Clement v. R., [1996] 1 CTC 2560 (Informal Procedure)

Christie A.C.J.T.C.: — These appeals are governed by the informal procedure prescribed by section 18 and following sections of the Tax Court of Canada Act.

The issue is whether the appellant is entitled to disability tax credits in respect of his 1992 and 1993 taxation years. I emphasize that the years under review in these appeals are 1992 and 1993 because a good deal of what is before the Court regarding the appellant’s mental and physical condition relates to post-1993. What has just been said is not to suggest, however, that evidence of a person’s medical condition after a specified time cannot shed light on his medical condition prior to that time. In some circumstances it undoubtedly can. The appellant’s condition has been deteriorating since he was injured on June 30, 1992.

The notice of appeal reads:

I wish to appeal the decision made by the Minister of National Revenue dated 6 Jan 1995, based on my presentation, and further supporting medical evidence.

I elect the informal procedure.

Paragraphs I to 6 inclusive of the reply to the notice of appeal read:

1. The Notice of Appeal contains no facts to either admit or deny, but so far as there are facts, they are specifically denied.

2. In computing his tax liability for the 1992 and 1993 taxation year, the Appellant, inter alia, did not make any claim for the credit for mental or physical impairment, (the “Disability Credits”) in the amount of $4,233.00 each year.

3. The 1992 income tax return was initially assessed March 5, 1993 and the 1993 income tax return was initially assessed March 10, 1994.

4. The Appellant filed a notice of objection by way of letter received September 27, 1994, where he requested the Disability Credits be allowed in the 1992 and 1993 taxation years.

5. In response to the notice of objection, the Minister of National Revenue (the “Minister”) issued a notification of confirmation of the assessments, thereby denying his request for the Disability Credits.

6. In so assessing the Appellant, the Minister made the following assumptions of fact:

(a) the Appellant submitted prescribed form T2201 which was certified by a medical doctor, stating the Appellant did have a prolonged impairment;

(b) the effects of the impairment did not markedly restrict the Appellant’s ability to perform a basic activity of daily living in the 1992 and 1993 taxation years.”

Subsections 118.3(1) and 118.4(1) of the Income Tax Act (“the Act”) provide:

118.3(1) Where

(a) an individual has a severe and prolonged mental or physical impairment,

(a.l) the effects of the impairment are such that the individual’s ability to perform a basic activity of daily living is markedly restricted,

(a.2) a medical doctor, or where the impairment is an impairment of sight, a medical doctor or an optometrist, has certified inprescribed form that the individual has a severe and prolonged mental or physical impairment the effects of which are such that the individual’s ability to perform a basic activity of daily living is markedly restricted,

(b) the individual has filed for a taxation year with the Minister the certificate described in paragraph (a.2), and

(c) no amount in respect of remuneration for an attendant or care in a nursing home, in respect of the individual, is included in calculating a deduction under section 118.2 (otherwise than by reason of paragraph (2)(b. 1) thereof) 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 $4,118 where A is the appropriate percentage for the year.

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 position taken by counsel on behalf of the respondent is that the appellant’s ability to perform a basic activity of daily living is not markedly restricted within the meaning of paragraph 118.4(l)(b) of the Act.

The appellant served in the Canadian Armed Forces from July 1960 until his release in January 1994. At the time of his release he held the rank of Warrant Officer. On June 30, 1992, he was seriously injured when participating in parachuting. In July 1993 steps were being taken to retire him on account of his age. He objected to this. The following October he commenced terminal leave and, as just mentioned, he was released in January 1994. His release was effected under Queen’s Regulations and Orders, article 15.01, item 3b. That item reads: “On medical grounds being disabled and unfit to perform his duties in his present trade or employment, and not otherwise advantageously employable under existing service policy.” After the accident and until his release his ability to perform any military duties was severely restricted. At the hearing the appellant described in some detail the effects of the accident. That description included matters up to the date of the hearing. I am satisfied that the injuries he sustained has had serious debilitating and painful consequences that have been progressive in nature.

