Date: 19990611
Docket: 97-3525-IT-I
BETWEEN:
MICHAEL STEWART,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Sarchuk, J.T.C.C.
[1] These are appeals by Michael Stewart from assessments of
tax with respect to his 1994 and 1995 taxation years. The issue
is whether the Appellant is entitled to an unused credit for
mental or physical impairment transferred from his spouse
pursuant to section 118.8 of the Income Tax Act (the
Act) in the computation of his non-refundable tax credits
and tax payable for these years. The deduction was denied by the
Minister of National Revenue (the Minister) on the basis that the
Appellant's spouse was not suffering from a severe and
prolonged mental or physical impairment which markedly restricted
her ability to perform a basic activity of daily living within
the meaning of subsection 118.4(1) of the Act thereby
not entitling her to a credit pursuant to subsection 118.3(1) of
the Act.
[2] Subsection 118.3(1) of the Act provides in
part:
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 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 ...
And a formula follows.
[3] Subsection 118.4(1) defines the nature of an impairment in
the following terms:
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.
[4] The Appellant, his wife, Maryann Bernadette Stewart
(Maryann), and her current family physician, Dr. Noor Mohammed
Khan, gave evidence at the hearing of these appeals.
[5] On March 13, 1987, Maryann was a passenger in a motor
vehicle which was involved in an accident. She sustained a number
of injuries, the most serious of which were a compound fracture
of her right wrist and a temporal mandibular fracture. Surgery
was performed to repair the fracture of the wrist and several
days later, she had closed reduction jaw surgery and had her jaws
wired. On May 5, 1988, she underwent what the Appellant
described as "nerve releases in her arm for both the median
nerve and the ulna nerve". The fractured jaw continued to
give her great difficulty and in August 1988, she underwent
arthroscopic surgery to both temporo-mandibular joints (i.e. the
jaw joints). The pain did not abate and, in the Appellant's
words, in August 1989, "a condylectomy was performed where
the surgeon removed her right jaw joint that was protruding
inwards in her head, and at the same time, plastic implants were
implanted into both jaw joints to act as a spacer between the jaw
and the glenoid facet". Her condition did not improve and as
a result, further surgery was performed in October 1992 which,
the Appellant said, involved the removal of one of her ribs which
was "shaved into a jaw joint and grafted onto her jaw"
and "was attached with a titanium plate and screws that ran
from the bottom of her right ear down towards her chin".
This procedure apparently did little, if anything, to reduce her
discomfort and on November 28, 1996, a specialist removed the
plate.
[6] The Appellant testified that Maryann has a degenerative
problem in her jaw and that as well, osteoarthritis has set in.
He alleges her daily living is hampered by a number of medical
complications including depression caused by a chemical
imbalance, myofascial pain syndrome, chronic pain arising from a
temporo-mandibular joint disorder, insomnia, post-traumatic
stress disorder and fibromyalgia. According to the Appellant, the
foregoing diagnoses were made at one time or another prior to or
in the taxation years in issue or in some instances, subsequently
by "a myriad of doctors". He says her daily life
includes sinus problems, swollen glands, difficulty swallowing,
dizziness, body sweats, severe stiffness and back pain. She has a
weak grip and drops things, unexplained toothaches, sensitivity
to cold, heat, humidity, and atmospheric pressure changes as well
as blurry, changing vision and tinnitus or ringing in the ears.
She suffers from panic attacks, confusional states, as well as an
irritable bladder and bowel and mood swings. She has difficulty
expressing herself and has short-term memory impairment. She gets
confused and has directional disorientation. With respect to the
foregoing, the Appellant maintains that they all relate to the
continuous pain that she suffers and that the symptoms are
"basically ... a bi-product of pain and
medication".
[7] It must be observed that the evidence regarding
Maryann's medical history comes almost exclusively from the
Appellant. He has no background in the medical or any related
field, but does appear to have a general understanding of
Maryann's medical problems and a facility with medical
terminology. The Appellant apparently had written reports or
other documents with respect to examinations by doctors other
than Dr. Khan but none of these were produced to the Court. In
fact, he appeared reluctant to subpoena any of the doctors
involved and only did so in the case of Dr. Khan at the
urging of the Court. While I am not prepared to reject his
testimony out-of-hand, the weight to be given to it must reflect
this fact.
[8] The Appellant's position is that Maryann's
disabilities: "then and now are so severe that all basic
criteria, or criteria, sorry, of basic activities of daily living
are affected." More specifically she is unable to walk any
distance without pain and much of the time uses a cane. He says
the only time she leaves the house is for medical appointments
and then does so only with his help. She is unable to do any of
the household cleaning, shopping or cooking most of which is done
by the Appellant as are all other household functions including
looking after their daughter. He testified that she has
difficulty speaking "due to the problem with her jaw which
causes her severe pain, which causes anxiety, and the circle
continues" and he maintains that she is unable to fully
grasp or understand what goes on with respect to 'family
matters' and he is required to take care of that as well.
