Morin v. The Queen, docket 96-2557(IT)I (Informal Procedure)

96-2557(IT)I

BETWEEN:

JAMES R. MORIN,

Appellant,

and

HER MAJESTY THE QUEEN,

Appeals heard on January 13, 1998, at Sudbury, Ontario, by

the Honourable Judge D.G.H. Bowman

Appearances

For the Appellant:                      The Appellant himself

Counsel for the Respondent:      Natalie Goulard

JUDGMENT

          The appeals from the assessments made under the Income Tax Act for the 1994 and 1995 taxation years are allowed and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment to allow the appellant the disability tax credit provided by section 118.3 of the Income Tax Act.

          The appellant is entitled to his costs, if any.

Signed at Ottawa, Canada, this 30th day of January 1998

J.T.C.C.

Date: 19980130

Docket: 96-2557(IT)I

BETWEEN:

JAMES R. MORIN,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

Bowman, J.T.C.C.

[1]      These appeals are from assessments for the 1994 and 1995 taxation years whereby the Minister of National Revenue denied the appellant's claim for a disability tax credit under section 118.3 of the Income Tax Act.

[2]      The question is whether in those years he had a severe and prolonged physical impairment, the effects of which were such that his ability to perform a basic activity of daily living was markedly restricted.

[3]      Commencing in 1988 the appellant, who is today 58 years old, developed severe pains in his back and was unable to continue to work. The immediate cause was degenerative disc problems. He would fall down and had to be carried out of his place of work, the mine at Inco where he was a diesel mechanic leader. He was operated on in 1988, without much apparent success, and the problem reached such intensity that in 1990 he was again operated on and discs were removed. This seems to have brought about some improvement.

[4]      The pain and the lack of further progress in his medical condition has brought about severe depression and at one point he suffered a nervous breakdown and was in a psychiatric ward. In addition to large doses of painkiller he also turned to alcohol. He has recently stopped drinking and it is hoped that his battle with alcohol will be successful. Also, in May of 1997 he separated from his wife and is living in a trailer.

[5]      I mention these matters to demonstrate the profound effect his disability has had on him. At the time of trial in January 1998 he appears to have started to come to terms with some of his problems, possibly to some extent with the aid of massive amounts of painkillers.

[6]      The specific basic activity of daily living which he says is markedly restricted is walking. Both he and his wife testified that his ability to walk was about the same today as it was in 1994 and 1995. He walks with a cane, but not, he testified, to help him to walk but rather to prevent him from falling down. He still falls down a couple of times a week. He testified that in 1994 and 1995, when he was still living with his wife, his daughter lived three doors down the street. He could not walk to her house without stopping a couple of times and sitting down on the street or on a neighbour's front lawn. He is in constant pain.

[7]      Mr. Morin did not strike me as a person who exaggerated his affliction for the purposes of the court hearing. On the contrary I suspect that it is worse than he makes out. Having heard more disability tax credit cases than I care to count, I have observed that frequently appellants, far from exaggerating their disabilities, seek to downplay the effect because they feel a certain reluctance to display the extent to which they can no longer do the things they used to be able to do. Mr. Morin appears to me to be such a person. The court sat in a hotel. Mrs. Morin, who drove the appellant to the hearing, testified that in coming to the courtroom from the parking lot Mr. Morin had to stop and rest about one-half way between the two in the coffee shop. He cannot walk more than about 25 to 30 feet without resting. It is true, he can walk, but his progress is slow and painful. I am satisfied that he has a severe and prolonged disability, the effects of which markedly restrict his ability to perform a basic activity of daily living, viz. walking. In reaching this conclusion, I am following the approach which I followed in Radage v. The Queen, 96 DTC 1615, Noseworthy v. The Queen, 95-1862(IT)I, January 10, 1996; Lawlor v. The Queen, 95-1585(IT)I, January 10, 1996; Hillier v. The Queen, 95-3097(IT)I, January 11, 1996 and Lamothe v. The Queen, 95-2868(IT)I and 95-3949(IT)I, April 18, 1996.

[8]      The appeals are allowed and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment to allow the appellant the disability tax credit provided by section 118.3 of the Income Tax Act.

[9]      The appellant is entitled to his costs, if any.

Signed at Ottawa, Canada, on this 30th day of January 1998.

J.T.C.C.

COURT FILE NO.:                             96-2557(IT)I

STYLE OF CAUSE:                           James R. Morin and

                                                          Her Majesty The Queen

PLACE OF HEARING:                      Sudbury, Ontario

DATE OF HEARING:                        January 13, 1998

REASONS FOR JUDGMENT BY:     D.G.H. Bowman

DATE OF JUDGMENT:                     January 30, 1998

APPEARANCES:

For the Appellant:                      The Appellant himself

Counsel for the Respondent:      Natalie Goulard

COUNSEL OF RECORD:

For the Appellant:

Name:                 --

Firm:                  --

For the Respondent:                  George Thomson

                                                Deputy Attorney General of Canada

                                                          Ottawa, Canada