Date: 19990503
Docket: 98-2812-IT-I
BETWEEN:
ANDRÉ BOUCHARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for judgment
Tardif, J.T.C.C.
[1] This is an appeal for the 1997 taxation year. The point at
issue is whether for that taxation year the appellant was
entitled to a non-refundable tax credit in the amount of $719.61
for persons with a severe and prolonged physical impairment.
[2] The appellant, a mechanic-welder by training, explained
that he had had a very serious accident on August 8, 1985,
in which he injured his left knee and foot. The accident occurred
when a metal beam weighing approximately 10,000 pounds
struck him violently. The appellant indicated that as a
consequence of the accident his attending physicians had
considered amputating his leg above the knee.
[3] Following a consultation with other specialists, he was
transferred to the Montreal General Hospital and
Dr. Raymond Gagnon, an orthopedic specialist, went to
work on repairing his knee. Following a two-week waiting period,
a Syme amputation at the left ankle became necessary.
[4] The appellant explained that he subsequently made every
effort to become as self-sufficient as possible again. His knee
was spared amputation, but he was still suffering significant
after-effects, to the point where his movements were now very
limited. His condition also caused him violent pain.
[5] The permanent partial disability affecting his left knee
also made it difficult to use his prosthesis. The appellant also
explained that the injuries to his knee caused wounds requiring
continuous care, even a number of years after the accident.
[6] He had to learn to live with this severe disability and
even today must considerably limit his activities. He saves his
energy so that he can hold gainful employment. Outside his
periods of work—and even then he suffers and must cope with
numerous unpleasant consequences and limitations—he tries
to protect his injured leg to the greatest extent possible so
that he can work.
[7] The evidence also showed that he must occasionally forego
the use of his prosthesis so that his wounds can heal. He must
remove the device every day, and he then becomes very vulnerable
when moving about and when he goes to the bathroom.
[8] The appellant explained in a manner that did him credit
that, despite the pain, inconvenience and numerous problems of
all kinds, he had always devoted his energy and determination to
fully discharging his family responsibilities, and particularly
to showing his children that courage must overcome any
inclination to feel miserable and to give up.
[9] In November 1986, the attending orthopedist was asked to
assess the permanent after-effects with which the appellant would
have to live for the rest of his life. Recalling that the
appellant was a mechanic-welder, I believe it is appropriate to
reproduce the [TRANSLATION] "Comments and Opinion"
written by the attending orthopedist,
Dr. Raymond Gagnon, and dated
November 28, 1986:
[TRANSLATION]
This young man suffered a very serious accident in which he
injured his lower left leg, losing his left foot and ankle as a
result of vascular problems associated with those injuries. We
note that he has been amputated at the astragalotibial joint. The
stump is in satisfactory condition and well padded. Injuries to
the knee involve the bone and ligamentous complex and there is
still significant damage to the knee as witnessed by the fact
that flexion does not exceed 80o to 85o and
there is a persistent flexion deformity of approximately
5o. The knee is painful and cracks significantly in
flexion.
You have asked me whether the worker's physical integrity
will be permanently impaired. There can be no doubt that it will
be. With respect to the amputation at his astragalotibial joint,
we rate his APD at 30%, and I do not think it an exaggeration as
regards the residual problems in his left knee to rate his APD at
15%. We have also determined ratings of 10% for the problems
resulting from flexion restrictions, 3% for the 5o
flexion deformity and 2% for the painful problems involving
cracking in his knee. This therefore amounts to a total
anatomicophysiological deficiency of 45% as a result of this
accident.
This young man will clearly never be able to resume the work
he previously performed as a mechanic-welder. In fact the only
work suited to his condition would be work performed sitting
down.
I therefore believe he should be redirected by the social
rehabilitation service. The applicant has already taken steps
with a view to taking helicopter piloting courses. The only thing
he is waiting for now is authorization from Transport Canada. I
believe this type of work could be very well suited to his
condition.
This is an assessment of partial but permanent after-effects.
Over the years, the appellant has learned to live with his
disability and to develop a whole set of ways and habits that
have provided him with a certain degree of rehabilitation,
although forcing him to make choices and redetermine his
priorities in life.
[10] At the hearing, the appellant produced a new certificate
completed and signed by Dr. Simon Cantin, orthopedist.
Dr. Cantin thought it appropriate to make an additional
assessment, as he clearly considered the form provided by Revenue
Canada to be incomplete or inadequate for the purpose of
conveying certain subtle, yet very important and relevant
points.
