Wood v. R., [1996] 1 CTC 2027 (Informal Procedure)

Bell J.T.C.C. (orally):—: You understand I am required to be technical here. When I look at the basic activity of daily living, and let me go back to paragraph 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…

and the word “walking” is there.

It is a bit difficult to persuade me that in August of 1991 all of these conditions existed. You are using hindsight and I understand that is a natural thing to do to colour your distress and your condition at that time. Do you understand what I am saying?

MS. WOOD: It says mentally and physically and physically is no different.

HIS HONOUR: I understand that. That is what has happened through the passage of time. You can look back and see that you have not improved.

Paragraph 118.4(1)(a) says:

..the impairment is prolonged where it has lasted, or may reasonably be expected to last, for a continuous period of at least 12 months;

And where it says “may reasonably be expected to last...” and I have something on a certificate that says, as Mr. Bourgard points out “probably permanent”. I don’t know whether I can be driven to say that can reasonably be expected to last that amount of time, because that is a qualification.

This is gratuitous, but if I were hearing your case in 1992 I expect the certificate would be a bit different for 1992.1 expect my reaction would be different. I don’t see enough evidence here to persuade me, and I am bound to look at these words in the Act, that for 1991 that impairment may reasonably be expected to last for at least 12 months.

MS. WOOD: I feel it is probably permanent.

HIS HONOUR: I understand that because you have said it and you have said it very well and you want that to be construed as meaning “reasonably be expected to last for at least 12 months”.

I am not at all sure that we have evidence of an impairment as it is described with respect to basic activities. You had difficulty walking in 1991 but that doesn’t mean so much up to the end of that year. That is the point I am trying to make. We are talking about 1991. It is hard for you to erase the subsequent period from your mind. For that y ear...and I have to listen to what Dr. Sutherland says. She has treated a lot of these cases. Yours is unusual because most of them she said don’t fall into the chronic back pain situation.

So I am not going to be able to allow your appeal for 1991 and I appreciate how much work you have done for it. I hope that work is of assistance to you with respect to subsequent years. I don’t know what the Minister’s position is. If I were in his boots I might be saying something to his client. I can’t require him to or expect any undertaking or even comment from him but that is what I would be thinking for subsequent years, having regard to the experience that you have had in that time.

Do you have any more questions? Because I can’t really explain it better than that. I want you to understand. I don’t have the ability to use my discretion apart from saying my judgment is that what he said is different from what it appears to me to be. I can’t say regardless of what the rules set forth I can help you. I am not persuaded when I listen to the evidence, including what Dr. Sutherland says. Your doctor signed this document, signed this form, altered the form. He didn’t check “Permanent” or “Temporary”. He changed something and checked that. I am simply not persuaded by that because it indicates a lack of certainty of assessment on his part for what your condition was at that time. I suspect that will be removed in subsequent years.

I am also influenced by the fact that low back mechanical pain is something that mostly does not evolve into chronic pain, according to Dr. Sutherland. I have to listen to her because she is the doctor and no one else in this room is. When that starts out, I forget the period she referred to, four to six months within which the condition is righted. That did not turn out to be the case.

MS. WOOD: She did say that a chronic back problem cannot be diagnosed

HIS HONOUR: That is true. She said she did not know there was a chronic back problem in 1991. That is why I say your case will be different or should be different in 1992. In these circumstances I am unable to grant you relief that you seek for 1991.1 wish you the best of luck in your motor skills and in your own life. You are a courageous woman. I wish you luck in the continued pursuit of this relief if you continue so to do.

Appeal dismissed.