Bowman
J.T.C.C.
(orally):
—
I
think
I’m
in
a
position
to
render
judgment.
This
is
an
appeal
from
reassessments
for
1992
and
1993
of
the
Appellant,
in
which
she
was
denied
the
disability
tax
credit
provided
under
Section
118.3
of
the
Income
Tax
Act.
It
is
one
more
of
these
very
difficult
judgment
calls
that
the
court
has
to
make.
Generally
speaking,
these
matters
come
before
the
Department
of
National
Revenue,
who
certainly
act
in
the
best
of
faith
in
their
attempt
to
administer
the
statute
fairly
and
objectively,
in
the
form
of
an
application
for
a
disability
tax
credit,
which
I
presume
is
filed
with
the
income
tax
return
and
it’s
usually
accompanied
by
a
certificate
by
a
doctor
who
certifies
that
in
his
opinion
the
taxpayer
is
entitled
to
the
disability
tax
credit
because
he
or
she
is
suffering
from
a
prolonged
and
severe
impairment
that
markedly
restricts
the
taxpayer’s
ability
to
perform
certain
activities
of
daily
living
which
are
defined
in
Section
118.4.
These
include
dressing
and
feeding
oneself,
hearing,
seeing,
walking,
elimination,
and
that
sort
of
thing.
It’s
a
pretty
restrictive
section.
In
this
case
I
did
not
have
the
advantage
of
seeing
Mrs.
Noseworthy.
She
was
in
bed
and
could
not
make
it,
a
fact
which
in
itself
seems
to
me
to
speak
volumes.
I
indicated
to
her
representative,
Mr.
King,
that
somebody
would
have
to
testify.
I
am
very
mindful
of
the
recent
decision
of
the
Federal
Court
of
Appeal,
Calwell
v.
R.,
[1996]
1
C.T.C.
1,
95
D.T.C
5615
(F.C.A.),
in
which
they
said
that
the
trial
judge
erred
in
not
pointing
out
to
the
taxpayer
that
he
could
have
subpoenaed
the
doctor
and
in
saying
that
he
was
going
to
pay
little
attention
to
the
doctor’s
testimony.
Well,
I’m
not
going
to
pay
any
attention
to
the
certificates
that
were
filed
and
the
doctor’s
opinions.
I
haven’t
even
read
them.
I
presume
the
doctor
certified
that
in
his
opinion
the
qualifications
for
the
tax
credit
had
been
met.
I
will
base
my
decision
solely
upon
the
testimony
of
Mr.
Noseworthy
who
came
and
testified
as
to
the
situation
in
1992
and
1993
and
the
present.
It’s
not
the
best
evidence
but
under
the
informal
procedure
I
don’t
think
I
am
obliged
necessarily
to
employ
such
evidentiary
rules
as
the
best
evidence
rule.
He
was
certainly
in
a
position
to
testify
of
his
own
knowledge
and
not
by
hearsay
about
his
wife’s
condition,
and
I
must
say
that
from
what
I
could
tell,
and
he
is,
after
all,
75
years
of
age
and
a
rather
good
witness
but
his
memory
is
going
a
bit.
From
what
I
could
see,
his
wife
is
in
bad
shape.
She’s
about
67
years
of
age,
she
hasn’t
worked
since
1986.
She
suffers
from
severe
pain.
Back
and
neck
problems
are
basically
the
problem
that
she
has.
To
say
that
she
has
difficulty
walking
would
be
to
understate
it.
She
can
walk
short
distances
on
“good
days”,
and
she
can’t
get
out
of
bed
on
bad
days.
The
good
days
may
be
two
days
a
week.
Today
must
have
been
a
bad
day
because
she
couldn’t
make
it
in.
He
has
to
help
her.
She
can’t
go
outside
to
go
for
a
walk
at
all
without
him.
It
takes
her
an
inordinate
length
to
go
even
to
the
drug
store.
The
drug
store
was
one
block
away
which
shouldn’t
take
more
than
five
or
ten
minutes.
It
takes
her
upwards
of
half
an
hour.
One
time
he
testified
that
she
had
walked
down
to
the
drug
store
with
him
but
she
couldn’t
make
it
back.
