Stewart v. R., [1996] 1 CTC 2394 (Informal Procedure)

Rowe D.J.T.C.C. — The appellant appeals from an assessment of income tax for his 1992 taxation year arising from his disallowed claim for a disability tax credit under section 118.3 of the Income Tax Act (the “Act”).

The appellant testified he lives in Victoria, British Columbia and is retired. On February 22, 1989 he had surgery to remove cancer of the bowel which resulted in a colostomy. He stated that he wears an appliance to receive waste discharged through a stoma and that he often empties the bag between 15 and 30 times per day. He indicated that he is prone to an occurrence known as “dumping” whereby feces, paste-like in consistency, is expelled, under pressure, into the bag. He explained that the flow of waste is unceasing and that “it is like standing on one end of a tube of toothpaste”. When he is in a sitting position, that posture puts pressure on his body at the beltline where the stoma is situated. The pressure on the bag undermines the integrity of the seal. His stoma is irregular and heat causes the adhesive to break down and the appliance will then separate from the skin. He is very conscious of his diet but finds that, although he is retired and therefore spends a lot of time at home, he must visit the bathroom 8-10 times before noon each day in order to empty the bag.

When away from home, at all times he is aware of bathroom locations and carries a bottle of water to flush out the bag. He wears a clip on the bag and in the toilet he opens it up and washes it with water before re-attaching it. He has consulted an enterostomal therapist and uses all of the latest devices and appliances. A major problem is excessive unpleasant odour. He attempts, as much as possible, to avoid medications. He estimated that it took three to five minutes to clear the bag of contents. The main problem is in locating a bathroom when away from home in places such as shopping malls or other public places. He requires sanitary facilities in order to properly dispose of the waste material and to clean the bag. He sometimes used, and still may use, 10 different bags per week and may suffer from the effects of leakage twice on some days should the bag separate from his skin. However, in his response to the questionnaire - Tab D of Exhibit R-1 - he stated he “must change appliance on average every two days depending on activity, heat travel and social concerns”. Dr. Zedel in preparing the certificate - Tab C of Exhibit R-l - noted “requires change of colostomy every 2-3 days”. The appellant knows certain persons with a colostomy who have almost a normal bowel movement and have little or no problems with the appliance. In his situation, he finds perspiration affects adhesion of the bag. He estimated that he would empty and clean his appliance more than 15 times per day.

In cross-examination, the appellant stated he arises at 5:00 am. From time to time he suffers a blockage which appears to be caused by having eaten certain foods. His doctors cannot discover the reason for his system suddenly “dumping” fecal matter into the bag. His physician, Dr. Zedel, completed the Disability Tax Credit Certificate, and he thinks he is Dr. Zedel’s only ostomy patient. He walks, plays golf and has other general interests but does not travel much. As for the appliances available on the market, he has tried all of the brands and deals at McGill & Orme Ltd., a large, well-known medical supplier in Victoria. He stated that his major difficulty is created by the excoriation of the skin at the stoma site and it stings when he cleanses the area with alcohol. He also uses a paste around the stoma because of its irregular shape in order to make a better contact and also to sooth the skin. As opposed to an ileostomy which flows constantly, that should not be the case with a colostomy.

Dr. Eleanor Sutherland is a medical practitioner and was permitted to give opinion evidence in her capacity as a medical expert. Filed as Exhibit R-l was her Expert Report. Dr. Sutherland stated she works with doctors and nurses comprising a Medical Advisory Group which provides advice to the Minister of National Revenue regarding claims by taxpayers for disability tax credits. In the course of forming an opinion she examined the disability certificate prepared by Dr. Zedel and reviewed a questionnaire which had been completed by the appellant. In her experience, a colostomy usually discharges once per day due to the fact a lot of the large bowel is present. She stated that she considered whether the appellant was a person able to handle properly management and maintenance of the appliance.

In cross-examination, Dr. Sutherland agreed there was no space on the form in which the frequency of emptying a bag could be noted. She acknowledged that the questionnaire did not adequately deal with that aspect. Her experience with the “dumping” syndrome described by the appellant was when dealing with patients who had surgery to remove a gall bladder.

