Joseph Debodt and Shirley Debodt v. Her Majesty the Queen (Informal Procedure), [1995] 2 CTC 2031

Rowe J.T.C.C.:-The appeals of Shirley DeBodt and her husband, Joseph DeBodt were heard together on common evidence with respect to the 1992 taxation year of each of the appellants.

The appellant, Shirley DeBodt in filing her income tax return for the 1992 taxation year claimed a disability tax credit of $719.51 in computing her tax payable for the year. As reported in that income tax return the amount of such credit so claimed was more than sufficient to reduce the appellant’s tax payable for the year to nil, and accordingly, part of the amount of such tax credit to the extent that it was not necessary for such reduction was transferred by the appellant to her spouse pursuant to the provisions of section 118.8 of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the ’’Act”).

However, the Minister, reassessed the appellant for her 1992 taxation year, and in so doing disallowed in its entirety the disability tax credit claimed by her for that year, and of course, the effect of that carried over with respect to the unused portion affecting her husband.

In confirming the appellant’s reassessment for the 1992 taxation year, the Minister made certain assumptions of fact, namely, that the appellant did not have a severe and prolonged mental or physical impairment at any time in the year, and the effect of the appellant’s mental or physical impairment was not such that her ability to perform a basic activity of daily living within the meaning assigned by paragraph 118.4(1 )(c) of the Act would be markedly restricted at any time in the year.

The issue to be decided in the appeal is whether the Minister properly disallowed the disability tax credit sought to be deducted by the appellant in computing her income tax payable for the 1992 taxation year.

The evidence of the appellant, Shirley DeBodt established that since 1985 she has suffered from Crohn’s disease, a chronic condition affecting the bowel, referred to as an inflammatory bowel disease, yet a disease where the cause is not known and for which there is no cure.

The appellant had surgery in 1985 and again in January 1993. She stated that since 1985 she could count on the fingers of both hands, that is, not more than ten occasions since 1985, when she had one or two bowel movements in a particular day. She stated she has never been constipated even during periods where some symptoms of blockage were noted in a medical report relating to the times in which she had surgery. She stated she was either allergic to, or suffers side effects from, various medications prescribed in an attempt to alleviate the severity of the diarrhea which is present each day of her life. The appellant testified that every day of her life she is up at 5:30 a.m. and will often have between six and ten bowel movements in the morning. She states she cannot be certain during the course of a brief walk that she will not be stricken by a compelling need to eliminate her bowel.

She lives in a small village on Vancouver Island and restricts her walking and shopping activities to daytime hours so that she has relatively instant access to bathrooms located at various points around the village. Her life revolves around her accessibility to a bathroom. For years, and certainly throughout 1992, she suffered incontinence and has experienced, on numerous occasions, the embarrassment of having soiled herself. When She is in control she often only has seconds, and certainly no less than a minute or so, in which to find a bathroom. Her travel arrangements depend on access to a bathroom, as do all other aspects of her life.

I appreciate the evidence of Doctor Sutherland, the medical expert testifying for the respondent. However, it is clear that Shirley DeBodt is an individual who falls outside of the parameters of the typical, if there is such a person, sufferer of Crohn’s disease.

The appellant does not get relief from medication, although Prednizone did assist in reducing pain. The appellant explained that she does not have the luxury of suffering from a flare-up because her disease never goes into remission from the standpoint of the difficulty she suffers in relation to bowel elimination.

The appellant testified that this very morning she had attended to bowel elimination seven times between 5:00 and 9:30 a.m. and that arising so early in the morning each day makes her very tired and she is, therefore, in bed by 9:00 or 9:30 at night.

Upon attending Court, one of the first things she did was to scout a location of a bathroom, which fortunately was within a few metres of the court room and she indicated that it might be necessary for her to leave, and she did in fact leave on more than one occasion during the course of the appeal.

It is necessary to look at the wording of the particular legislation at issue, namely, subsection 118.4(1) of the Income Tax Act. There is no doubt that in 1992, and in fact, since 1985 that the appellant suffers from Crohn’s disease which is an impairment which has lasted for a continuous period of 12 months.

The issue is whether or not there is a marked restriction all, or substan- tially all of the time, relating to a basic activity of daily living, in this case eliminating bowel or bladder. The evidence before me indicates that the appellant’s life, in effect, revolves around the problems in bowel elimination and that this has a drastic effect on her daily life on a continuous or almost continuous basis, and that it is present all, or substantially all, of the time.

It is clear that she requires an inordinate amount of time to eliminate her bowel on a continuous basis ranging to 98 per cent of each year in which bowel movements occur between six and 12 times per day, often unpredict- ably and uncontrollably.

She indicated in her testimony that 85 per cent of the time she barely makes it to a bathroom, and this carries with it the attendant worry and frustration and that she has on several occasions not been able to attend at a bathroom and has to attempt to return home, either by walking or in a car, at a point in which she was not able to control her elimination and she has soiled herself. This is a terrible, terrible situation for an individual to face.

In a decision by the Honourable Judge Hamlyn of the Tax Court of Canada in the case of B rooks haw v. Canada, [1994] 2 C.T.C. 2360, Judge Hamlyn dealt with the situation of the taxpayer who had no control over her bowel function and was required on a continuous and constant basis around the clock to attend to her elimination needs by attending at washrooms and emptying the bag. In that situation the bag overflowed from time to time which resulted in very unpleasant consequences.

In that particular decision Judge Hamlyn considered whether in that taxpayer’s situation the bowel problems constituted an inordinate amount of time to perform that daily basic activity of daily living. Judge Hamlyn referred to the Oxford English Dictionary, Second Edition, volume 7, Oxford University Press 1989 at page 1003 in which the definition of inordinate was given as follows:

(1) not ordered, devoid of order or irregularity, deviating from right or rule, irregular, disorderly, and

Secondly, not kept within orderly limits, immoderate, intemperate and excessive.

And further, from the Oxford English Dictionary, Second Edition, volume 1, 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...significance of import, and

(3) the quantity or sum viewed as a total.

In the Brookshaw case, supra, Judge Hamlyn was able to conclude that the total amount of time that the taxpayer spent performing the bowel function, as well as the constant monitoring that was necessary, was in fact irregular and required an excessive amount of time to manage. Judge

Hamlyn noted in that case that: ’’all of the appellant’s life decisions and actions evolved around her disability”.

In this particular instance the same thing can be said, and in fact, the level of disability sustained by Mrs. DeBodt, in my opinion, not having a bag attached to herself for the purposes of bowel elimination, is in fact worse.

Accordingly, therefore, in my view, the appellant properly qualifies, and her appeal is allowed.

The assessment is referred back to the Minister for reconsideration and reassessment on the basis that the disability tax credit be allowed for the 1992 taxation year. She is also entitled to costs.

The appeal of Mr. DeBodt, Joseph DeBodt is also allowed for the 1992 taxation year and the assessment is referred back for reconsideration and reassessment on the basis that he be entitled to the unused portion of the disability tax credit of Shirley DeBodt pursuant to the provisions of section 118.8 of the Income Tax Act. Because these matters were heard on the basis of common evidence he is not entitled to any taxable costs.

Appeal allowed.