[9] The evidence of Maryann encompassed, without distinction,
a period of time commencing prior to the taxation years in issue
up to the present time. As she observed:
" ... And this thing has always interfered in my
life and the pain is just all body pain now and it surrounds from
part to part" and "I don't know how I am going to
feel like everyday of my life, and I don't know how I can
work because how will I know if I am sick, or when I am going to
be sick, when I am going to - – not going to be able to
walk, when my head swells up.
And all I know is that it started a number of years, in 1993,
and it's getting a lot worse since 1993".
She described her pain as at times, impossible to bear and
indicated that at one point of time it was so bad that the doctor
from the Pain Clinic prescribed morphine. She testified that the
pain prevents her from doing many things such as playing with her
child, attending to normal household functions, etc. She detests
having to stay in the house all winter because the cold causes
her extreme discomfort. She feels that she is imposing on others
and complains of a loss of independence. She says she is unable
to shop by herself because she is afraid she might fall and she
speaks of being confused because she has no idea whether it will
ever end.
[10] Maryann's testimony was not particularly informative
with respect to her condition in the taxation years in issue.
This was not, in my view, deliberate, rather it was indicative of
the very obvious difficulty she was having in organizing her
thoughts. She spoke of the pain getting worse in each and every
year but in terms of requiring assistance, "walking around
the house" in those years she responded: "I don't
think so. I don't know". She said she could not
"put herself back in 1994 and 1995" other than "my
FM had supposedly started in 1993 and all I remember is it
getting worse from then on in. I can't seem to focus on 1994
and 1995, but all I remember is that it got worse from 1993. But
I can't remember any specifics about it."
[11] Dr. Khan is a general practitioner and has been
Maryann's family physician since 1994, seeing her first on
March 25th and then again on March 30th. He described her as
being in severe pain and walking very slowly. In the course of
the examination, she appeared tearful, anxious, crying, and
complained that she was in too much pain and nobody was helping
her. She indicated it was difficult for her to walk or to sit and
that she believed her problems were mostly related the 1987
accident. As well in the course of his examination, Dr. Khan
learned that Maryann had been prescribed an anti-depressant
by a psychiatrist some two or three years previously. The dosage
prescribed at that time indicated to Dr. Khan that Maryann was
"quite depressed". Based on the history he obtained,
Dr. Khan referred her to Dr. J.G. Frain, a
rheumatologist. Following his examination, Dr. Frain provided Dr.
Khan with his report and prescribed anti-inflammatory drugs
for Maryann.[1]
When the anti-inflammatory drugs failed to provide her with any
relief, Dr. Khan referred her to Dr. Cruickshank at the Pain
Clinic, Health Sciences Centre. Dr. Cruickshank prescribed
painkillers and submitted a brief report to Dr. Khan.[2]
[12] Dr. Frain's speciality is internal medicine and
rheumatology. The report he forwarded to Dr. Khan contains the
following comment:
" ... She presents with an interesting combination
of signs and symptoms and history suggesting a combination type
diagnosis. Her old trauma no doubt has a lot to do with her jaw
and face pain and the repeated operations may contribute to some
of the secondary muscular fibromyalgic symptoms. Nonetheless, she
has marginal signs of inflammatory problems and some lab tests
which are not totally normal. Hopefully, her next surgical
procedure will be the last for her jaw and head problems and then
some of the other things can settle out. The evidence for
inflammatory arthritis is not beyond treatment with
non-steroidals. For the moment, I have suggested a switch to
Tolectin DS t.i.d. though the previous Ketoprofen had been
modestly successful. I thought she could return to your care.
Her recent changes have been pain and swelling in her hands
and feet over the last few months. She had been given Arthrotec
for some of her facial pain just before that and tended to blame
that drug for the onset. Otherwise no particular adverse effects
to the drug were noted and I would think this was coincidence. At
any rate, it did not prevent the onset of the finger problem with
some in her feet and some knee and ankle swelling. These were
added to the distress she had had for some time. Seven years ago
she had been in a motor vehicle accident with multiple injuries,
most notably a jaw injury which had remained inadequately aligned
and painful despite a series of operations and there was a plan
for yet another surgical procedure, hopefully to get things more
perfect. There had also been an injury to the right forearm which
had now healed but left her with some pain and some limitation of
pronation and supination. Now she had persistent aches worse at
night involving her right 4th and 5th MCP and 2nd and 3rd PIP and
lesser symptoms in the left fingers. Similarly her knees and
ankles were painful and perhaps a bit swollen.
...