In argument, agent for the appellant urged the Court to follow the decision of the Honourable Judge Hamlyn in Brookshaw v. R. (sub nom. Brooks haw v. Canada), [1994] 2 C.T.C. 2360 (T.C.C.) and allow the appeal.

Counsel for the respondent submitted that each case must be looked at in the context of its own facts and that the evidence of the medical expert, Dr. Sutherland, supported the decision of the Minister of National Revenue to disallow the appellant’s claim for a tax credit.

During the same day, two other appellants each separately presented evidence in furtherance of their own appeals. All three appellants were represented by the same agent and counsel for the respondent conducted all three appeals. Dr. Sutherland testified in each case, after having prepared a report stating her opinion as a medical expert. All of the appellants represented a common front in that they believed each of them, standing alone, or as a member of a group of people - ostomates - with a common problem should qualify for the disability tax credit permitted under the Act. The nature of the medical problems and its effect on each individual, in the context of the relevant provisions of the Act, requires an independent examination of the evidence followed by an analysis of the applicable jurisprudence. Accordingly, I indicated to each appellant that his or her appeal would be the basis of separate reasons for judgment but that the analysis, after taking into account particular facts, would be based on the existing law and would, for the most part, be applicable to all of their appeals.

The relevant provisions of the Act are subsections 118.3(1) and 118.4(1). In the case of Landry v. R. (sub nom. Landry v. Canada), [1995] 1 C.T.C 2030, the Honourable Judge Lamarre Proulx, Tax Court of Canada, considered the appeal of a taxpayer whose two children suffered from a severe congenital anaemia. Judge Lamarre Proulx undertook an analysis in which she considered the historical development of the legislation and set out in the course of her reasons, the provisions of the Act under discussion which are the same as in the within appeal. It is appropriate to quote extensively from that judgment, beginning at page 2034, as follows:

The children’s parents argued that their children were manifestly limited in their activities of daily living by a haemoglobin rate which was always half, and sometimes less, the normal haemoglobin rate, which meant that their children were always completely exhausted and could not participate in any sports, and were often ill. The parents wanted to know whether being on the point of death was necessary in order to obtain the credit in question.

To gain a better understanding of the purpose of the legislation concerned and in particular the meaning to be given to the expression ‘activities of daily living’, I referred to the historical context in which it was adopted. While in statutory interpretation reference is not made to parliamentary history to determine what Parliament intended, and the courts simply look at the legislation, it is nevertheless possible to consult that parliamentary history to determine the objectives of Parliament and the evils it sought to correct.

In the years at issue, namely 1989 and 1990, subsection 118.3(1) of the Act read as follows:

(1) Where

(a) an individual has a severe and prolonged mental or physical impairment that has been certified as such in prescribed form by a medical doctor or, where the impairment is an impairment of sight, by a medical doctor or an optometrist,

(b) the individual has filed for a taxation year with the Minister the certificate described in paragraph (a), and

(c) no amount in respect of remuneration for an attendant, or care in a nursing home, by reason of the mental or physical impairment of the individual is included in calculating a deduction under subsection 118.2(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 $3,236

where A is the appropriate percentage for the year.

Subsection 118.4(1) of the Act read as follows:

118.4(1) For the purposes of sections 63, 118.2 and 118.3,

(a) a person shall be considered to have a severe and prolonged impairment only if by reason thereof he is markedly restricted in his activities of daily living and the impairment has lasted or can reasonably be expected to last for a continuous period of at least 12 months; and

(b) the Minister may obtain the advice of the Department of National Health and Welfare as to whether a person has a severe and prolonged impairment.

The scope of this provision is relatively new. Before 1986 the deduction was allowed to persons who were totally blind or confined to a bed or a wheelchair for long periods every day as the result of an illness, injury or infirmity and who had not applied for any deduction in respect of remuneration for an attendant or care in a nursing home by reason of their blindness, illness, injury or infirmity.