The only witnesses at trial were the appellant and Dr. Robert Bertrand, who testified on behalf of the respondent. A number of documents were placed in evidence by the appellant and by counsel for the respondent. It is unnecessary to make particular reference to all of them and I shall concentrate on those I regard most significant. Exhibit R-l is a form completed and signed by Dr. G. E. Coppola, a physician practising in Calgary. He is currently the appellant’s personal physician. It reads:

DISABILITY TAX CREDIT MEDICAL REPORT

Date: May 31\94 Reference Number: 614050029

1. This is a medical report for the Disability Tax Credit. Dr. Coppola is requested to complete both sides of the report in accordance with the Income Tax Act, Sections 118.3 and 118.4 for the tax years 1992.

2. Payment for this report is the responsibility of the person claiming for the Credit. However, this department will assist the applicant by paying up to $50.00 directly to you to help defray the cost.

3. Please promptly return the report completed and signed along with your invoice in the self-addressed postage-paid envelope.

Part A - Name of Disabled Person

Name: Warren Ernest Clement

Address: 76 Ceduna Park S.W.

Date of Birth: 17 June 1943

Part B - Eligibility Criteria

1. Has your patient a prolonged impairment that has lasted, or is expected to last, continuously, for a period of 12 months? Yes [X] No

2. Has your patient a severe impairment? Yes [X] No

3a. If yes, do the effects of this severe impairment markedly restrict his ability to perform a basic activity of daily living (listed below) all or substantially all of the time? Yes No [X]

3b. If yes, do the effects of this severe impairment render your patient unable to perform a basic activity of daily living even with the use of appropriate aids/assistance, medication or therapy? Yes No

3c. If you answered yes to 3a and/or 3b, please list the contributing medical condition(s):

If there is a marked restriction, please give the date of onset in which this marked restriction affected functional capacity.

IMPORTANT:

- The eligibility criteria refer only to BASIC ACTIVITIES OF DAILY LIVING (survival skills) of an individual.

- For the purposes of the Disability Tax Credit, basic activities of daily living do not include activities like recreation, employment, housekeeping and maintenance tasks, social interactions or health interventions.

- When assessing a child for the purposes of the Disability Tax Credit, consider the following factors: the child’s developmental progress as assessed from birth to three years of age in relation to the norm; and the prognosis of the condition, as it affects the child’s ability to perform basic activities of daily living as assessed after the age of three.

Feeding and dressing oneself

Can patient drink from a cup? Yes [X] No

Can patient use utensils to feed himself/herself? Yes [X] No

Can patient dress upper body? Yes [X] No

Can patient dress lower body? Yes [X] No

If no, describe assistance needed and frequency:

Bowel and bladder function

Does your patient have control of elimination? Yes [X] No

If no, describe assistance needed and frequency:

Walking

Can patient walk 100 metres (1 block) with or without an aid? (list aid(s) used) Yes [X] No

If no, why?

Cognitive functions

Is your patient able to perceive, think or remember? Yes [X] No

If no, can patient do:

(a) personal care (hygiene) without supervision? Yes/No

(b) manage personal affairs? Yes/No

If no, what degree of supervision is necessary?

Speaking

Can your patient speak so as to be understood in a quiet setting with another individual who knows your patient? Yes [X] No

If no, describe assistance needed:

Vision

Is patient legally blind (bilateral visual deficit) even with the use of aids (visual acuity of 20/200 or 20 degrees or less visual field in both eyes). Blind Person's Act, 1962. Yes No [X]

If yes, please explain:

Hearing

Is your patient deaf to the extent that he or she is, even with the use of aids, unable to understand a conversation in a quiet setting with another individual who knows the patient? Yes No [X]

If yes, please provide an audiogram for the year(s) being claimed.

Please attach all additional pertinent medical information.

Physician/Optometrist Name: G. E. Coppola

Address: 12-523 Woodpark Blvd. S.W., Calgary, Alta.

Provincial License Number: 8085 Alberta

The appellant submitted that this report would have reflected a more serious medical condition had he not been “in denial” at the time it was made. That is to say, the appellant was even denying to himself the true seriousness of his medical condition. On June 29, 1994, Dr. Coppola wrote this letter to Revenue Canada: The above named has only recently come under

my care after his discharge from the military. I have just received your request for further information (previous information had been sent to you by his military physician) regarding his claim for the disability tax credit. I unfortunately filled this out and mailed it without complete knowledge of his situation. He apparently, as a result of injuries sustained in a parachuting accident, has restrictions in his daily living activities. He requires assistance from his wife with dressing, tying shoes, cutting of his food, some aspects of hygiene such as hair washing. This assistance is required most of the time for many aspects of day to day functioning. He requires the use of aids such as shower seat and bathroom bars for bathing and showering.