In musculoskeletal areas her neck was fairly free in movement
with some discomfort but no distortion. Her back was essentially
normal. Shoulders and elbows were not remarkable. Her right
forearm had perhaps one-half to two-thirds of normal
pronation-supination range. Wrists and several finger joints were
slightly tender and swollen. Range and power were fairly well
preserved. Hips and knees were essentially normal. Feet and
ankles showed minimal swelling and tenderness. She had some
tender muscle points scattered throughout her back fairly
characteristic of fibromyalgia in distribution."
[13] Dr. Frain concluded that:
" ... she has minimal signs of an early
polyarthritis and rather equivocal lab tests but a sed. Rate of
30 and low titre antinuclear antibodies and perhaps anti-DNA.
There is no indication of any vital organ involvement and this
aspect could be treated with non-steroidal agents. They have the
advantage of being potentially helpful for her pain left over
from old trauma and for the fibromyalgic overlay tricyclic
agents, usually thought of as antidepressants, might also be
helpful."
[14] The report forwarded to Dr. Khan by Dr. Cruickshank of
the Pain Clinic provides little assistance other than it
indicates that Maryann has difficulty sleeping and a suggestion
that she take a "little psychology test to see if this will
help us locate anything else".
[15] In a disability tax credit certificate dated March 13,
1996,[3] Dr. Khan
indicated that Maryann's basic activities of daily living,
specifically, walking and mental functions were markedly
restricted. He further indicated that she would be able to walk
using an aid if necessary and was able to think, perceive and
remember using medication or therapy, if necessary. On December
18, 1996, Dr. Khan completed two disability tax certificate
questionnaires, the first of which dealt with Maryann's
cognitive functions. He noted therein that she suffered from
depression, was not able to live independently, but did not need
constant supervision for her personal care activities. He also
observed that she required medication for depression but that her
condition was not controlled thereby in that there was "not
much response".[4] The second questionnaire related to her ability to
walk. Dr. Khan noted that she was confined to a bed "most of
the time" but was able to walk with rest periods, although
in his view, it took an inordinate time to do so at times.[5]
[16] Dr. Khan testified that she had attended at his office as
often as every two weeks and on those occasions, she consistently
complained of pain and he observed that it was difficult for her
to walk into the room, that she needed help to reach the
examining table and even to stand up from the chair. He also
observed that she "will hold her jaw most of the time".
In October 1996, Dr. Khan referred Maryann to Dr. Hanson, a
psychiatrist, with respect to her depressive symptoms. The brief
report submitted to Dr. Khan provides little assistance in the
context of the taxation years in issue or in enabling the Court
to determine the extent of Maryann's disability for purposes
of the relevant sections.
[17] From Dr. Khan's evidence, it would appear that
Maryann's disability relates principally to the pain caused
by her jaw problems and what Dr. Khan described as the
"fibromyalgia pain". The latter, he testified, is
mostly caused by trauma but sometimes by tension and the
treatment for it is generally anti-inflammatory drugs as well as
antidepressants. In her case, the medication prescribed in the
years in question at one stage included morphine, which indicated
to Dr. Khan a substantial degree of discomfort on her part. He
further observed that her condition appeared to be progressively
deteriorating both with respect to the degree of pain she
suffered and the fact that her depression appeared to be getting
worse. Dr. Khan observed that when in pain, Maryann is unable to
do anything and when in his office "she just cries and sits
there".
[18] The issue before me is not whether the Appellant suffers
from the various disorders described. Rather, it is a question of
whether they incapacitate her to the point where she is unable to
perform a basic activity of living as that term is defined
subsection 118.4(1) of the Act. As was observed by Bowman
T.C.J. in Radage v. The Queen,[6]
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 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 provisions must be given a
humane and compassionate construction.
[19] In this case, it is obvious that the primary concerns
were depression and the pain flowing from her injuries and the
related fibromyalgia problem. The Appellant's recitation of
her multiple symptoms and his inability, if not reluctance, to
specifically deal with the taxation years in issue was if
anything, detrimental to his case. It would have been of
substantial assistance to the Court if he had subpoenaed the
physicians who specifically dealt with these symptoms. That is
particularly so with respect to depression which, as a matter of
common knowledge, can be treated with various degrees of success.
Although the Appellant's failure to call all of the available
evidence rendered the task of this Court difficult, the testimony
of Dr. Khan and of Maryann supports the conclusion that she was
all or substantially all of the time, even with therapy and the
use of appropriate medication, unable to perform a basic activity
of daily living, in her case, perceiving, thinking and
remembering. On balance, and not with a good deal of concern, I
have concluded that this appeal should be allowed.
Signed at Ottawa, Canada, this 11th day of June, 1999.
"A.A. Sarchuk"
J.T.C.C.
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