The pre-1986 deduction is discussed as follows in Canadian Taxation, Hansen, Krishna and Rendall, chapter 10, titled ‘Deductions for Personal Expenditures’ and written by Prof. Joost Bloom, at page 496:

The deduction can be claimed by anyone who was totally blind at any time during the year or necessarily confined to a bed or wheelchair for a substantial period each day throughout the year... The deduction can only be claimed if no deduction was made for an attendant or for care in a nursing home. The Carter Commission recommended abolition of this deduction on the ground that it was irrational, but it was retained for compassionate reasons.

According to a footnote on page 496, the deduction was not logical because a deduction should only be allowed to the extent that an expense had been incurred. In its 1969 White Paper (pages 19 and 20), however, the government decided to retain the deduction for compassionate reasons.

In 1986 this deduction was altered so as to extend its scope. The following is stated in Budget Papers of May 23, 1985, at page 56:

A deduction from taxable income - $2,590 in 1985 - is allowed for a disabled person, currently defined as a person who is blind at any time in the year or confined to a bed or wheelchair for a substantial period of time each day. This definition does not cover many severely disabling conditions which do not result in confinement to a bed or wheelchair.

A new definition, applicable for the 1986 and subsequent taxation years, to be administered by medical experts in the Department of National Health and Welfare, has been developed which will include all severely disabled Canadians. It will cover persons with disabling conditions such as blindness, severe cardio-respiratory failure, mental retardation or mental illness, profound bilateral deafness, and functional impairment of the neuro- or musculo-skeletal systems, who also deserve tax assistance. Those administering the general medical definition will assess eligibility by evaluating information provided by the disabled person (or by his or her representative). If the effect of the disability is to markedly restrict the person in activities of daily living and if the disability has lasted or can be expected to last for a continuous period of at least 12 months, the person will be issued a disability certificate and will be eligible for the tax deduction. The new definition is compatible with the goal of independent living for disabled persons set out in the Report of the Special Parliamentary Committee on the Disabled and Handicapped.

The legislation adopted pursuant to this proposed budgetary measure was amended in the same year with respect to the person issuing the certificate. It is not the Department of Health as initially proposed which is to issue the certificate, but any physician holding a licence to practise. However, Parliament gave the Minister the right to seek the advice of the Department of Health as to whether a person has a severe and prolonged impairment.

This is what we find regarding the proposed amendment to paragraph 110(l)(e) at page 41 of the Technical Notes to a Notice of Ways and Means Motion, dated October 1986:

Paragraph 110(l)(e) is also amended for 1986 and subsequent years to provide that the certification to the effect that an individual has a severe and prolonged mental or physical impairment will be made by a medical doctor licensed to practise under the laws in Canada or of the place where the taxpayer resides and not by the Department of National Health and Welfare as initially proposed. However, that Department may give advice to the Minister of National Revenue as to whether, in a particular instance, an individual has a severe and prolonged mental or physical impairment.

Paragraph 6 of Interpretation Bulletin IT-519 restates the criteria described in the Budget Papers of May 23, 1985:

6. Paragraph 118.4(l)(a) provides that for the purposes of the medical expense and the disability tax credits under sections 118.2 and 118.3, a person is considered to have a severe and prolonged impairment only if, by reason of such impairment, the person is markedly restricted in the activities of daily living and the impairment has lasted or can reasonably be expected to last for a continuous period of at least 12 months. Such persons would include those with disabling conditions such as blindness, severe cardiorespiratory failure, severe mental impairment, profound bilateral deafness and functional impairment of the neuro- or musculo-skeletal systems. Additional information about the meaning of “severe” and “activities of daily living” is provided in prescribed form T2201, copies of which are available at District Taxation Offices. The individual’s impairment must be certified on form T2201 by a medical doctor or, where the impairment is one of sight, by a medical doctor or an optometrist (see 3 above). The certified form should be attached to the Individual Income Tax Return (form Tl). Paragraph 118.4(l)(b) provides that the Department may obtain the advice of the Department of National Health and Welfare as to whether a person has a severe and prolonged impairment.

