Date: 20000717
Docket: 1999-5029-IT-I
BETWEEN:
JOHN R. LEROUX,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Bonner, J.T.C.C.
[1]
This is an appeal from an assessment of income tax for the
Appellant's 1997 taxation year. By the assessment the
Minister of National Revenue (the "Minister")
disallowed the Appellant's claim to a tax credit under s.
118.3 of the Income Tax Act.
[2]
The Appellant made his claim on the basis that he had a severe
and prolonged physical impairment in the form of heart disease.
The effect of the disease was to markedly restrict his ability to
perform a basic activity of daily living, that is to say his
ability to walk.
[3]
The Minister's assessment rested on the following
finding:
"a)
the Appellant was not markedly restricted in any basic activities
of daily living, including walking, all or almost all of the
time, even with the use of aids, devices, medication or
therapy;
..."
[4]
The following provisions of the Income Tax Act are of
immediate relevance:
"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) in the case of
(i) a sight impairment, a medical doctor or an
optometrist,
(ii) a hearing impairment, a medical doctor or an
audiologist,
(iii) an impairment with respect to an individual's
ability in feeding and dressing themself, or in walking, a
medical doctor or an occupational therapist,
(iv) an impairment with respect to an individual's ability
in perceiving, thinking and remembering, a medical doctor or a
psychologist, and
(v) an impairment not referred to in any of subparagraphs (i)
to (iv), a medical doctor
has certified in prescribed form that the impairment is 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.
...
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 is 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."
S. 118.3(1)(a.2) was amended in 1998. The change is not
material for present purposes.
[5]
The sole issue in the appeal is whether the factual finding on
which the assessment rested has been shown on the balance of
probabilities to be wrong. In my view it has.
[6]
The Appellant was the only witness at the hearing of the appeal.
He testified that in 1996 he had two heart attacks. He produced a
diagram of the human heart on which his physician had indicated
the extent of the damage to the heart. That damage took the form
of partially and totally plugged arteries and diseased tissue.
The Appellant testified that his cardiologist had told him that
he was totally disabled[1] and unable to work again. The Appellant has been
taking drugs as prescribed by his medical advisors to alleviate
breathing and blood pressure problems. The Appellant states that
in 1997 he was able to walk only very slowly and for short
distances. He found and still finds that climbing only six to
eight stairs requires him to rest. If he exercises more
vigorously he suffers from angina and requires nitro-glycerine.
The Appellant was cross-examined on the distance which he was
able to walk during the year in issue. His estimate is that he is
and was unable to walk much more than seventy-five feet without
resting.
[7]
He has submitted to a cardiac stress test. He stated that he
didn't last long on the treadmill, a minute and a half
possibly, at a slow pace.
[8]
Two disability tax credit certificates were entered in evidence;
one dated April 29, 1997 signed by the Appellant's family
physician, Dr. Mahaney, and a second dated March 26, 1998 signed
by a Dr. MacDonald, the Appellant's cardiologist.
[9]
In the earlier form the physician indicates that the Appellant
suffers from severe coronary artery disease, that he easily
develops angina and can easily go into CHE[2]. The physician's comment
continues by indicating that this restricts the Appellant from
doing daily activities generally. He then proceeds to answer yes
to question 2 "Is your patient able to walk, using an aid if
necessary?" Later in the form he gives a "no"
answer to question 9, "Is the impairment severe enough to
restrict the basic activity of daily living identified above, all
or almost all of the time, even with therapy and the use of
appropriate aids and medication?"
[10] The
second of the disability tax credit certificates indicates that
the Appellant suffers from an "inoperable three vessel
coronary artery disease with LV[3] dysfunction. In answer to question 2,
related to the ability of the patient to walk, the doctor has
ticked the "yes" box but notes that the Appellant may
experience angina. In answer to question 9, whether the
impairment is severe enough to restrict the basic activity of
daily living identified above, the physician has placed an arrow
through both the yes and the no boxes and added "at
times severely limited by angina". It will be noted that
this form was completed shortly after the close of the 1997
taxation year and I am satisfied that it reflects
Dr. MacDonald's view of the situation as it existed
during that year. The answer to question 9 therefore meets the s.
118.3(1)(a.2) requirement for a certificate[4].
[11] The
Appellant bases his claim on subparagraph 118.4(1)(c)(vi),
inability to walk. The disability tax credit provisions of the
Act must be interpreted in a way that is humane and
compassionate.[5]
In my view the Appellant's heart condition is the basis for
his subjective but sincere belief that any exertion, even slight,
may bring on an angina attack or, worse still, a full-blown and
possibly fatal heart attack. That belief or apprehension
continuously governs and limits the Appellant's ability to
bring himself to walk any meaningful distance. That is how I
interpret the evidence and Dr. MacDonald's attempt to grapple
with the rather inflexible form of the disability tax credit
certificate. The finding on which the assessment is based is
therefore wrong. My conclusion is supported by my observation of
the Appellant as he moved about the courtroom at the time of the
hearing of this appeal.
[12] The
appeal will be allowed and the assessment referred back to the
Minister for reassessment on the basis that the Appellant is
entitled to the credit in issue.
Signed at Ottawa, Canada, this 17th day of July 2000.
"Michael J. Bonner"
J.T.C.C.
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