Sanders v. R., [1996] 1 CTC 2617

Bonner J.T.C.C.: - The issue in this appeal is whether the Appellant is entitled under section 118.3 of the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1 (the “Act”) to a disability deduction for 1992 in respect of the physical impairment of his daughter Catherine. The deduction was denied by the Minister of National Revenue on the basis that the effects of the impairment in question do not meet the test laid down in paragraph 118.4(1)(b) of the Act.

Sections 118.3 and 118.4 provide in part:

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 in prescribed 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.l) 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...

and a formula follows.

Subsection 118.4(1) of the Act provides:

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 or daily living.

The Appellant, Kenneth Sanders, gave evidence at the hearing of the appeal. His daughter, Catherine Sanders, was born in 1987. At the age of five, she was diagnosed as having Type I insulin-dependent diabetes mel- litus. It is a chronic or permanent disability with no known cure.

The disease has proven to be a burden on both Catherine and her family. Catherine is required to take three daily insulin injections and to eat a strict diabetic diet divided into six meals a day. In addition, she must take four daily blood tests in order to monitor her blood glucose levels because there is a danger of developing hyperglycaemia or hypoglycaemia. In 1992 Catherine did develop hypoglycaemia, about five or six times a month. Each time the problem was detected and corrected.

The child’s lifestyle is somewhat restricted. She is not able to play for long periods of time because she must avoid excessive fatigue. Her behaviour, food intake and activities must constantly be monitored by her parents. It was necessary to remove her from a school when the teacher was found to be unable to provide proper supervision.

The Respondent argues that the requirements of this section have not been met because Catherine’s ability to perform the basic activities of daily living enumerated in paragraph 118.4(1)(c) was not markedly restricted. She was, to the extent consistent with her age, able to perform those activities except on the relatively infrequent occasions when blood sugar levels moved outside the permissable boundaries. Those infrequent incidents did not, according to the Respondent’s argument, meet the “all or substantially all of the time” test laid down in paragraph 118.4(l)(b). In my view, having regard at the evidence produced at the hearing, that submission is well founded.

The Appellant argued that his daughter’s ability to perform basic activities is markedly restricted because he and his spouse were required to feed Catherine and to monitor her diet, activities and behaviour. Despite the sympathy which I feel for this family I cannot offer relief based on considerations which are not relevant under the statute. It is the ability of the individual to perfom a basic activity which is relevant. Paragraph 118.4( 1 )(b) requires that the inability exist even when appropriate medication is taken. Catherine’s condition does not prevent her from leading what is, for a child of her age, a reasonably normal life provided she takes her insulin and controls the level of sugar in her blood.

The present case is not in any essential way different from Moore v. R. (sub nom. Moore v. Canada), [1995] 2 C.T.C. 2538, Salvail v. R. (Salvail v. The Queen), (January 24, 1995) T.C.C. 94-1402(IT)I and 94-2708(IT)I (unreported) and Sincock v. R. (sub nom. Sincock v. The Queen), [1995] 2 C.T.C. 2449, 95 D.T.C. 535. Those cases were, in my respectful view, correctly decided and must be followed. I cannot follow the decision of this Court in Mantle v. R. (sub nom. Mantle v. Canada, [1995] 1 C.T.C. 2918. In that case the Court does not appear to have given effect to the words “even with...the use of...medication” in paragraph 118.4(l)(b).

The appeal will therefore be dismissed.

Appeal dismissed.