In 1991 Parliament felt the need to incorporate in the Act what is meant and not meant by the phrase “activities of daily living”:

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 it has lasted, or may 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.

The explanation of this change is given in the Budget, a document dated

February 26, 1991, at page 144:

As noted above, to claim the disability tax credit, a person’s activities of daily living must be markedly restricted by reason of a physical or mental impairment. Currently, the terms “markedly restricted” and “activities of daily living” are not defined in the Income Tax Act but rather are set out in administrative guidelines published by Revenue Canada. The current guidelines will be included in the law so as to ensure greater fairness and uniformity in their interpretation and application.

The expression “markedly restricted” will continue to mean that, despite the use of medication, therapy or devices, the effect of the impairment is to greatly restrict the performance of activities of daily living. In addition, the expression “activities of daily living” will continue to refer to basic functions such as seeing, hearing, speaking and walking, but not working or social, recreational and housekeeping activities. The codification of these definitions in the legislation does not change the existing eligibility criteria.

As already mentioned, the provision in the Act granting tax relief for a severe and prolonged physical impairment was enacted in 1986. At that time it was a deduction and not a tax credit, but that is not relevant for the purposes of the point at issue.

Before 1986 the deduction was allowed to persons who were totally blind or confined to a bed or a wheelchair for most of the day. This requirement was amended in 1986 to require severe and prolonged physical impairment certified by a practising physician. The Minister could have recourse to the expertise of Department of Health physicians to determine whether such an impairment actually existed. This new definition was said to be in keeping with the objective of an independent life for handicapped persons. Severely handicapped persons were entitled to tax relief without having to remain confined to a bed most of their lives. The Department of Health gave the words “activities of daily living” the meaning of the fundamental activities of daily life.

In 1991 Parliament amended the Act to describe fundamental activities: the English version uses the word “basic”, the French the word “courant”. Use in French of the adjective “courant” to qualify what is in English called “basic” may appear surprising. In any case, the description of “activités courantes” gives the word “courant” the meaning of “basic”.

The phrase “activities of daily living”, as it stood in 1989 and 1990, might for non-medical professionals have included engaging in sports, rapid walking, working and other things which are everyday activities for many people. However, a meaning must be given to the legislation, which provides that the Minister may consult the Department of Health as to whether there has been a serious and prolonged impairment in the conduct of activities of daily living. The Department of Health had defined them as activities essential to daily living. As the Act provides for a reference by the Minister to the Department of Health to determine the seriousness of the impairment and as it appears that this definition is consistent with the wording, I do not see how I could alter its meaning. The provision speaks in French of “activités de vie quotidienne” and not “activités de la vie quotidienne”. I think that this indicates a difference and that the wording places the emphasis on activities necessary to everyday life. By using the words “activities of daily living” the English version is also consistent with this meaning. This meaning is also consistent with the historical context which extended the effect of the legislation from the bedridden handicapped to the seriously handicapped who were able and willing to live with a certain independence.

Although one can only have sympathy and admiration for the appellant’s children, their physical impairment, which allows them to perform the fundamental activities of daily living, does not have the serious nature of the physical impairments which are the subject of the legislation. Therefore, the Minister properly disallowed the tax credit sought.

The appeals are dismissed.

In Brooks haw, supra, Judge Hamlyn, Tax Court of Canada allowed the appeal of a taxpayer who suffered from Crohn’s disease. The reasons are brief and are as set out, in full, below:

This is an appeal for the 1992 taxation year heard under the informal procedure.

Facts

The appellant has Crohn’s disease and had an ileostomy resulting in loss of control over her bowel functions. She has had four surgeries related to the ileostomy. She claimed a credit for physical impairment under subsection 118.3(1) of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the “Act”). Her claim was disallowed for the 1992 taxation year.

Issue

The issue to be decided is whether the taxpayer qualifies for a credit for physical impairment under subsection 118.3(1).

The respondent’s position

In this case, the taxpayer obviously has problems eliminating. However, the Department of National Health and Welfare has reported the appellant is not markedly restricted in the activities of daily living. It states that the appellant is able to perform the basic activities of daily living with the use of appropriate devices or medication or therapy and that it does not require an excessive amount of time.

