekeeping activities[FN4: <p>See<em>Budget Document</em>of February 26, 1991, at p. 144.</p>] .
15 In 1991, Parliament amended the Act to introduce a definition of “activities of daily living”. Such definition merely incorporated in the legislation the administrative guidelines followed up to that time by Revenue Canada. As Lamarre-Proulx T.C.J. properly noted, this “new definition” was said to be in keeping with the objective of an independent life for handicapped persons. Severely handicapped persons were entitled to tax relief without having to remain confined to a bed most of their lives. The Department of Health gave the words “activities of daily living” the meaning of the fundamental “activities of daily life”[FN5: <p><em>Landry c. R.</em>(1994), [1995] 1 C.T.C. 2030 (T.C.C.)at p. 2038.</p>] . In fact, the 1991 legislative amendment did not change the existing eligibility criteria which then prevailed and were applied pursuant to the administrative guidelines issued by Revenue Canada[FN6: <p>See<em>Income Tax Act</em>, Department of Finance, Technical Notes, 9th Ed., 1997, Carswell Thomson Professional Publishing, pp. 885-86.</p>] .
Test to be met by a claimant
16 In order to benefit from the tax credit under s. 118.3, a taxpayer suffering from a severe and prolonged physical impairment has to establish that his ability to perform a basic activity of daily living is markedly restricted.
17 The expression “markedly restricted” has been defined to refer to an individual's inability, at all or substantially all of the time, even with therapy and the use of appropriate device and medication, to perform a basic activity of daily living. An individual's ability is also deemed to be markedly restricted if he requires an inordinate amount of time to perform such activity.
18 No definition has been given of what constitutes an inordinate amount of time in the performance of the basic activities of daily living. In my view, the expression “inordinate amount of time” refers to an excessive amount of time, that is to say one much longer than what is usually required by normal people. It requires a marked departure from normality.
The basic activity of walking
19 The learned Tax Court Judge found that the Applicant's ability to walk was not markedly restricted because he is able to walk slowly, his walking did not require an inordinate amount of time and his disability did not affect him all or substantially all of the time.
20 Counsel for the Respondent supported this finding of the Judge and also argued before us that a judge is entitled to look at the lifestyle of a claimant to determine whether his performance of a basic activity of daily living is markedly restricted. This submission of counsel for the Respondent begs for qualification.
21 Section 118.4 clearly states for greater certainty that no other activity, including working, housekeeping or a social or recreational activity, shall be considered as a basic activity of daily living. This, on the one hand, means that a claimant is not entitled to the tax credit if his impairment prevents him from having a social life or enjoying recreational activities. However, this also means, on the other hand, that a claimant cannot be penalized and disallowed the credit if he has been able to organize for himself a social life or recreational activities.
22 However, the social or recreational activities of a claimant may be of such a nature as to evidence an ability to walk, dress or feed which is not markedly restricted. In my view, it is not the lifestyle per se of a claimant which is relevant to a determination of his inability, but the nature, length and frequency of any other activity that he performs since the performance of such other activity may contribute to establish that the performance of the basic activities of his daily living is not markedly restricted.
23 I am satisfied that it was proper for the learned Tax Court Judge to take into account other activities of the Applicant such as his driving and his frequent visits to play bridge or attend therapy for the purpose of determining his ability to walk and the amount of walking done by him.
24 However, I believe that he misapprehended the requirements of the Act and the evidence as a whole when he concluded that the Applicant was not, on the issue of walking, entitled to the disability credit because he did a considerable amount of walking and his disability did not affect him all or substantially all of the time.
25 The evidence shows that the Applicant has great difficulties walking, needs one or two canes or rails to cover short distances, uses a wheelchair for longer distances, limits his walking to the essential and bare minimum, walks only when it is necessary, walks on his best days relatively short distances of 50 feet, does not even get out of bed on his worst days, has 10 bad days a month, cannot walk the distance of a block because he would not be able to return and walks a maximum of 10 to 15 minutes per day[FN7: <p>Transcript pp. 28, 56, 59-63, 65, 70, 89, 94, 97-99, 104-07, 135, 137, 138.</p>] .
26 Although the evidence on the amount of time required by the Applicant to walk a short distance could have been more accurate and strenuous, the fact remains that the Applicant's testimony on this issue is uncontradicted and there is no indication that the Judge disbelieved him. He testified that he would probably cover a distance of 50 feet while a normal person could probably walk six blocks[FN8: <p>Transcript pp. 64-65.</p>] . In cross-examination, he asserted that it probably takes him five minutes to walk 50 feet[FN9: <p>Transcript p. 129.</p>] . The Applicant may have overstated the capacity of a normal person to walk six blocks in five minutes, but this does not detract from the fact that it takes him five minutes to cover a distance of merely 50 feet. This, in my view, is an inordinate amount of time. In addition, the time required by the applicant increases as he gets slower if the distance gets longer[FN10: <p><em>Id.</em></p>] .
27 In Thomas v. R.[FN11: <p>(1996), [1997] 2 C.T.C. 20 (Fed. C.A.).</p>] , this Court ordered a new hearing, one of the grounds being that the Tax Court Judge had failed to consider the fact that the claimant took 20 to 25 minutes to walk a distance which should normally take seven minutes. Although our Court did not rule that the time thus taken amounted to an inordinate amount of time, it felt that the departure from normality was sufficiently marked to require consideration by the Tax Court Judge.