I apologize for my initial report not being accurate but I have not known him long enough to have known the impact his disability has on his life.

On September 18, 1994, Dr. Coppola wrote a further letter to Revenue Canada. It reads:

The above named is a patient under my care. He is appealing the decision of the Advisory Board regarding his claim for disability tax credit.

As I indicated in my letter of June 29, 1994 Mr. Clement requires the assistance of his wife in many of the activities of daily living such as dressing, tying of shoes, cutting of his food for eating, and some aspects of hygiene such as hair washing and bathing. He requires a cane for ambulation and various aids within the home such as shower seats and bathroom bars for toileting, bathing and showering. He also suffers from various cognitive problems such as memory impairment, difficulty concentrating, and emotional lability.

These impairments are felt to be severe and very restrictive to his daily living and are likely to be prolonged. Thus he is appealing your decision in light of this information.

Finally on October 5, 1995, (5 days before the hearing of this appeal) Dr. Coppola sent this letter to counsel for the respondent:

I have been requested by Mr. Clement to provide you with additional information regarding my completion of his disability tax credit forms.

He continues to have problems as previously outlined in my letters of June 29 and September 18, 1994 as well as increasing problems with back pain for which he will be seeing an orthopedic surgeon in the very near future. As well he has increasing urinary frequency and bowel frequency and urgency. These problems along with the previously outlined activities of daily living that require assistance from his wife or require longer than usual to perform such as dressing, bathing, hair washing, preparing food or cutting his food pose significant problems in his day to day existence.

Based on these factors I have completed the disability tax credit form as I believe he meets the criteria.

Exhibit A-3 is a form completed by Dr. Bernier, a Major in the Canadian Armed Forces. It reads:

Disability Tax Credit Certificate

Note: Please read the instructions on the attached information sheet carefully. It is important that you understand the eligibility requirements, and that you complete this form properly.

Part A - This part is completed by the applicant or representative (please print). - For more information, refer to the pamphlet, Tax Information for People with Disabilities, which is available at your district taxation office.

A. Name of person making this claim: Warren E. Clement

B. Address of person in box A: 76 Ceduna Park S.W., Calgary, AB T2W 6H4

C. Social insurance number of person named in box A: 614 050 029

D. Name of disabled person

Self [X] or

E. Maiden name of disabled person

F. Date of birth of disabled person: 17 June 1943

G. Social insurance number of disabled person

H. Relationship of disabled person to person named in box A

I. Address of disabled person

J. I hereby apply for the disability tax credit in accordance with the provisions of section 118.3 of the Income Tax Act. I understand that Revenue Canada, Taxation’s medical advisory service, Health and Welfare Canada, may ask for more information to ensure that the eligibility criteria have been met.

Signature of applicant or representative: W.E. Clement

Date: 08/12/93

Telephone number: 403 251-1539

Note: The applicant will pay any medical assessment or form completion fees to have Part B of this form completed by a medical doctor or optometrist authorized to practise as such. Provincial medicare plans do not cover these fees.

Part B - This part is completed by the medical doctor or optometrist who is knowledgeable about the disabling condition(s) for the year being claimed. Please print all pertinent information. - For more information, see the “Eligibility Criteria Guidelines” on the attached information sheet, as well as the pamphlet How to Assess Disabilities for Income Tax Purposes, which is available to doctors and optometrists at the nearest district taxation office.

I. PARTICULARS OF DISABILITY Date the impairment began

Y MD D 92 06 30

The duration of the impairment is permanent [X] temporary

If temporary, give the date the impairment ceased or is likely to cease Y M D

II. Category of impairment causing the individual to be markedly restricted all or substantially all of the time in his or her ability to perform basic activities of daily living (see Eligibility Criteria Guideline 3 on the attached information sheet). Check (X) the following boxes as they apply. Impairment causes increased amount of time (due to pain & decreased right shoulder range of movement) to perform some physical activities (getting in/out of car, walking, dressing, showering, etc.). Sometimes requires help from spouse.