Analysis

The appellant has no control over her bowel function and is required, on a continuous and constant basis, around the clock to attend to her elimination needs by attending at washrooms and emptying the bag. Moreover, she indicated that, from time to time, the bag overflows resulting in very unpleasant consequences. In the words of the medical doctor presented on behalf of the respondent the affliction of the appellant is a “hard and rough disease”.

In order to claim a credit for physical impairment under subsection 118.3(1) of the Act, an individual must have an impairment such that the effect of it would markedly restrict the individual’s ability to perform a basic activity of daily living. Section 118.4 confines “markedly restricted” to situations where all or substantially all of the time, even with therapy and the use of appropriate devices and medication, the individual is unable (or requires an inordinate amount of time) to perform a basic activity of daily living. Subparagraph 118.4(c)(v) states that eliminating (bowel or bladder functions) is a “basic activity of daily living”.

The question is whether having to constantly manage her condition and relieve her bowel 10 to 20 times a day would constitute an “inordinate amount of time” to perform this basic activity of daily living.

From The Oxford English Dictionary, Second Edition, Volume VII (Oxford University Press, 1989) at page 1003, “inordinate” means:

1. Not ordered; devoid of order or regularity; deviating from right or rule; irregular, disorderly....

2. Not kept within orderly limits, immoderate, intemperate, excessive....

and from The Oxford English Dictionary, Second Edition, Volume I (Oxford University Press, 1989) at page 411 “amount” means:

1. The sum total to which anything mounts up or reaches:

a. in quantity....

b. in number...

2. The full value, effect, significance, or impott...

3. The quantity or sum viewed as a total....

[Emphasis added. I

Conclusion

The conclusion is therefore the total amount of time she spends performing her bowel functions (i.e., the number of times she has to perform the function multiplied by the duration that it takes her to perform this function each time as well as the constant necessary monitoring) is irregular and requires an excessive amount of time to manage. All of the appellant’s life’s decisions and actions evolve around her disability. Thus, the effects of the impairment are such that the appellant’s ability to perform this basic activity of daily living is markedly restricted. Therefore the appellant falls within the provisions of paragraph 118.4(b).

Decision

The appeal is therefore allowed and the assessment is referred to the Minister of National Revenue for reconsideration and reassessment on the basis that the appellant is entitled to a credit for physical impairment under section 118.3 of the Act.

In the case of Keating v. R. (sub nom. Keating v. Canada), [1995] 1 C.T.C. 2202, 95 D.T.C. 352, Judge Taylor, Tax Court of Canada, dealt with an appeal of a taxpayer whose child had suffered since birth from cerebral palsy. The Minister of National Revenue had disallowed the taxpayer’s claim for a mental or physical impairment tax credit, based on the child’s condition, on the basis the disease had not caused the child to be markedly restricted in his activities of daily living. After referring to paragraph 118.4(l)(d) of the Act, at page 2207 (D.T.C. 355) of his reasons, Judge Taylor stated:

I am grateful that in this appeal at least, I am not called on to examine the rationale which would place “working, housekeeping or a social or recreational activity” at some level, lower than “basic activity of daily living” for qualification, as outlined in paragraph 118.4(l)(d) of the Act. In the noble desire to eliminate as much as possible any unwarranted claims under this paragraph, it appears to have been a very difficult task for the drafters of the legislation to avoid excluding deserving taxpayers at the same time. One might easily see an overzealous devotion to limitations in this minor deduction section, which might well be more acclaimed, at least by me, if dedicated to a broader and more productive range of possible deductions under the Act.

