96-188(IT)I
BETWEEN:
DONALD PULLEN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeals heard on October 23, 1997, at Windsor,
Ontario, by
the Honourable Judge A.A. Sarchuk
Appearances
Counsel for the
Appellant:
Danny Branoff
Counsel for the
Respondent:
Shalene Curtis-Micallef
JUDGMENT
The
appeals from assessments made under the Income Tax Act for
the 1992 and 1993 taxation years are dismissed.
Signed at Ottawa, Canada, this 21st day of November, 1997.
"A.A.
Sarchuk"
J.T.C.C.
Date: 19971121
Docket: 96-188(IT)I
BETWEEN:
DONALD PULLEN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Sarchuk, J.T.C.C.
[1] These are appeals by Donald Pullen
from assessments of tax with respect to his 1992 and 1993
taxation years. The Appellant has elected the Informal
Procedure pursuant to the provisions of section 18.1 of the
Tax Court of Canada Act. In computing taxes payable for
each of those years, the Appellant claimed a non-refundable tax
credit in the amount of $719.61. The claim was denied by the
Minister of National Revenue (the Minister) on the basis that the
effects of the impairment in question did not meet the test laid
down in paragraph 118.4(1)(b) of the Income Tax Act
(the Act).
[2] The issue before this Court is
whether in the taxation years in issue the Appellant was
suffering from a severe and prolonged physical impairment, the
effects of which were such that the Appellant's ability to
perform a basic activity of daily living was markedly
restricted.
[3] The essential facts are as
follows. The Appellant is 61 years of age and is now retired. He
was employed by Chrysler Canada until 1987 when his employment
was terminated as a result of his physical disability. He has
been in receipt of a pension from Chrysler since that time.
[4] The Appellant suffers from
osteoarthritis which currently affects his knees, hips, and in
his words, has spread to his spine. He says this condition is
extremely severe particularly in the mornings when it often
incapacitates him to the point that he is unable to get out of
bed to attend to matters of personal hygiene. The Appellant's
complaint focuses primarily on the degree of pain associated with
his condition. He described the pain as "severe and then some
days, it's excruciating". Various medications have been
prescribed by his physician but these "just seem to take a little
bit of the hurt, the edge off the severeness of it. They don't
dissipate it entirely". Other medications either failed to
provide the necessary relief or had side effects which were
unacceptable to him.
[5] It is clear from his testimony
that the pain and discomfort resulting from his condition was
most pronounced in the morning. This was the point of time at
which the medication was most needed to permit him "to be able to
function somewhat normally". However, it is also clear from his
testimony that as the day progressed, mobility improved, in that
"the severeness, the sharpness, the edginess ... sort of
lessens". He testified that he did not see himself "as disabled
... per se" and that he operates "within the pain that I
can stand or withstand".
Conclusion
[6] The deductions in issue may be
claimed where an individual has a severe and prolonged physical
impairment the effects of which markedly restrict his ability to
perform a basic activity of daily living.[1] The nature of the impairment for this
purpose is set out in section 118.4 of the Act. Of
particular import to this appeal is paragraph 118.4(1)(b)
which reads:
118.4(1)(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;
The basic activity of daily living in issue in these appeals
is walking. More specifically, the restrictive factor advanced by
the Appellant is the pain and discomfort associated with
walking.
[7] The evidence adduced suggests very
strongly that at all relevant times the Appellant had the
necessary mobility skills required for independence in everyday
living. He lives alone in what he described as a beach cottage at
R.R. #5, Harrow, Ontario, some 50 kilometres from Windsor. There
is no evidence that he was unable to, or required assistance in
attending to all essential ancillary activities such as preparing
meals, housekeeping, personal care, taking medication and
attending to his pet dog. He testified that his doctors had
recommended exercising in particular walking and that he
attempted to do so subject to the degree of his discomfort.
Although he did testify that on certain occasions the pain "was
so bad that I said to hell with it and I went back home", nothing
was elicited by his solicitor vis à vis the
frequency of this alleged inability to continue the walks. It is
also a fact that he is able to travel from his residence to
attend to his business affairs, to see his doctors, to consult
his counsel with respect to this and other matters, and to shop
for food, provisions and prescriptions. All this indicates a
rather high level of independence of physical function.
[8] In a disability tax credit
certificate dated April 21, 1995 (Exhibit R-1), his doctor
responded yes to the question "Is your patient able to walk,
using an aid, if necessary? (for example, at least 50 meters on
level ground)", to which he added: "Patient able to walk,
however, has daily pain and this limits his ability to walk". In
an earlier certificate dated January 21, 1993 (Exhibit A-1), the
same doctor described the effects of the disabling condition as
"pain limits mobility - permanent problem".
[9] The section pursuant to which the
Appellant would be entitled to claim the deduction was intended
by Parliament, as a matter of policy, to create a high threshold
regarding the level of disability which must be met in order to
qualify. On the evidence before me, I have concluded that this
Appellant does not come within the meaning of the words in
paragraph 118.4(1)(b) of the Act. There is little
doubt that the quality of the Appellant's life was greatly
affected, that his lifestyle was limited, that he was
inconvenienced and on many occasions found it difficult to cope.
However, on the evidence elicited from the Appellant by his
Counsel, I cannot conclude that he was markedly restricted in his
activities of daily living all or substantially all of the
time.
[10] I am aware that the Appellant's
physician noted that he met the eligibility criteria of a
prolonged impairment that markedly restricts all or substantially
all of the time his ability to perform the basic activities of
daily living. However, the testimony elicited from the Appellant
leaves in substantial doubt whether this is an accurate
assessment particularly with respect to the phrase "all or
substantially all of the time". The phrase is not defined.
By reference to standard dictionaries, one sees that "all" means,
inter alia: the whole amount, extent, substance, or
compass of; the whole; all that is possible; the entire number
of, without exception; every. "Substantially" which is used in
the phrase as a modifier means "in substance, or in the main".
There is no mathematical formula by which one can determine what
"substantially all" means in any particular case but it is
reasonable to conclude that it means almost all or essentially
all of the time. On the evidence, the most favourable conclusion
that I can reach is that the Appellant suffers from intermittent
or sporadic bouts of extreme and virtually incapacitating pain.
However, that falls short of establishing the "all or
substantially all" requirement found in paragraph
118.4(1)(b) of the Act. The appeals are
dismissed.
"A.A.
Sarchuk"
J.T.C.C.
Ottawa, Canada,
November 21, 1997
COURT FILE
NO.:
96-188(IT)I
STYLE OF
CAUSE:
Donald Pullen v. Her Majesty the Queen
PLACE OF
HEARING:
Windsor, Ontario
DATE OF
HEARING:
October 23, 1997
REASONS FOR JUDGMENT BY: The Honourable
Judge A.A. Sarchuk
DATE OF
JUDGMENT:
November 21, 1997
APPEARANCES:
Counsel for the
Appellant: Danny
Branoff
Counsel for the Respondent: Shalene
Curtis-Micallef
COUNSEL OF RECORD:
For the Appellant:
Name:
Danny Branoff
Firm:
For the
Respondent:
George Thomson
Deputy Attorney General of Canada
Ottawa, Canada
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