[11] I think it appropriate to reproduce here
Dr. Cantin's additional comments:
[TRANSLATION]
To whom it may concern,
The subject presented with an amputation to the lower left
leg. He has been disabled since the amputation and must wear a
prosthetic device in order to walk. This device also causes other
problems such as pain in the stump and irritation lesions on the
leg. There is also chronic discharge from the back of the knee.
The patient's various lesions require him to remove his
prosthetic device at the end of the day in order to treat
them.
He also has difficulty carrying on normal activities with the
prosthesis given the limitations caused by the various lesions to
his knee.
I believe that the subject's ability to perform basic
activities of daily living is markedly and permanently
restricted, even though he wears his prosthesis regularly.
[12] That is a coherent medical assessment of the
appellant's physical disability.
[13] Are the facts revealed by the evidence sufficient to
entitle the appellant to the non-refundable tax credit?
[14] These types of cases are generally very poignant and
elicit considerable compassion for the appellants, who, in
addition to suffering and living with their disabilities, are
required to come and explain their situations to the Court in
order to be entitled to a very small degree of tax relief.
[15] I consulted the case law submitted by the respondent with
considerable interest and I think it relevant to recall the
remarks made by the Honourable Judge Bowman of this Court
respecting the objectives of sections 118.3 and 118.4, which
I consider it appropriate to reproduce:
118.3 (1) Credit for mental or physical impairment. 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 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,
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.
. . .
(4) Department of Human Resources Development. The Minister
may obtain the advice of the Department of Human Resources
Development as to whether an individual in respect of whom an
amount has been claimed under subsection (1) or (2) has a
severe and prolonged impairment, the effects of which are such
that the individual's ability to perform a basic activity of
daily living is markedly restricted, and any person referred to
in subsection (1) or (2) shall, on request in writing by
that Department for information with respect to an
individual's impairment and its effects on the individual,
provide the information so requested.
118.4 (1) Nature of impairment. 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.
[16] In Radage v. The Queen, [1996]
3 C.T.C. 2510, Judge Bowman writes as follows at
pages 2828 and 2529:
The legislative intent appears to be to provide a modest
amount of tax 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 everyone 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.
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 provision must be given a
humane and compassionate construction.
This assessment has been repeated by the Federal Court of
Appeal, more specifically by Létourneau J.A. in
Robert C. Johnston v. Her Majesty The Queen,
A-347-97.
[17] There can be no doubt in the instant case that we are
dealing with a severe impairment whose effects are prolonged to
the point of being irremediable and permanent. Certainly the
analysis and assessment of ability must also take into account
the improvement or correction brought about by therapy or the use
of a prosthetic device.
[18] However, the limitations and the effects of the use of
such a device must also be considered. I do not believe final
conclusions can be drawn from the immediate benefits and
improvement or from the use of a prosthetic device. In other
words, it would not be appropriate to assume that the improvement
resulting from the use of a prosthesis is continuing and
permanent. I think it is essential to consider all the
inconveniences, risks and discomfort related to the use of a
non-permanent prosthesis.
[19] Through his persuasive testimony, the appellant showed
that his prosthesis definitely afforded him a fairly good quality
of life, provided he is very disciplined and very careful and
does not overdo his use of it. Some people may live virtually
normal lives with such devices. The evidence showed that this is
not the case for the appellant. Indeed, the appellant
demonstrated the contrary and his testimony was corroborated by
his medical specialists, even though they checked the
"yes" box for the question respecting the
"walking" activity on the questionnaire provided by
Revenue Canada. Moreover, in my view, this questionnaire may be
useful, but is definitely not sufficient in itself for
determining whether a taxpayer is entitled to the tax credit.
[20] In the instant case, the appellant discharged the burden
of proof that was on him by showing on the balance of evidence
that he was afflicted with a severe and prolonged physical
impairment preventing him from performing an activity of daily
living, namely walking. He also indicated that he had to give
very special attention to his leg every day in view of the
condition of his knee and the permanent after-effects from which
he suffered. The appellant has created an environment which
enables him to take care of himself and his family, although with
a number of constraints and difficulties. I do not believe one
should consider solely those moments in his life when he appears
to be like everyone else.
[21] For these reasons, I allow the appeal.
Signed at Ottawa, Canada, this 3rd day of May 1999.
"Alain Tardif"
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 24th day of February
2000.
Erich Klein, Revisor
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