I am sure that there might be a range of opinion — both medical and legal on the meaning of the term “markedly restricted”, but it should apply to a child who is unable to get out of bed himself, unable to attend to the most elementary personal functions himself, unable to dress himself, or change his clothing himself, and is in steel braces on his legs day and night — short braces during the day to allow some movement, and longer braces at night to ensure that the limbs do not further atrophy to whatever degree it can be prevented. If this child’s condition does not warrant the claim made by his father of “markedly restricted”, I am not sure the degree of such restriction of daily routine which must be demonstrated in order to warrant such a deduction. The parents deserve commendation and moral support, but that should not be a factor in deciding such an issue. However, I would be remiss, on a human level, if I did not point out that these were among the most dedicated, and least complaining parents I have ever seen even when faced with such circumstances. The purpose of the provisions of the Act under review, as I understand, would be to compensate the care providers in some measure for the direct cost, time and effort required of them to assist their son in having at least a small measure of reasonable living standard. I doubt that any “generous” interpretation of the Act is required for the determination of this appeal, but if needed I would quote from a recent signal judgment of the Federal Court of Appeal - Jastrebski v. R. (sub nom. Jastrebski v. Canada), [1994] 2 C.T.C. 136, 94 D.T.C. 6355:

Taxing statutes are to be interpreted in the same manner as other statutes. The Interpretation Act, R.S.C. 1985, c. I-21, applies to the Income Tax Act. According to section 12 of the Interpretation Act, the Income Tax Act is deemed remedial and should be given “such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”. The strict construction of taxing provisions has been set aside in favour of the plain meaning rule which is applied purposively (Stubart Investments Ltd. v. R. (sub nom. Stubart Investments Ltd. v. The Queen), [1984] 1 S.C.R. 536, [1984] C.T.C. 294, 84 D.T.C. 6305). One must look to the purpose of a provision, therefore, and determine the plain meaning of the provision in light of that purpose.

The appeals are allowed, and costs are to be awarded to the Appellant, if applicable.

The Honourable Judge Kempo, Tax Court of Canada in the case of Ratzlaff v. R. (sub nom. Ratzlaff v. Canada), [1995] 1 C.T.C. 2927, considered the provisions of section 118.3 as it pertained to the taxpayer who had a colostomy and evacuated his bowel into a bag or pouch. Judge Kempo referred to the reasons of Judge Hamlyn in Brookshaw, supra, and, at page 4, concluded her reasons in this manner:

Through the exercise of a daily morning routine and dietary restrictions, Mr. Ratzlaff appears to have employed what I would call reasonable management of his impairment. He has not shown that any irregular events that may otherwise have disturbed that routine were so frequent or excessive that they made any established routine or predicability connected with bowel elimination excessively time consuming. A one and one-half hour period of time during each day as a minimum does not strike me as being an inordinate or excessive amount of time over a 24-hour day, nor does the addition thereto of 10 to 20 minutes twice a day for five out of seven days convert the overall time to being excessive.

Conclusion

There is little doubt that Mr. Ratzlaff s bowel incontinence has impacted upon the quality of his life in that some lifestyle choices may have been either limited, compromised, inconvenienced or even obviated.

Situations such as these are difficult, but each case must depend on its own facts. While I have the greatest of sympathy for the Appellant, I do not find marked restriction has been established in relation to his performance of his basic activity of daily living.

It does not assist the Minister of National Revenue’s position that the appellant in the within appeal is now retired and able to spend a lot of time at home or that he is able to play golf and participate in other recreational activities. The reason is that the legislation — subparagraph 118.4(l)(d) — specifically exempts any consideration of any of these activities as a “basic activity of daily living”. The reverse should also hold true in that the ability to carry out those activities should not prevent consideration of any extreme difficulties in the management of bowel elimination merely because a person has been able to be employed and otherwise have a full existence despite that serious physical impediment. Under 118.4(l)(c)(v) of the Act, “eliminating (bowel or bladder functions),...” is a basic activity of daily living and the elimination function is disjunctive, meaning the Minister of National Revenue cannot rely on the concept of function overlap whereby the appellant can attend to a bladder elimination during the same time frame as taken up by one of numerous bowel eliminations, carried out by emptying the bag or pouch.