1. Vision CNIB registration number (if applicable)

2. Mobility [X]

3. Communication

4. Mental functions

5. Other disabling impairments

III. Diagnosis of disabling condition outlined in Part II above and any other associated conditions causing the marked restriction in ability to perform basic activities of daily living. (Please print). Residua of severe comminuted fracture with intra-articular involvement of right proximal humerus (surgical neck, undisplaced lesser tuberosity, mildly displaced comminuted greater tuberosity) and wedge compression fractures of T7 & LI.

Resulting decreased right shoulder range of motion (marked) and back and shoulder pain chronically. Decreased right arm bulk and strength. Back pain with all range of motion and tenderness about fracture sites.

R Shoulder - abduction max 801, no external rotation, minimal internal rotation tender R shoulder capsule, upper & bicipital greater tuberosity shoulder girdle muscle hyperpathia R Elbow - .101 flexion deformity, loss of supination to approx. 201

IV. Description of how the effects of the disabling condition outlined in Part II above and any other associated conditions cause the individual to be markedly restricted in his or her ability to perform basic activities of daily living. See “Eligibility Criteria Guidelines” on the attached sheet. (Please print).

Date marked restriction began Y M D 92 06 30
Duration of marked restriction (Not to be confused with diagnosis)	18
months

Limited ROM R arm and back movement from mechanical obstruction & pain cause significant increase in time necessary performing any activity involving R arm/back movement or strength. Activities requiring heavy use of both arms usually not possible without assistance.

In my opinion, the disabled individual named above has met the eligibility criteria of a prolonged impairment that markedly restricts all or substantially all of the time his or her ability to perform (some) basic activities of daily living. increases time necessary (or requires help to) substantially all of the time

Signature of medical doctor or optometrist: JRS Bernier, Maj, BSurg Date: 14 Dec 93

Telephone number: 403 240-7690

I understand that I may be requested by Revenue Canada Taxation’s medical advisory service, Health and Welfare Canada, to provide additional medical information concerning the medical history of the disabled person named above.

Name of medical doctor or optometrist (please print): JJ-RS Bernier, Maj, BSurg Address of medical doctor or optometrist Base Hospital, CFB Calgary, Alta T3E 1T8.

On October 2, 1995, (8 days before the hearing of this appeal) Dr. Bernier sent this letter to counsel for the respondent:

Mr. Clement has requested that I provide additional clarification concerning my comments on his subject application dated 14 December 1993.

The printed statement on the form asked if Mr. Clement’s condition markedly restricted all or substantially all of the time his ability to perform basic activities of daily living. The answer to this depends to a significant extent on one’s definition of “markedly” and “substantially”. I therefore crossed a portion out in order to provide a more specific description of his restrictions.

As indicated in my comments, Mr. Clement was capable of performing most activities of daily living but generally only with assistance or at a slower pace than normal as a result of restricted mobility and pain due to his injuries. He would, for example, be capable of brushing his teeth, combing his hair, eating, etc. without much difficulty. He would, however, have a markedly restricted ability to negotiate stairs and obstacles, take food containers down from cupboards for meal preparation, do maintenance work in his home, take out the garbage, cut the lawn, take a walk, climb in and out of his car, dress himself, take a shower, play with or pick up children, carry and store groceries, move furniture, etc. All of these activities would either be impossible for him without assistance, or would require significantly more time than normal. They would also generally result in some exacerbation of his pain.

In summary, Mr. Clement was capable of normally performing those activities of daily living which required little mobility, strength or agility. He was markedly restricted in his ability to independently or at a normal pace perform activities which required normal mobility, strength or agility.

On February 15, 1994, Captain R. W. Hirlehey, also of the Canadian Armed Forces, prepared a document addressed: “To Whom It May Concern”. It reads:

When Warrant Officer W. E. Clement was attach posted to Canadian Forces Base Calgary as the Base Operations and Training Branch Warrant Officer he established this new position. The Base Operations and Training Branch had been instituted the year before, when Canadian Forces Base Calgary became a separate entity from 1 Canadian Mechanized Brigade Group. Therefore, Warrant Officer Clement was responsible to assist in the organizing and creating of a new Branch. When I took command of the Branch, in April 1992, Warrant Officer Clement had distinguished himself as a knowledgeable, enthusiastic and methodical individual.

