Shiels v. The Queen, docket 1999-54-IT-I (Informal Procedure)

Date: 19991207

Docket: 1999-54-IT-I

BETWEEN:

KATHLEEN SHIELS,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

Bowie J.T.C.C.

[1] These appeals are brought from the decisions of the Minister of National Revenue to deny the Appellant the benefit of a disability tax credit under subsection 118.3 of the Income Tax Act (the Act) for each of the taxation years 1995 and 1996.

[2] During the year 1995, the Appellant was involved in a serious automobile accident. Within a fairly short time thereafter she was involved in two more automobile accidents. As a result of these three accidents she suffered, during the years 1995 and 1996, from a number of severe injuries which combined to have a disastrous effect on her ability to carry out what would, in the ordinary understanding of the expression, constitute basic activities of daily living. The availability of the disability tax credit, however, is severally constrained by the very restrictive wording of sections 118.3 and 118.4 of the Act. Those sections read as follows:

118.3(1) Where

(a) an individual has a severe and 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 or 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,

for the purposes of computing the tax payable under this Part by the individual for the year, there may be deducted an amount determined by the formula

A x $4,118

where

A is the appropriate percentage for the year.

118.4(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 devices 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.

Within the limited scope that these provisions afford, the Appellant's claim is focussed upon the ability, or more exactly, in her submission, the inability, to walk.

[3] Ms. Shiels' first motor vehicle accident occurred on March 10, 1995. She was 28 weeks pregnant. In that accident she suffered a neck injury which produced frequent headaches. She spent some time in hospital on two occasions, and in early April her child was born prematurely, following an induction indicated by hypertension attributable to the pregnancy and the motor vehicle accident.

[4] After the birth, she was involved in two more motor vehicle accidents, one in May and the other in August 1995. These caused symptoms which included alterations in visual acuity, memory loss, vertigo and tinnitus. She also suffered considerable chronic pain. The combination of these symptoms, together with the difficulty they caused for her in caring for a newborn infant, resulted in substantial pain and disability throughout the latter part of 1995 and all of 1996. The Appellant's claim for the disability credit, however, is based specifically upon acute symptoms of vertigo which she suffered throughout this time period.

[5] The diagnosis of Gillian M. Gibson, M.D., as recorded in August 1996, was of ocular convergence spasm and severe vestibular symptoms, with vertigo and imbalance, resulting from a series of whiplash injuries. By the time her appeal was heard in November 1999 these symptoms had greatly improved. Surgery was still indicated, however.

[6] The Appellant's difficulty in walking manifested itself in this way. Without warning, while walking, she frequently experienced fainting spells which caused her to suddenly lose consciousness and fall. These spells occurred frequently in 1995 and 1996. They were of such frequency that she and her partner were obliged to remove virtually all of the furniture from their apartment and place mattresses on the floor to minimize the injuries that she would otherwise suffer from these sudden falls. She suffered falls while shopping, and while walking on the street with her infant. They caused her numerous fracture injuries to her ankle, wrist, knee and nose. Although the symptoms abated with time, during 1995 and 1996 the Appellant could not walk anywhere without concern for the likelihood of falling. She had to be accompanied by a friend or relative when walking outside, and was unable to carry her baby for fear of falling and causing injury to them both.

[7] According to D. Lynn Doyle, M.D., whose report is dated May 7, 1999, the Appellant requires surgery for left thoracic outlet syndrome, to cure symptoms caused by compound damage resulting from the automobile accidents. The Appellant's problems following upon these accidents include some loss of memory and the ability to do simple mathematical problems. No doubt these symptoms were worrying to her, as were her vertigo and spells of lost consciousness. However, she quite rightly does not maintain that they amount to loss of the ability to think, perceive and remember, or at least not in the degree that would meet the onerous requirements of section 118.4 of the Act. The same is true of the extent to which her injuries affected her ability to speak and to hear.

[8] As I have said, the Appellant bases her claim upon subparagraph 118.4(1)(c)(vi), inability to walk. I am mindful of the direction found in such cases as Johnston v. The Queen, 98 DTC 6169 and Friis v. The Queen, 98 DTC 6419 that the disability tax credit provisions of the Act should be interpreted in a way that is humane and compassionate. Nevertheless, the Appellant's symptoms cannot, in my view, be described as constituting an inability to walk. It is true that during the period in question she suffered from fainting spells, which made walking a hazardous occupation for her, and she therefore had to exercise extreme caution in doing so. It would not be accurate to say that "all or substantially all of the time" she was unable to walk.

[9] The evidence on the hearing of the appeals included two disability tax credit certificates. The first was signed by her doctor on January 31, 1997 and the second on May 24, 1997. On both these certificates the question is asked: "Is your patient able to walk, using an aid if necessary? (For example, at least 50 metres on level ground.)". The answer is "Yes" in each certificate. The symptoms suffered by the Appellant are described in very abbreviated form in the certificates. Those descriptions are consistent with her evidence at the hearing of the appeals. The fact that her physician checked the answer "Yes" on the certificate is not totally dispositive of the issue. If the evidence persuaded me that this was the result of the physician misconstruing the question as it relates to the provision of section 118.4, then I would have no hesitation in finding that the physician should have answered "No" to the question. This is not the case in these appeals, however. What the Appellant suffered from during the period in question was vertigo, with recurring fainting spells, which made walking, and no doubt other activities as well, dangerous for her. However this is not to say that she could not walk. Her disability did not relate to walking, but was related entirely to periodic loss of consciousness, a disability which is not covered within section 118.4.

[10] I believe the Appellant's evidence, and I have no doubt that her injuries were severe, and that she found the ordinary activities of living to be very difficult indeed, particularly with a newborn child to care for. My sympathy for her position, however, cannot overcome the very restrictive language that Parliament has used in sections 118.3 and 118.4 of the Act. I have no alternative but to dismiss these appeals.

Signed at Ottawa, Canada, this 7th day of December, 1999.

"E.A. Bowie"

J.T.C.C.