Under subsection 118.4(1), the impairment must have lasted, or may reasonably be expected to last, for a continuous period of at least 12 months. That requirement is met by the appellant since the colostomy is permanent. The next condition that must be met is that the appellant’s ability to perform a basic activity of daily living - eliminating his bowel - must be markedly restricted all, or substantially all of the time, when, even with the aid of appropriate devices, such as the attached bag, he is unable, or requires an inordinate amount of time, to perform said basic activity. The operative word regarding the function of evacuating of the bowel is “eliminating”. Therefore, the issue of control over the bowel movement is not relevant in instances where the waste empties into a bag attached to a stoma. It would be significant in the case of an individual suffering from Crohn’s disease, who had not had the corrective surgery creating a stoma, and therefore, when unable to control the bowel movement, was also helpless to handle the elimination because there was no receptacle in place to collect the waste material.

In Brookshaw, supra, the reasons for judgment do not disclose the total amount of time taken up by that taxpayer in attending to bowel elimination but the frequency was between 10 and 20 times a day. I would not want this type of litigation to be reduced to a numbers game, and it may be that a discussion of the time occupied each day should be subjected to a qualitative as well as a quantitative analysis. A substantial amount of time taken early in the morning or late at night prior to retiring, including a trip or two to the bathroom in the middle of the night, could be looked at in a different light than if excessive elimination destroyed the core of the day, generally regarded as corresponding with normal working hours. In the within appeal, the appellant stated that it took three to five minutes, 15 times per day, to attend to the bowel elimination process. The evidence establishes that, for a person with a colostomy, he empties his bag an excessive number of times. He encounters difficulties with adhesion of the bag to the skin and has to put up with problems of leakage when the integrity of the seal is compromised. He also devotes a portion of his time to scouting out bathroom locations. He takes the time and trouble to rinse out his appliance with water. The number of times the appellant empties his bag puts him in the same frequency category as persons with ileostomies where the flow is constant. The appellant does his best to care for himself and to manage the appliance. The problems are serious and frustrating to the appellant but they do not necessarily impact upon the question of whether or not his ability to eliminate his bowel, all or substantially all of the time, requires an inordinate amount of time. It is time that is the key component and not the aggravation that sometimes would make the time actually occupied in managing the emptying of the appliance seem protracted. It is a tough situation for someone to be in and the appellant does his best. As he indicated in responding to the questionnaire, he must deal with stress and the psychological effect of living with an ostomy appliance. I cannot, however, find on the evidence that, as in Brookshaw, all of his decisions and actions can be seen to “evolve around” his disability from the standpoint of the time required by him each day, on an ongoing basis, to perform that function. On an average day he spends between 45 and 75 minutes attending to elimination pertaining to bowel function. I do not accept that it has been established this amount of time is inordinate. My view of the law is such that I cannot find the Minister of National Revenue is incorrect disallowing the disability tax credit as claimed. I am aware that pursuant to section 18.28 of the Tax Court of Canada Act, the decisions on appeals heard under the Tax Court’s informal procedure are not to be considered as a precedent for any other case. However, while not bound by the strict rules of stare decisis, I have been assisted in my decision-making process by the reasons stated in the cases referred to herein.

I do not find the relevant provisions of the Act suffer from any ambiguity that would require me to undertake any journey in order to seek elucidation by resorting to the standard tools of statutory construction. Indeed, the language of Parliament is very clear and precisely defines what is and what is not to be considered a basic activity of daily living. It has also been crafted to allow for the ameliorative effects of appropriate devices and medications and thereafter still demands an inability (or requires an inordinate amount of time) to perform a specified activity. It is plain, hard legislation designed to keep the door closed for all but the most egregiously handicapped individuals and this is not well understood by taxpayers nor by their physicians who are aware of the serious extent of the medical problem but not as it relates to requirements under the Act. To compound the problem, an individual may receive the disability tax credit in one year and be denied in another, perhaps due to the vicissitudes that, sometimes, are part of the reassessment process. As well, the law can be applied in an uneven manner among persons who share the same disability and who are known to each other, with one having received the credit and the claims of others having been disallowed. These are matters which arise from the administration of the tax collection process and are not capable of being addressed by this Court. For the reasons set forth herein, the appeal is hereby dismissed.

Appeal dismissed