Reimer v. The Queen, 2003 TCC 223 (Informal Procedure)

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Appeal heard on March 20, 2003, at London, Ontario.

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JUDGMENT

The appeal from the assessment made under the Income Tax Act for the 2000 taxation year is allowed with costs and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the appellant was entitled to a non-refundable disability tax credit for 2000.

Signed at Ottawa, Canada, this 8th day of April 2003.

J.T.C.C.

REASONS FOR JUDGMENT

Rip, J.

[1]      Rodney Reimer appeals his income tax assessment for 2000 in which the Minister of National Revenue ("Minister") disallowed his claim for a disability tax credit under subsection 118.3(1) of the Income Tax Act ("Act").

[2]      Mr. Reimer, 42 years of age at time of trial, suffers from a congenital birth defect that requires him to wear a prosthetic device, a partial artificial left leg. Before he was 15 years of age he underwent about a dozen surgeries. The effect of the surgeries is to have the incision from the operations on his stump subject to splitting open. The incision and three or four other "cracks" have healed but remain as open wounds.

[3]      The prosthesis consists of three main parts, the top part which combines a corset and a knee brace, a bottom part that is soled and a foot piece that permits flexibility for ease of walking. Without the prosthesis Mr. Reimer cannot walk. He does not use anything other than the prosthesis.

[4]      The whole prosthesis can only be worn by Mr. Reimer for 10 to 12 hours a day. If it is worn too long, his leg does not breath, sweat builds up and attacks the skin. This causes Mr. Reimer pain, Mr. Reimer testified he feels pain 99 per cent of the time. On a scale of one to ten, he stated that on a "bad" day, the pain level is seven to eight, on a "good" day, two to three, usually about three. Mr. Reimer estimated that 25 per cent to 33 per cent of the year are "bad" days. On hot days in the summer the pain was exacerbated due to the sweat caused by the heat. The pain limits his ability to walk.

[5]      The level of pain varies during the day. In the morning, due to swelling, the pain is more acute. Pain level settles during mid-day but increases at night as perspiration appears on the cracks in the skin and the leg shrinks. Mr. Reimer described the pain as "burning" sensation, caused by the tearing and breakdown of skin tissue.

[6]      Mr. Reimer relieves his pain by icing his stump for 15 to 30 minutes, applying various creams, including cortisone creams, and taking anti-inflammatory drugs. Icing, he stated, keeps away the pain, the cortisone cream helps heal open sores and the anti-inflammatory drugs reduce swelling and inflammation.

[7]      Mr. Reimer worked as a courier for a laboratory for four or five hours a day during the first few months of 2000. He would drive from London to Burlington and Woodstock to pick-up samples for the laboratory in London. He recalled he was able to walk into a facility to pick-up a sample but he would park his car close to the facility so he would not have to walk more than 50 feet. He estimated he could walk 50 feet in about 20 to 25 seconds on a "good" day. On "bad" days, he would move quickly between his car and the facility, "just to get there quickly . . . to try to sit down". He said he would "hobble real fast" so the pain would subside.

[8]      Later on in 2000, Mr. Reimer worked in the mailroom of the laboratory and also took care of the laboratory's motor vehicles. The mailroom is 25 feet long. On "good" days he has no trouble walking in the room. On "bad" days he has to lean on tables to get around just to walk five or ten feet, so that there is less weight on his leg.

[9]      In general Mr. Reimer avoids walking; he drives whenever and wherever he can. When he walks, he does so slowly, about "25 per cent to 40 per cent slower" than the average person on a "good" day. In the morning he walks slower than at mid-day, but slower again in the evening. If the walking surface is not level, or not paved, he has to be very cautious to ensure his foot is on a solid base. He climbs stairs 50 per cent slower than most people, he takes one step at a time so as not to lose balance.

[10]     Dr. Michael Hickey signed Mr. Reimer's disability tax credit certificate (Canada Customs and Revenue Agency ("CCRA") form T2201) for 2000 although he first attended Mr. Reimer in February 2001 on a matter unrelated to his physical disability. While Dr. Hickey checked "no" to the question "can your patient walk?" in the certificate, he acknowledged at trial that he did not consider whether Mr. Reimer could walk 50 metres on level ground or if he took an inordinate amount of time to do so. At trial, Dr. Hickey was of the view that Mr. Reimer could walk 50 metres on level ground. However, the longer he walked, the slower was the pace. Dr. Hickey was of the view that the phrase "inordinate amount of time" meant more than average.

[11]     In a questionnaire sent to him by the CCRA, Dr. Hickey said he struggled with the answer to the question to compare Mr. Reimer's condition "to an average person of the same age who does not have the impairment", and whether Mr. Reimer took longer, moderately longer or an extremely longer time to walk 50 metres on level ground. He did answer "longer" but he "agonized" over the answer.

[12]     However, Dr. Hickey never observed Mr. Reimer walking nor did he ever discuss with Mr. Reimer the length of time it took him to walk 50 metres. He met Mr. Reimer as he walked to his examination room. He explained that as Mr. Reimer's skin breaks down it takes longer for him to walk. When he examined Mr. Reimer in 2001, Mr. Reimer's skin had broken down and he was in pain. He prescribed antibiotics, cortisone and anti-emollients. Dr. Hickey said it would take days or two to three weeks for a skin breakdown to heal. Dr. Hickey agreed that Mr. Reimer's condition was chronic and recurrent.

[13]     Mr. Reimer's description of pain, its length and severity, applied to 2000 as well as at time of trial.

[14]     Before 2001, Mr. Reimer's general physician was a Dr. Pierce whom he saw three or four times in 2000 to obtain various creams. He also was seen about every three years by a specialist.

[15]     There is no doubt that Mr. Reimer's physical impairment is severe and prolonged. The impairment has been certified as required by a medical doctor, Dr. Hickey. The only issue is whether, for the purposes of subsection 118.3(1) of the Act, the effects of the impairment are such that Mr. Reimer's ability to walk in 2000 was markedly restricted during all or substantially all of 2000.[1]

[16]     Mr. Reimer could not use his prosthesis on a regular basis in 2000, either because of the weather, causing his stump to sweat when it was hot, or because of open wounds; both these conditions caused pain and restricted his ability to walk at all. At times he wore his prosthesis - which was the majority of the time - his ability to walk could not be compared favourably to an able bodied person. He walked slower, and the speed of his walk lessened with the distance attempted. Mr. Reimer tried to avoid walking. This problem affected him every day in 2000, whether the day was a "good" day or a "bad" day. In my view he required an inordinate amount of time to walk using his prosthesis and was unable to walk when he did not wear the prosthesis. His ability to walk was markedly restricted substantially during all of his waking and non-sedentary hours in 2000.

[17]     The appeal is allowed with costs.

Signed at Ottawa, Canada, this 8th day of April 2003.

J.T.C.C.