Warrant Officer Clement monitored all aspects of the Branch’s diverse operations, and often gave sound advice on how to improve an aspect of the organization. He approached all tasks energetically, ensuring that everything was completed to the best of his ability. A prime example of this was the manner in which he organized over 300 cadets to set up a bivouac site during a torrential rain storm. With no consideration for himself, he worked and coordinated the entire operation incessantly for over eight hours. Ensuring, as each unit arrived, that they quickly and efficiently set up their tent lines so the cadets could get out of the storm. Always animated, he inspired others to continue working in the worst of conditions. This is the manner in which Warrant Officer Clement approached all of his work. As the Branch Warrant Officer, he was a proud and dedicated soldier, who maintained a high standard of dress, deportment and discipline within our Branch.

Warrant Officer Clement’s unquestionable loyalty and dedication was conveyed to his family, as well as the service. This was demonstrated in the manner in which he spent many hours upgrading his education, as he prepared for retirement. Utilizing the same analytical techniques, which he applied at work, he identified his shortcomings and took courses to achieve his goals (High School Equivalency and computer training). He tirelessly pursued his education to ensure that he would be marketable after retirement, so he could continue to support his family by the best means possible.

When Warrant Officer Clement volunteered for one last Tactical Airlift Exercise (Parachute Jump), he did this because he believes that soldiers must always challenge themselves to maintain a standard of excellence. It was a fatal decision. His injuries on that drop zone, 30 June 1992, has had a devastating effect on Warrant Officer Clement’s abilities, both physically and mentally.

When Warrant Officer Clement returned to work in late August, it was immediately apparent that he could not fulfill all of his duties as the Branch Warrant Officer. The pain, which he was constantly in, restricted the amount of travelling that he could do during the day. With the Branch spread throughout the two garrisons, he could not continue to monitor the sections’ activities any more. He was limited to office work, so I designated him the Base Tasking Officer, as well as the nominal Branch Warrant Officer.

Throughout the Fall and Winter of 1992/93, Warrant Officer Clement proceeded on a series of management consulting courses, which he had been nominated for prior to his accident. However his performance was severely impaired because of his incapacitation caused by his injuries and the effects of the medication on his mental ability. His analytical capacity, which had been a strength of his, was very limited. The staff on the course gave him a conditional pass because of the effort he displayed, although his performance barely met the minimum standard. This result did not reflect Warrant Officer Clement’s previous achievements. It was intended that this instruction would not only assist the Branch to further improve its operation, but would benefit Warrant Officer Clement once he retired from the military. Unfortunately, nothing substantial was gained from this experience.

Upon returning to work following his courses, I relieved Warrant Officer Clement of his Branch Warrant Officer duties, because he was unable to meet my requirements. He was relegated solely to basic staff work as the Base Tasking Officer. It became obvious that his injuries were having an ever increasing debilitating effect on his performance. Eventually the doctor restricted him to a half day of work. By April, his mental condition began to decline to where he could not concentrate on his work. On the first occasion that it had an adverse affect on the soldiers, I dismissed him from all duties. It was apparent that he could not perform any functional service in my Branch.

I deeply regretted his dismissal, especially knowing what Warrant Officer Clement was previously capable of, but it could not be avoided. He is unable to be productive in any reasonable manner. He cannot perform any physical tasks, nor can he be relied upon to accomplish office work which requires concentration or any acceptable length of labour. There is no job which Warrant Officer Clement could be employed in within the military, and I believe that no civilian employer would hire him in his present condition. This is a terrible state of affairs for Warrant Officer Clement, as he is a very proud man, who will find the restrictions of his debilitation very difficult to accept.

If you wish to discuss Warrant Officer Clement’s previous performance or present condition any further, please contact me at (403) 240-7088.

I now come to the evidence of Dr. Bertrand. Filed as Exhibit R-6 is a case history pertaining to the litigation at hand. The co-author of the exhibit is Dr. Armand Arsenault. Both are Fellows of the Royal College of Surgeons of Canada. Dr. Arsenault was not called as a witness. Dr. Bertrand was accepted as being qualified to give expert evidence regarding what is in issue in these appeals. The exhibit is dated May 31, 1995, and includes a case summary; the qualifications of both doctors; a list of documents that were reviewed. It is stated that: “A review of the medical file is made in relation to the definition of basic activities of daily living in section 118.4 of the tax law.”