28 In my view, the evidence before us reveals that all the time the Applicant's ability to walk, due to a severe and prolonged physical impairment, is markedly restricted because of the serious limitations that he suffers and the inordinate amount of time that he takes in the performance of that basic activity of daily living.
The basic activity of feeding and dressing oneself
29 The learned Tax Court Judge concluded that this aspect of the Applicant's claim has little merit because the Applicant has a relatively good use of his hands which he inferred from the amount of driving the Applicant does[FN12: <p>Decision p. 8.</p>] .
30 With respect, I think the learned Judge took much too narrow a view of “feeding” and “dressing” and, as a result, paid lip-service to the evidence given by the Applicant on these matters.
31 Counsel for the Respondent argued before us, and it was accepted by the learned Judge, that the notion of “feeding” refers to a person's capacity to take food from a plate and bring it to his mouth. I strongly disagree. There is no doubt that a two-year-old child can take food from a plate and put it in his mouth, but there is also no doubt that nobody would assert that that child is able to feed himself. I agree with this statement of Bonner T.C.J. in Hodgin v. R.[FN13: <p>(September 7, 1995), Doc. 94-3151(IT)I (T.C.C.)</p>] :
I turn next to feeding oneself. That involves, in my view, something more than eating a meal prepared by another person. One cannot feed oneself unless one is capable of taking basic food stuffs in the form commonly available in a grocery store and cooking or otherwise preparing and setting out a meal.The test is feeding oneself, not simply eating a meal. The language of the legislation is clear in that respect. The requisite ability to feed oneself involves the ability to prepare a reasonable range of food and not just to prepare and set out snacks, junk foods or frozen dinners. Here the limitations on the movement of the Appellant's hands required the assistance of her husband in meal preparation to a degree that supports a conclusion that the Appellant was incapable of feeding herself. (Emphasis added.)
32 The notion of feeding, in my view, also involves the ability to prepare a meal which conforms to a medically prescribed diet and medication which maintains one's state of health or prevents its deterioration.
33 To limit the notion of feeding to the ability to eat a meal is to overlook the objective of the statute which, it bears repeating, is to financially assist those who, because of their disability, require assistance in fulfilling such a basic activity of daily living. To include the preparation of a reasonable meal in the notion of feeding is, on the contrary, fully consistent with such objective and the spirit of the disability credit.
34 In the present instance, the evidence is overwhelming that, except for operating a microwave to cook a potato, boiling tea and occasionally making a sandwich[FN14: <p>Transcript pp. 66-67, 110, 112.</p>] , the Applicant cannot prepare food generally, let alone food that is medically required by his state of health and medication[FN15: <p>Transcript pp. 49, 66, 108, 110.</p>] , that he needs daily assistance for his meals[FN16: <p>Transcript pp. 67, 112-113.</p>] and that on some days, up to 10 or 12 a month, he cannot even get up from his bed and go downstairs[FN17: <p>Transcript pp. 62-63.</p>] .
35 In my view, the Applicant cannot feed himself within the meaning of the statute or at best requires an inordinate amount of time to perform that activity.
36 On the issue of dressing oneself, counsel for the Respondent, on the one hand, took a very narrow view of the meaning of such expression. To her, the expression refers only to the ability to clothe and unclothe oneself. On the other hand, the learned Judge concluded that if “feeding” includes meal preparation, then “dressing oneself” should include the laundering and drying of clothes. I disagree with both. Just like the notion of feeding is not limited to the simple act of eating a meal, the notion of dressing is not limited to the simple act of putting on and taking off clothes and, yet, does not have to be extended to the laundering and drying of clothes to implement the legislative intent.
37 In my view, the notion of dressing oneself includes the ability to perform basic and elementary personal hygiene associated with it, such as shaving and bathing.
38 Again on this issue, the evidence is compelling that the Applicant took an inordinate amount of time to dress himself in the morning in order to be ready for the day. He testified that he needs the daily assistance of his wife to wash and dry the lower part of his body, especially his toes and feet[FN18: <p>Transcript pp. 30, 32, 73, 117.</p>] , that he needs the assistance of his wife to cover the bottom part of his legs when he dresses up[FN19: <p>Transcript p. 72.</p>] , that it takes him 20 minutes to do things that a person would normally do in five minutes[FN20: <p>Transcript p. 74.</p>] , that it takes him 15 minutes to put a shirt on and do all the buttons up[FN21: <p>Transcript p. 115.</p>] and that he needs three or four minutes to put on a pair of socks even with the assistance of devices[FN22: <p>Transcript p. 123.</p>] . The Applicant testified that the process of dressing himself in the morning, which includes bathing and doing necessary exercises up to 30 minutes because his limbs are numb and he cannot move them, takes between two and two-and-a-half hours[FN23: <p>Transcript pp. 57, 74-75, 93 and 117.</p>] .
39 Counsel for the Respondent submitted that the half-hour period of exercises in the morning should be subtracted in the computation of the amount of time required by the Applicant to dress himself. I disagree. These exercises are made necessary by his disability in order for him to recover the use of his limbs and, therefore, be able to dress up. The time spent to overcome the effects of the disability so as to acquire the ability to perform such a basic activity of daily living is part of the inordinate amount of time required by the Applicant to dress himself.
40 In my view, the learned Tax Court Judge erred in law in concluding that the Applicant could feed and dress himself and, therefore, was not entitled to the disability credit.
41 For these reasons, the applications for judicial review should be allowed, the decision of the learned Tax Court Judge should be set aside and the matter remitted to the Tax Court of Canada for redetermination on the basis that the Applicant is entitled to the section 118.3 disability tax credit.
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