She
had
to
sit
on
the
ground
and
he
had
to
go
and
get
the
car
for
her.
He
basically
has
to
do
the
cooking
in
the
house.
That
in
itself
isn’t
determinative
because
of
the
exclusion
in
the
concluding
parts
of
118.4,
but
I
find
as
a
fact
that
it
takes
her
an
inordinate
amount
of
time
to
walk
and
substantially
all
of
the
time
she
can’t
even
walk
at
all.
I
appreciate
that
substantially
all
is
a
term
of
some
elasticity.
One
judgment
that
is
referred
to
said
that
“all
or
substantially
all,
all
meant
almost
all
of
the
time”.
Well
I
think
if
a
person
has
to
stay
in
bed
five
out
of
seven
days,
that’s
substantially
all
of
the
time.
Also
of
course,
there
was
the
fact
that
counsel
quite
fairly
pointed
out
that
she
might
have
been
able
to
use
a
walker.
Mr.
Noseworthy
said,
yes,
she
could
have
but
she
didn’t.
I’m
not
frankly
prepared
to
find
that
this
answer
is
determinative.
I
dare
say
she
could
have
but
I
don’t
think
there’s
any
reason
to
believe
that
she
would
have
been
able
to
walk
any
better.
She
might
still
have
been
in
danger
of
falling
down,
a
fact
that
I
believe
prevailed
in
1992
and
1993.
Her
condition
appears
to
have
worsened
somewhat
over
the
years
but
as
I
understand
Mr.
Noseworthy’s
testimony,
she
was
still
in
substantially
the
same
bad
shape
in
1992
and
1993
and
indeed
has
been
in
that
shape
for
quite
a
number
of
years.
Also
there’s
the
question
of
her
dressing
herself.
Sometimes
he
has
to
dress
her.
That’s
even
on
the
good
days.
On
the
bad
days
I
guess
she
doesn’t
get
out
of
bed
so
he
doesn’t
dress
her
at
all.
Sometimes
she’s
capable
of
dressing
herself
but
it
takes
her
quite
a
while.
Frankly
I
think
that
Mrs.
Noseworthy
is
in
worse
shape
that
the
preceding
case
that
I
just
heard
in
which
I
rendered
judgment
in
favour
of
Mr.
Lawlor.
I
mentioned
in
the
previous
case
and
I
think
I
should
mention
it
again,
the
approach
that
I
take
in
these
disability
tax
cases.
The
statute
is
very
restrictive.
The
tests
have
been
narrowed
even
more
drastically
with
the
recent
amendments.
Yet
I
think
it
is
important
that
this
court,
who
for
the
first
time,
either
sees
the
taxpayer
or
has
some
appreciation
of
the
human
aspects
of
disabled
people,
that
we
approach
it
to
the
extent
that
we
can
with
a
measure
of
compassion
and
understanding.
I
say
this
without
meaning
in
any
way
to
be
critical
of
the
Department
of
National
Revenue.
They’ve
got
their
job
to
do
but
I
have
mine
too.
I
think
that
this
is
consistent,
not
only
of
my
own
view
of
the
matter,
but
I
believe
it’s
consistent
with
the
decision
of
the
Court
of
Appeal
in
Taylor
which
dealt
with
an
earlier
version
of
the
statute
of
course.
As
I
mentioned
to
Mr.
Bundy
in
the
course
of
his
very
able
argument,
these
are
always
tough
judgment
calls
but
in
this
one
I
feel
that,
in
the
interest
of
giving
effect
to
what
I
believe
to
be
the
object
and
spirit
of
this
section
and
of
giving
effect
to
what
I
believe
to
be
the
humane
and
compassionate
approach
that
we
should
take
in
these
cases,
it
is
in
the
interest
of
justice
that
the
appeals
be
allowed.
The
Appellant
is
entitled
to
her
costs
if
any.
When
I
say
costs,
if
any,
you’re
not
entitled
to
a
counsel
fee
because
you’re
not
a
lawyer
but
there
may
be
some
costs
that
she
has.
I
don’t
know
what
they
are,
disbursements
anyway.
Thank
you.
Upon
concluding
at
1:34
p.m.
Appeals
allowed.