Dubienski
J.T.C.C.
(orally):—
Mr.
Tobin,
due
to
an
accident,
received
an
injury
in
1968
that
developed
into
a
very
severe
injury
and
it
was
followed
by
a
long,
progressive
system
of
treatments.
I
don’t
think
it’s
necessary
for
me
to
go
into
that
at
this
time.
The
result
was
that
he
has
been
suffering
during
this
period
of
time
considerable
pain
and
a
growing
incapacity
to
carry
on
his
life.
This
progressed
until
May
of
1992
and
it
got
to
the
point
where
it
was
necessary
for
him
to
resign
from
work
entirely.
Since
that
time
he
has
tried
all
avenues
of
treatment
and
assistance
and
the
situation
with
regard
to
his
medical
condition
continues
the
same
right
down
to
the
present
time.
And
now
the
situation
has
reached
the
stage
where
the
condition
that
he
finds
himself
in
is
that
he
cannot
walk
any
distance
and
he
only
walks
about
the
house
and
in
the
yard,
and
to
make
certain
that
he
is
stable,
he
uses
a
cane.
With
regard
to
the
rest
of
his
life,
it
centers
around
the
house.
He
does
not
apparently
take
part
in
any
social
activities
outside.
And
the
ability
to
look
after
himself
is
considerably
curtailed.
In
fact,
the
evidence
before
me
is
quite
clear
that
he
cannot
look
after
the
lower
part
of
his
body
whatsoever,
except
that
he
has
received
through
Workmen’s
Compensation
an
aide
to
assist
him
to
put
on
shoes
without
laces,
loafers,
and
to
assist
him
in
pulling
on
his
socks.
But
everything
else
with
regard
to
putting
on
his
underwear
or
his
pants,
etcetera,
has
to
be
assisted
by
his
wife
or
somebody
else.
And
when
it
comes
to
a
matter
of
bathing
himself,
he
cannot
bathe
himself.
He
can,
by
assistance
of
an
apparatus,
get
into
a
shower
and
sit
down
and
shower
himself,
but
he
is
unable
to
actually
bathe
himself
with
soap,
etc.
And
very
often
he
even
needs
assistance
in
looking
after
his
bodily
functions.
The
fact
that
his
mobility
is
curtailed
and
his
ability
to
sit
was
described
by
Mr.
Tobin
but
was
also
visible
to
him
in
Court.
Mr.
Tobin
is
unable
to
use
stairs,
except
a
couple
of
steps
that
he
has
in
the
house.
And
he
apparently
can
now
get
in
and
out
of
bed
because
he
has
a
bed
that
has
an
electrical
attachment
of
some
kind,
but
he
still
needs
medication
for
sleeping
and
for
painkilling.
I
might
just
say
that,
while
it’s
not
part
of
the
evidence,
that
one
of
the
opinions
of
Dr.
Sutherland
was
that
she
paid
emphasis
on
the
fact
that
he
was
still
working
and
was
walking,
and
of
course
in
neither
of
those
cases
was
there
any
evidence
to
show
that
that
was
the
case.
The
law
that
we
are
concerned
with
of
course
is
subsection
118.4(1)
and
the
first
paragraph,
(a),
is
the
first
criteria
that
must
be
met.
That
1s:
118.4(1
)(a)
An
impairment
is
prolonged
where
it
has
lasted
or
been
reasonably
expected
to
last
for
a
continuous
period
of
at
least
12
months.
Well,
it’s
been
agreed
by
everybody
who
is
involved
in
this
case
that
this
is
a
prolonged,
irreversible
condition
that
the
taxpayer
has.
The
second
criteria
that
has
to
be
met
is
that
in
paragraph
(b):
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
requires
an
inordinate
amount
of
time
to
perform
a
basic
activity
of
daily
living.
The
question
is
decided
with
regard
to
a
consideration
of
firstly
the
matter
of
a
basic
activity,
what
is
a
“basic
activity”.
And
they
are
several
items
enumerated.
The
second
one
is
the
one
that
I
think
is
important
in
this
case,
and
that
is
paragraph
(c)(ii),
“Feeding
and
dressing
oneself.”
The
other
activities
pertain
to
mental
activities
and
other
matters.
(d)
referred
to
“Eliminating
(bowel
or
bladder
functions),”
and
to
some
extent
that
has
already
been
referred
to,
that
the
taxpayer
requires
assistance
in
that
case.
With
regard
to
the
activity
of
dressing,
I
have
also
referred
to
that.
The
evidence
in
this
case
is
clearly
different
from
the
general
evidence
that
appears
before
this
Court
and
is
referred
to
in
many
of
the
cases.
In
those
other
cases
they
talk
about
that
the
function
is
able
to
be
performed
but
it
is
painful.
In
this
case
it’s
quite
clear
to
me
that
Mr.
Tobin
cannot
perform
the
self-care
required
for
independent
living
because
of
the
pain
and
the
restricted
manner
in
which
it
affects
his
movement.
The
facts
satisfy
me
that
the
nature
of
the
impairment
contemplated
by
the
Act
has
been
proven.
I
am
not
of
the
opinion
that
although
the
criteria
of
the
Act
is
of
an
inordinate
level,
that
Parliament
did
not
visualize
that
to
qualify
for
a
Disability
Tax
Credit,
that
the
taxpayer
need
be
a
“basket
case”
—
almost,
but
not
that
far
—
and
I’m
satisfied
that
the
impairment
that
Mr.
Tobin
suffers
from
qualifies
him
for
such
a
credit.
I
therefore
allow
the
appeal.
Appeal
allowed.
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