Included in Exhibit R-6 is copy of the disability tax credit medical report prepared by Dr. Coppola and copies of the letters dated June 29, 1994 and September 18, 1994, that he sent to Revenue Canada. His letter of October 5, 1995, is not part of R-6, but it should be noted that Dr. Bertrand was in Court while the appellant testified and, of course, he has been in consultation with counsel for the respondent to whom the letter of October 5 was addressed. I observe that to my mind that letter does not add anything of real substance to what Dr. Coppola said prior to October 5 about the appellant’s medical condition.

Also included in R-6 is the Disability Tax Credit Certificate dated December 14, 1993, prepared by Dr. Bernier. In this regard Dr. Bertrand stated that Dr. Bernier’s letter of October 2, 1995, addressed to counsel for the respondent did not lead him to change the conclusion he had previously arrived at regarding these appeals.

I will make specific reference to two more documents in R-6. The first is the report of the Canadian Pension Commission dated March 11, 1994. It relates to the appellant and deals with “compression fractures T7 AND LI, fracture right humerus, hearing loss.” These are said to have resulted from the previously mentioned accident of June 30, 1992. The Commission found entitlement in respect of the fractures, but not regarding hearing loss. The second is a National Defence document dated October 25, 1993. It reads:

PROTECTED B

NATIONAL DEFENCE HEADQUARTERS

CAREER DISPOSITION

SUBJ: NDHQ CMRB 27 JAN 94 CAREER DISPOSITION

D39 514 994 WO CLEMENT W 17 JUN 43 CRMN 011

1. LIMITATIONS

G4

-unfit field, sea UN or isolated postings

-physician services required

04

-light duties only

-medically restricted PT

-no drill, no marches

-no push-ups, no sit-ups

2. SUITABILITY FOR EMPLOYMENT

These limitations restrict WO Clement to 2 percent employability in the established positions in his current rank and occupation.

3. DISCUSSION

Although on release when assigned the current limitations, WO Clement would have been unable to perform CRMN or military duties had he remained.

4. BOARD DECISION

Following a thorough review of the above medical statement prepared by the Director Health Treatment Services, the recommendations of the Commanding Officer, Career Manager, and all other pertinent information in consideration of WO Clement’s case, the Board has made the following decision:

(a) It was noted that WO Clement was released 5(a). However, the Board agreed that there would have been no option but to release WO Clement under the provisions of QR&O Articles 15.01 Item 3(b), on medical grounds, being disabled and unfit to perform his duties in his present trade or employment, and not otherwise advantageously employable under existing service policy. Therefore, it is considered that in WO Clement’s case, 3(b) is the most appropriate release item.

(b) Additionally, the Board considers that WO Clement is medically suitable for transfer to the Supplementary Reserve.

MEDICAL STATEMENT:

WO Clement is a 50 year old Crmn who has been assigned a medical category of G4 04, on release, for pain in the right arm. He sustained a fracture of the right humerus in a parachute accident in Jun 92. Since then he has had pain in the right arm with decreased strength, decreased range of motion and numbness. He may have to undergo further surgery after his release.

Limitations are:

G4

-unfit field, sea, UN or isolated postings

-physician services required

04

-light duties only, medically restricted PT, no drill, no marches no push-ups, no sit-ups

The appellant contends that paragraph b. of the Board’s decision is wrong. He says that he could not at that time meet the medical requirements for the supplementary reserves established by National Defence.

I am satisfied on the whole of the evidence that Dr. Bertrand is correct in his conclusion that in 1992 and 1993 the appellant did not fall within the ambit of subsections 118.3(1) and 118.4(1) of the Act. The language of those provisions is stringent and, as authority cited at the hearing show, that is the manner in which it has been applied. The most recent case is the unreported reasons for judgment dated March 22, 1995, in Craven v. R. (sub nom. Craven v. Canada), [1995] 2 C.T.C. 2883. In that case reference is made to the “rigid criteria” set out in the legislation.

The appeals are dismissed.

Appeals dismissed.